Legal Studies Unit 1 Aos3

Principles of Justice

Fairness, Access, Equality

Fairness Definition

all people should be able to understand their legal rights and pursue their case

fairness features

• all people can participate and processes should be impartial and open

• when disputes arise - all parties receive fair hearing (treated impartially without bias)

• people should have opportunity to present case and rebut

• impartial: important part of fairness b/c it links to the judgement being unbiased

• objectivity: dispute decided on evidence provided

fairness requirements

processes involved in determining a case should be fair/impartial:

impartial/unbiased judge/magistrate

independent and unbiased jury

prosecution disclosing case and info to accused

right to legal representation

Equality Definition

people should be equal before the law and have the opportunity to present case without advantage or disadvantage

Equality features

• more resource available (able to find more evidence, more money which allows a party to engage more quality and experienced legal reps

• if equality was not promised, creates disadvantages for: non english speaking background, no familiarity with legal system, criminal history, disability, aboriginals

• treated equally regardless of characteristics or attributes (race, religion, status, culture)

equality mechanisms

• in legal system mechanisms put in place that allow people to be treated differently so they can be treated equally (koori court, translators in court, legal aid, drugs court)

  • treating them the same way would create disparity/disadvantage adequate measures should be taken for them to engage in the legal system

• in some situations it will be required to make adjustments in order to have a party to the case equal e.g. provide an interpreter to someone that doesnt speak english

Access Definition

all people should be able to engage with the justice system and processes on an informed basis

access features

• legal system makes it possible for people to use procedures/methods/institutions that help resolve disputes or determine civil case

• people should have the right to access info about their legal rights so they can understand when they may have been infringed

access includes

• access institutions that will make a final decision in a case

• have contact with bodies/institutions that provide legal advice, education, information and assistance

• have the ability to be informed about cases

access requirements

legal aid, legal representation, koori court

institutions that enforce criminal law

the police: victoria police and australian federal police

other delegated bodies: worksafe victoria and local councils

The Police

• enforce criminal law and maintain public safety

Police main responsibility

• main responsibility includes the prevention, detection and investigations of crimes

  • they have the authority to apprehend individuals suspected of committing criminal offences, gathering evidence and protecting crime scenes

other responsibilities of police

• provide assistance to victims, maintain order, enforce traffic regulations

• works with judiciary by submitting evidence and testifying in court

  • summary: police have power to prosecute cases in court

  • indictable: police undertake investigations, gather evidence, charge the accused persons

    • information gathered is then given to Office of Public Prosecutions who is responsible for prosecutions in court

police powers

summary: can prosecute the case in court

indictable: AFP collaborate with other law enforcement agencies and international bodies to ensure comprehensive crime prevention and enforcement

delegated bodies

delegated bodies: bodies in victoria are given authority by the Vic Parliament to enforce criminal laws

• they are delegated bodies as they are delegated power by the parliament to make/enforce laws

delegated bodies examples

work safe Victoria: responsible for enforcing occupational health and safety laws to ensure safe workplaces

local councils: enforces local laws/regulations (parking, animal control, public health)

delegated bodies responsibilities

maintains law and order within specific areas of jurisdiction, complementing the work of police forces

rights

rights are given to people who are suspected or accused of committing a crime as well as those who are guilty of crimes

powers

investigative and prosecution agencies such as Vic Police and the OPP have powers to enable them to investigate crime and bring offenders to justice

balance between institutional powers and individual rights can be examined through the stages of a criminal case

• arrest

• questioning

• bail

• court proceedings

• imprisonment

Arrest Powers

• Powers of arrest with or without a warrant is found in the Crimes Act

• Police can arrest without a warrant any person who reasonably believed to have committed an indictable offence either in vic or elsewhere

• can use reasonable force when making an arrest, though what is reasonable force depends on the circumstances of the arrest

Arrest Rights

An individual can refuse to attend the police station unless they are under arrest

• if a person is arrested under the Human Rights Charter they must also be informed at the time of the arrest the reason for the arrest

  • also states that an arrested person must be promptly brought before a court and have the right to be brought to trial without unreasonable delay

• a person does not need to say anything except providing their name and address (becomes an offense if they refuse)

Questioning Powers

Under section 464A of crimes act:

• if a person has been arrested and is in custody for being suspected of committing an offence, an investigating official has the power to question that person within a reasonable time

Questioning Rights

The person must be informed that they do not have to do or say anything but that anything they do or say may be given as evidence in court

• the giving of that info must be recorded if the crime is an indictable offence

Person must be informed if they can communicate with or attempt to communicate with:

• a friend or relative

• a legal practitioner

the person has a right to an interpreter

under 18yrs, parent or guardian present

Bail Powers

Right to bail and right to apply for bail are balanced by powers given to the prosecutor to oppose bail, and to the person deciding on bail to refuse bail or impose certain conditions

the prosecutor can also revoke bail

Bail Rights

A person is entitled to bail under certain circumstances.

