Studied by 11 peopleWhat are the principles of justice?
fairness, access and equality
Define the legal principle of fairness
Fairness as a legal principle is about equal footing, ensuring all parties are given an opportunity to present their case in an impartial setting and by an unbiased judge.
Define the legal principle of access.
Access as a legal principle involves individuals being aware of their rights, having opportunity to defend or initiate any legal action without hinderance from funds, language barriers or delays. This includes the opportunity to have legal information, support services and assistance.
Define the legal principle of equality.
Equality as a principle of justice includes all individuals being treated the same depending upon their circumstances. All parties within the case should have their case heard before an impartial judge.
Define Summary Offences
Summary offences are minor criminal cases heard in the magistrates' court, these are contained in the Summary Offences Act 1996 (VIC). Some examples of these crimes include disorderly conduct and minor traffic offences.
Define Indictable Offences
Indictable offences are more serious cases reserved for the County and Supreme courts and are found in the Crimes Act 1958 (VIC). A few examples of these include murder and drug trafficking.
Indictable offences heard summarily
Indictable offences heard summarily are cases which are in nature indictable, however with the consent of the accused, can be heard as a minor offence. These are outlined in the Criminal Procedure Act and are limited to offences punishable by 10 years or less. Examples of these include recklessly causing serious injury.
What is the burden of proof?
the burden of proof refers to the party who carries the responsibility of proving the other as guilty or liable. The burden of proof is borne by the party which brings the case forward, in a criminal case this would be the prosecution.
What is the standard of proof?
the standard of proof describes the degree of evidence required to establish a party as liable or guilty. In a criminal case, the standard of proof would be 'beyond reasonable doubt'.
What is the presumption of innocence?
the presumption of innocence is the right of an accused to be presumed innocent until proven beyond reasonable doubt to be guilty. This is upheld through the standard of proof as well the burden of proof.
How is the presumption of innocence upheld
Through the burden of proof being borne by the prosecution, as well as the standard of proof being 'beyond reasonable doubt'. Additionally, bail also upholds the presumption of innocence.
What are rights of an accused?
right to be tried without unreasonable delay
right to a fair hearing
right to trial by jury
Explain the right to be tried without unreasonable delay
The right to be tried without unreasonable delay is a fundamental right that ensures that an accused person is brought to trial within a reasonable time after being charged with a criminal offence.
This is upheld through the Charter of Human Rights and Responsibilities
Explain the right to a fair hearing.
The right to a fair hearing is the entitlement to have their case heard in an impartial and transparent setting and before an unbiased judge.
This right is upheld by the charter of human rights and responsibilities.
Explain the right to a trial by jury
The right to a trial by jury describes the entitlement of an accused to have their guilt determined through a jury.
This right is upheld through several Commonwealth and State legislations for all indictable offences, with the most well-known ones being section 80 of the constitution and the criminal procedure act.
This is a limited right, as most crimes fall under the jurisdiction of the state, however it still applies to Commonwealth Indictable Offences, which include treason, terrorism and fraud.
What are the rights of a victim?
right to give evidence as a vulnerable witness
right to be informed about proceedings
right to be informed of likely release date of the accused
Explain the right to give evidence as a vulnerable witness.
The right to give evidence as a vulnerable witness is a legal provision that allows individuals who are considered vulnerable or at risk to testify in court in a way that protects their rights and well-being. Vulnerable witnesses include children, victims of sexual offenses or family violence, and individuals with cognitive or physical disabilities.
This right is upheld through the Criminal Procedure Act
What are some of the ways that the right to give evidence as a vulnerable witness are protected?
-Giving evidence from another location, via CCTV or other methods.
-Installing a protective screen to shield the witness from public attention or having to look at the accused.
-Having another individual as emotion support.
This right is enforced through the Criminal Procedure Act.
Explain the right to be informed about the proceedings.
The right of a victim to be informed of the legal proceedings involves being entitled to know of progress in an investigation into a criminal matter, unless the victim does not want to receive information of the investigation or if the information may jeopardise the case.
Describe what details of the proceeding the victim is entitled to know.
-Details of the charges against the accused person
-The time, date and location of the hearing if they want to be present.
-The outcome of the criminal proceeding including the sentence given.
-Details of any appeal.
These rights are preserved through the Victims Charter.
Describe the right to be informed of the likely release of an accused.
If a victim of a criminal offence is on the Victims Register, they may receive information on the likely release of an accused or any parole releases. The victims are entitled to know at least a fortnight prior to the release.
What is Victorian Legal Aid?
a government agency that provides free legal advice to the community and low-cost or no-cost legal representation to people who can't afford a lawyer.
What are some of the services VLA offers?
-Free information via hotline or website as well as their public law library
-Free legal advice, via phone, video conference or in person.
-A duty lawyer to help with paperwork and give advice.
-Interpreters to aid individuals with language barriers
-A duty lawyer to represent an individual for more serious cases or for those that have a mental health issue
-A grant to find a lawyer for those who are eligible.
How does VLA determine eligibility?
VLA is means and income tested meaning the limited funds they have are given to the people who need them most. A means test is based upon an individual's income, assets and weekly living expenses.
A lifestyle test may also be conducted to even any discrepancies in a person's lifestyle, for example if a person claims to have no assets but own a pricey car.
What are Community Legal Centres (CLC)?
Community Legal Centres are non-profit organisations who provide free legal advice and little or no cost representation for people who cannot afford a lawyer. CLC's, like VLA, are means and income tested.
VLA often refers more minor cases to CLC's.
What are the two types of CLC's?
-Generalist CLCs
-Specialist CLCs
What are generalist CLC's?
They provide broad legal services to people in particular areas, for example, Wyndham.
What are specialist CLC's?