• the Bails Act states that any person accused of an offense and held in custody in relation to that offense shall be able to apply for bail at certain stages of the criminal proceeding

Court Proceedings Powers

Prosecutors have the power to:

• prepare the case

• speak with witnesses

• obtain evidence

• negotiate with the accused (their legal practitioners) about an early guilty plea

Court Proceedings Rights

Rights are protected by Human Rights Charter and include the right to:

• have the charge or proceeding decided by a competent, independent, impartial court after a fair and public hearing

• be presumed innocent until proven guilty

• be informed promptly and in detail about nature and reasons for the charge

• have adequate time and facilities to prepare the defense

• be tried without unreasonable delay

• have legal aid

Inprisionment Powers

During imprisonment, authorities have various powers, including

• the power to search and examine any person

• seize unauthorized goods

• arrange for medical tests for alcohol or drugs

• require a prisoner to be electronically monitored.

It also includes other powers such as the power to open, inspect, and read a letter sent to a prisoner.

Imprisonment Rights

Every prisoner has certain rights under Section 47 of Corrections Act

• the right to be in the open air for at least an hour each day

• the right to be provided with adequate food (special dietaries if required)

• the right to be provided with suitable clothing

• the right to have access to medical care

ensure individuals are treated fairly and humanely throughout criminal justice process

types of jurisdictions

original jurisdictions

appellate jurisdictions

original jurisdictions

power of the court to hear cases for the first time

appellate jurisdictions

power of the court to hear cases on appeal (for the second time)

magistrates court original jurisdiction

• summary offences, indictable offences heard summarily, committal proceeddings, back and warrant applications

magistrates court appellate jurisdiction

no appellate jurisdiction

county court: original jurisdiction

indictable offences - less serious ones

county court: appellate jurisdiction

from the magistrates court on a conviction or sentence

supreme court: original jurisdiction

trial: serious indictable offences (murder, treason)
appeal: no original jurisdiction

supreme court: appellate jurisdiction

trial: from magistrates court on a question of law

appeal: from county or supreme (with leave)

role of courts in a criminal case

courts have the primary role of adjudicating criminal cases

• they hear evidence presented by the prosecution and the defense

• evaluate the legal arguments

• make decisiosn regarding guilt or innocence of the accused

• determine appropriate sentences for individuals found guilty of criminal offenses

factors considered when determining appropriate sentences for individuals found guilty of criminal offences

• severity of the crime

• the circumstances of the offender

• any relevant sentencing guidelines or laws

evaluation of courts

legally binding

impartial

legally binding

• once a decision is reached by the courts, it is binding and enforceable, meaning parties are legally obligated to comply with the outcome

legally binding, strengths

b/c it upholds the principle of fairness, ensuring that the outcome is final, certain and based on impartial adjudication

legally binding, weaknesses

weakness of courts is that the adversarial nature of proceedings may increase animosity between the parties

b/c court system focuses on win/loss outcome it can cause dissatisfaction or emotional stress and appeals can prolong disputes

undermines access to justice: ongoing legal battles increase costs and delays making it harder for parties to efficiently engage in the legal system and resolve disputes

Impartial

key aspect for a fair trial

• requires decision-maker to be unbiased, and have an open mind when deciding cases

• judges are experts in law, legal processes and ensuring proper procedure is followed and laws are applied correctly

impartial: strength

promote fairness ensuring trials are conducted correctly, impartially and that decisions are made based on accurate interpretations of law

impartial: weakness

• requires legal rep and appeals which increases costs

• undermines access and the accused’s ability to engage on an informed basis

jury system

provides opportunities for community participation in the legal process, and for the law to be applied according to community standards

about the jury system

• acts as an independent decision maker in criminal trials and some civil trials

• used in cases involving indictable offences

• all heard in county and supreme court in their original jurisdiction, before a judge and jury of 12 or more for long trials

• if accused is pleading guilty jury not needed

role of the jury

be objective

listen to and remember evidence

understand directions and summing up

deliver a verdict

be objective

jury must:

• maintain impartiality and neutrality throughout the trial

• avoid personal biases or preconceived notions when evaluating evidence

• focus on the facts presented in court and apply the law objectively

listen to and remember evidence

• actively listen to witness testimonies, legal arguments and other presented evidence

• retain a clear and accurate memory of info presented

• rely on evidence presented rather than external influences when forming opinions

deliver a verdict

jury must:

• collaborate to reach a unanimous or majority decision on the guilt or innocence of the accused

• apply the law to the facts of the case to render a fair and just verdict beyond reasonable doubt

• communicate final decision to court, determining outcome of trial

understand directions and summing up

jury must:

• pay careful attention to instructions

• process complex legal info and instructions for deliberations

• integrate judges summation of case into their understanding of the facts and the law

eligibility to sit on a jury

people are randomly selected for jury duty from electoral rolls

• disqualified

• ineligible

• excused

disqualified

some people disqualified bc of something they did in the past that makes them unsuitable

e.g. convicted an indictable offence, bankrupt, term imprisonment

ineligible

may be ineligible bc of their occupation or their inability to comprehend the task of a juror

e.g. employed in law enforcement (opinion might carry too much weight), cannot read or understand English, physical disability

excused

can apply to juries commissioner to be excused

• must have good reason in doing so such as

• illness or death, incapacity, the distance is over 50km if place in melb, over 60km if place outside melb

challenges for cause

juror may be challenged for a reason, such as knowing the accused

unlimited challenges for cause

peremptory challenges

juror may be challenged without a reason

• usually based on assumption that the juror might favorably disposed to the challenger

evaluation of jury: positives

impartiality and community participation

collective decision making

evaluation of jury: negatives

potential bias

delays

impartiality and community participation

• random selection ensure impartiality and lack of bias

• enhances public understanding of justice - fosters trust in justice process

• ensures fairness as process of jury is open and impartial

collective decision making

• enhances public understanding by providing first hand exposure to judicial proceedings

  • includes individuals from diverse backgrounds to reflect on broad range of societal perspectives

• contributes to more equitable/more balanced approach to justice, regardless of disparities

potential bias

unconscious bias can influence decision making, affecting fairness of verdicts

struggle to grasp complex legal principles: can impact ability to accurately asses evidence/apply law

limits fairness as impartiality may be reduced

delays

jurors aren’t legal experts, court takes extra time to ensure they fully understand case

take more time to reach unanimous/majority verdict (especially with complex evidence or differing interpretations of law)

can limit access to legal system and prevent people from engaging

overall effectiveness of jury

despite weaknesses overall effective due to their impartiality and broad range of perspectives included in decision making process

first nations background info

British colonization and British legal principle of terra nullius wrecked havoc on population

reasons why first nations people would have distrust in the criminal justice system

• colonial massacres

• significant and systemic breaches of human rights

• violence

• death

• dispossession of land

• racism - white aus policy

• forced removal of children from parents

• policies of assimilation

issues of first nations people

disproportionate representation

cultural differences

language differences

distrust in criminal justice system

disproportionate representation

first nations people = 3.8% of population, but 32% of prisoners in aus

in vic 1% of population, but 9% of prisoners

due to:

• socioeconomic advantage

• disempowerment

• intergenerational trauma

• discrimination

cultural differences

• customary law has a disconnect with contemporary law

• in customary law elders determine the sentence and may carry out the punishment as well

• contemporary law does not meet the same objectives or outcomes as customary law

  • consequence of action

  • immediacy of sequence

elders play a large role in first nations communities and as respected people they should have significant influence over the consequences

language differences

• first language is not english, and english is a difficult language to learn

• often there are interpreters and they don’t have to interprets words but all communicate concepts

address issues

• dedicated funding for aboriginal legal aid, to ensure that professional and culturally appropriate legal services are available to first nations people