They are CLC's that focus on a particular area of law, for example, 'Youth Law' or Asylum Seeker Specialist CLC.
What services do CLC's provide?
-CLC's provide basic day to day legal advice, there is a lot of online resources and information as well.
-CLC's offer free legal advice without an appointment so anyone can walk in and get assistance.
-CLC's occasionally provide duty lawyers to aid with urgent matters which can be completed in a days' time.
-Very rarely do CLC's take on criminal matters with legal representation, most CLC's don't offer assistance for indictable offences.
What are Committal Proceedings?
Committal proceedings are pretrial hearings that take place in the Magistrates Court, they determine whether or not prima facie exists in the case and if it is strong enough to proceed to trial, that is if the accused pleads not guilty.
Committal Proceedings are highlighted in the Committal Proceedings Act.
What are the processes of Committal Proceedings?
-The witness evidence in the proceeding is presented through the hand up brief method, where evidence is written into documents and then presented to the Magistrate in the proceeding. These conserve time as well as reduce the re-victimisation of the witnesses and the victims, but not having them face the accused continuously.
-In contrast, a direct indictment can also take place, it happens when a case proceeds directly to trial without a committal proceeding, however, the accused must agree.
What are the purposes of Committal Proceedings?
-To decide whether or not prima facie exists in the case, meaning if there is sufficient evidence in the case for it to proceed to trial.
-To determine how the accused wishes to plead
-To provide a fair hearing by disclosing all evidence accumulated by the prosecution to the accused and the defence to ensure they make an informed decision.
-To see if the charge, if indictable in nature, can be heard summarily.
What are the strengths of CLC's?
They save time by filtering out weak cases with insufficient evidence, reducing backlog and creating space for other cases, in turn upholding fairness by reducing delays.
It allows the defence and the accused to be informed of what charges they are facing, which provides transparency and thus a fair trial, upholding fairness.
Upholds the presumption of innocence as the prosecution has to prove the case of being strong enough to proceed to trial, additionally proving fairness.
What are the weaknesses of CLC's?
Committal Proceedings are very complex processes involving cross examination and evidence, this inflates the cost of legal representation, which in turn reduce access.
Committal Proceedings can add delays to a trial which undermine the principle of fairness by adding further delay to an already lengthy process.
Committal proceedings can add stress and trauma to the victims by reliving their experiences. Hand up briefs have somewhat reduced this.
What are plea negotiations?
discussions between the prosecution and an accused person, in which the accused may agree to plead guilty to a charge in exchange for the withdrawal of some charges or a reduction in the severity of the charge.
What are the purposes of plea negotiations?
to resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed
to achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial (or hearing)
What are the factors taken into account in plea negotiations?
whether the accused is willing to plead guilty
whether the accused is cooperative in the investigation and is willing to provide exclusive information, for example, the whereabouts of the co-accused.
the time and expenses required for a trial.
whether the witnesses are unwilling or reluctant to give evidence, which undermines the prosecution's case, resulting in an increased interest in a plea negotiation.
When is a plea negotiation appropriate
It is appropriate when an accused is willing to assist police in their investigation as well as provide exclusive information on the case, for example, the whereabouts of the co-accused.
It is appropriate if the case against the accused is not a particularly strong one, the prosecution may feel more inclined to a plea bargain and secure the conviction.
It is appropriate when the witnesses in the trial are reluctant to give evidence, thereby undermining the prosecution's case which would lead them to be more open to a plea deal. This would also save the victims and the witnesses the stress and additional trauma involved of a trial.
It is appropriate if the accused has legal representation, this prevents them from agreeing to a deal against their best interests.
When is a plea negotiation inappropriate?
It is not appropriate if the accused is not willing to plead guilty and not cooperative with the police in their investigation.
It is not appropriate as these proceedings are not transparent meaning the victims and their families have no idea they are taking place, this can be seen as a hinderance to a fair solution.
It is not appropriate as the victims could feel that they were not able to give their evidence and have their 'day in court', these proceedings could act as an obstacle to the victim telling their side of the story.
It is inappropriate if the accused does not have legal representation as this may result in a deal with them not being fully aware of its terms.
What are sentence indications?
a statement made by a judge to an accused about the likely discount to a sentence they would receive if they plead guilty to an offence.
What are the purposes of sentence indications?
to provide the accused with some clarity about the likely sentence that will be imposed and to put them in a better position to make an informed decision about their plea.
to hopefully reduce the sentence in order to secure a conviction with an early guilty plea.
to save time, costs and stress of a full trial by accused pleading guilty.
When are sentence indications appropriate?
They are appropriate if the accused is willing to plead guilty in exchange for a sentence reduction.
If the case is not sexual in nature and is in the magistrate's court, it is more appropriate to give a sentence indication. However, cases in the county or supreme court are inappropriate for a sentence indication as they are more severe and likely to receive a custodial sentence.
it is appropriate if the accused has legal representation in order to help them understand the terms of the indication and not agree to a deal they don't want to.
it is appropriate if there is not a particularly strong case against the accused, if the prosecution doesn't have a confident case the appropriateness and chances of an indication are greater. It would also save time, money, resources and excessive stress for the victims.
When are sentence indications not appropriate?
it is not appropriate if the charge is sexual related, violent in nature or heard in the supreme court, as the sentencing advisory council has deemed them to be deserving of a custodial sentence.
If the accused is charged with an indictable offence, if they already have requested a sentence indication, it may be inappropriate for them to receive another, the prosecution must also consent to a second sentence indication.
If the accused does not have legal representation, pleading guilty in exchange for a sentence indication may be seen as unfair as they might not fully know the terms of the indication.
These procedures are not transparent which may result in the victims feeling like they were not provided access to a fair resolution due to the reduction in severity of the charges.
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