• developing specialized courts and programs e.g. koori court

• ongoing cultural competence training or people working and courts to ensure first nations can engage in system

issues of culturally and linguistically diverse people

limited awareness and knowledge of their rights and responsibilities

• first language not english, accessing resources difficult

• unaware of legal processes in vic legal system

• legal system is complex and difficult to navigate

• system may be quite different to those in other countries

legal system in other countries

different levels of transparency and integrity

• in some countries authorities use the courts to dispense the outcomes they want - not based on evidence

• results in mistrust in police, legal system and courts by these countries

• makes them reluctant to use our legal system even though their rights have been infringed

how to address CALD

• providing info and education in a variety of language to provide info about vic legal system and legal aid

• free interpreters

purpose of sanctions

outlined in sentencing act 1991 (vic)

punishment

deterrence

denunciation

protection

rehabilitation

sanctions

criminal penalties imposed

must be proportionate to crime committed

principle of parsimony

a sentencing judge or magistrate must not impose a sanction that is more sever than necessary to achieve the purposes of the sanction imposed

punishment

• to punish the offender when they have done something unacceptable as a consequence for their actions

• ensures penalty reflects severity of the crime

• just and fair in light of the relevant circumstances of the offending

deterrence

• law aims to discourage or deter the offender and others in society from committing similar or the same offence in the future by imposing a penalty that is sever enough that the offender and others can see the serious consequences of committing crime

types of deterrence

specific: designed to discourage the particular officer from committing further offences

general: designed to discourage others in the community from committing similar offences

denunciation

when a court imposes a sentence that is harsh enough to show its disapproval

conveys a message of public shame that the type of criminal behaviours will not be tolerated by the courts

protection

seeks to ensure the safety of society by imposing a sanction that prevents the offender from harming again

• a lack of remorse, offenders callous attitude determines if offender should be kept from society

rehabilitation

• societies interests to help the offender change their way

• provide education, training, assistance, support to offenders

• protect harm from individuals + to protect property to form law abiding citizens

fines

a monetary penalty imposed by a court as a sanction for committing the offense

• requires the offender to pay a specified amount of money to the state or court

• can be imposed for various types of offences and the amount of the fine can vary depending on the severity of the offense and the relevant laws or regulations

expressed in penalty units 1pu = $197.59

factors influencing fines include

financial circumstances of offender

any loss/damage to property as a result of offense

value of benefit received by offender from offence

any forfeiture, compensation or restitution order imposed

community correction orders

• non custodial sanction imposed by a court in criminal cases

• alternative to imprisonment allowing offenders to serve their sentence in community under certain conditions and supervision

conditions of cco’s

• core: not to reoffend

• optional:

• counselling

• treatment programs

• community service

• curfews

about cco’s

duration and conditions are determined by court based on nature of offence, the offenders circumstances and sentencing guidelines

breaching conditions can lead to additional penalties, reassessment, potential imprisonment

POJ influences by public

perception of public: justice needs to be seen to be done

media can influence public to determine whether justice was served or not

Koori Court

• established in magistrates court in 2002

• a sentencing court available to an aboriginal accused person

• aim is to provide an informal atmosphere for sentencing, and to allow representation from the aboriginal community in the sentencing process

• magistrate recieves cultural advice from elders but still remains final decision maker

• magistrate, county, children court

eligibility of koori court

• must be aboriginal

• offense must be within jurisdiction of relevant court

• must not be a sexual offense

• must have plead guilty

• accused consents to case being heard in koori

Strengths of Koori Court

Cultural Sensitivity and Inclusion

• the koori court in vic recognises and respects the unique cultural needs and experiences of indigenous Australians

• culturally appropriate setting, taking into account their background, traditions and community connections

• provides equality as it allows all to engage without disparity

Rehabilitation focused approach:

• koori court emphasizes rehabilitation rather than punitive measures

• aims to address underlying causes by providing support guidance and access to culturally relevant programs and services

• allows for access and ability to engage

Weaknesses of Koori Court

potential for stigmatization

• aims to provide a culturally sensitive approach

• some individuals may feel singled out due to indigenous background when cases are heard in specialised court

• perception may impact willingness of some indigenous individuals to participate with koori court limiting fairness

limited accessibility

• May not be easily accessible to all indigenous individuals across state particularly those in remote or rural areas

• result in unequal access to specialised services and benefits

factors considered in sentencing

sentencing act 1991 (vic):

mitigating factors

aggravating factors

guilty pleas

victim impact statements