Legal studies exam

Summary offences definition

Summary offences refer to minor offences that are heard in the Magistrates' Court

characteristics of summary offences

• No jury ever

• Only heard in the Magistrates' court, in front of a magistrate

• Can be heard even if the accused is not present

• Many summary offences are found in the Summary Offences Act 1966 (Vic)

• Charges must be laid within 12 months of the alleged offence being committed

• Examples: traffic offences, graffiti minor drug use, drink driving, minor assaults

indictable offences definition

Indictable offences refer to serious offences that are heard before a judge and jury in the County or Supreme Court

characteristics of indictable offences

• Determined at a trial (not a hearing)

• Jury of 12 when the accused pleads not guilty

• Heard in the County Court or Supreme Court.

• Cannot be heard unless the accused is present.

• Many indictable offences are found in the Crimes Act 1958 (Vic.)

• Charges can be laid at any time.

• Examples: murder, manslaughter, arson, home invasion, treason.

indictable offences heard summarily definition

A serious offence that can be heard and determined as a summary offence

Characteristics of indictable offences heard summarily

• Heard in the Magistrates; court like a summary offence would be.

• The court and accused must agree for an indictable offence to be heard summarily.

• Outlined in Schedule 2 of the Criminal Procedure Act 2009 (Vic)

• Examples: Theft or robbery under $100,000 or theft of a motor vehicle, Perjury, Carjacking

Benefits of indictable offences heard summarily

• Less delays in the Magistrates' court.

• Less expensive to have a hearing issued in the Magistrates' court.

• Penalty issued in a Magistrate is likely to be less than that of a judge in the County court.

• Magistrates' court can be less formal (may be more accessible for those without legal representation.)

The burden of proof definition

The obligation (responsibility) of a party to prove a case. In criminal cases the burden of proof lies with the prosecution

The standard of proof definition

The degree or extent to which a case must be proven in court. The standard of proof in criminal cases is beyond a reasonable doubt

Presumption of innocence definition

The right of a person accused of a crime to be presumed (deemed) not guilty unless proven otherwise.

Protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic.)

Relationship between the burden of proof and presumption of innocence

• BOF upholds POI

• responsibility of proving guilt is on the prosecution

• accused doesnt have to prove their innocence

• therefore unless the prosecution can prove guilt and overturn the POI then it will remain

relationship between the standard of proof and presumption of innocence

• SOP upholds the POI

• because the SOP is a high standard that needs to be upheld

• therefore unless this can be proven by the prosecution

• the accussed cant be found guilty as they dont have to prove their innocence

right to be tried without unreasonable delay

Every person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay.

the right to be tried without unreasonable delay - who does this apply to?

All people accused of committing a crime

the right to be tried without unreasonable delay - why do we need this right

We need this right because:

• Upholds the presumption of innocence.

• Accused is not held in custody for an unreasonable amount of waiting for their trial.

• Victims and witnesses do not have to experience unnecessary delayed trauma.

the right to be tried without unreasonable delay - where is this outlined?

Victorian Charter of Human Rights and Responsibilities sections 21 and 25

the right to be tried without unreasonable delay - when does this apply

To summary offences and indictable offences

The right to be tried without unreasonable delay relationship with POI

• Under the Charter

• people have a basic right to liberty and security,

• accused persons are presumed innocent until proven guilty.

• Thus, people should not be held for an unreasonable amount of time while they are awaiting trial.

the right to silence

A person does not have to give any information or answer any questions about a crime. No adverse inferences can be drawn from exercising this right.

the right to silence - who does this apply to

All people accused of committing a crime or being questioned about a crime.

the right to silence - why do we need this right

• To prevent the oppression of authority.

• To uphold the presumption of innocence and burden of proof.

the right to silence - where is this outlined

Protected by common law (Petty v The Queen (1991)) and statute law (Evidence Act 2000 (Vic))

the right to silence - When does this apply

• When being questioned by police (during questioning as part of the investigation of a crime)

• During the trial.

The right to silence relationship with the presumption of innocence

• RTS supports the POI by presuming an accused is not guilty

• because of this the accused doesn't have to say anything

• can exercise their RTS without any adverse inferences being drawn.

right to trial by jury

All people charged with an indictable offence have the right to have their guilt determined by a jury.

the right to a trial by jury - who does this apply too

All people accused of committing an indictable offence.

the right to a trial by jury - why do we need this right?

• To prevent the oppression of authority.

• Allows the accused to be tried by their peers.

• Allows the community to be involved in the criminal justice system.

the right to a trial by jury - where is this outlined

Commonwealth Indictable offences: Australian Constitution (s80). Victorian Indictable offences: Juries Act 2000 (Vic) and Criminal Procedure Act 2009 (Vic)

the right to a trial by jury - when does this apply

Indictable offences when the accused pleads not guilty.

the right to give evidence using alternative arrangements

Allows victims to give evidence directly, including:

• CCTV

• Screence

• Support person

• closed hearing

• no robes

• legal practitioners sitting while questioning

the right to give evidence using alternative arrangements - source

Sections of the Criminal Procedure Act (2009)

the right to give evidence using alternative arrangements - source

measures that can be put in place by a court for witnesses in certain criminal cases to give evidence in a different way.

the right to give evidence using alternative arrangements - purpose

try to reduce the trauma, distress and intimidation that a witness may feel when giving evidence.

the right to give evidence using alternative arrangements - applies

automatically to sexual offence victims and family violence victims, other victims can apply only by request

the right to give evidence using alternative arrangements - why do we need this right?

• Aims to reduce secondary trauma

• The victim may know the accused and it may impact their ability to give evidence

• Makes giving evidence more accessible for victims of these crimes.

The right to be informed about proceedings

Victims are entitled to be informed at reasonable intervals about the progress of an investigation into a criminal case (unless they do not want that information, or that information may jeopardise the investigation).

the right to be informed about proceedings- source

Source: Sections of the Victims Charter

the right to be informed about proceedings - why do we need this right?

• Aims to reduce secondary trauma

• Allows the victim to follow and attend the proceedings if they choose to

• Allows the victim to access appropriate support services if needed.

the right to be informed about proceedings - applies

To anyone who is a victim of crime

The right to be informed of the likely release date of the offender

The Victim has the right to know information such as;

• the likely release date

• when the offender is released on parole

• the length of the sentence

• if the offender dies in prison

• if the offender is transferred interstate.

the right to be informed of the likely release date of the offender - source

sections of the victims charter

the right to be informed of the likely release date of the offender - applies

Anyone who is a victim of a violent crime, where the offender is serving a term of imprisonment in Victoria, who has applied to be included on the Victims Register.

the right to be informed of the likely release date of the offender - why do we need this right

• Aims to reduce secondary trauma

• Allows the victim to be prepared for the offender's release

• Allows the victim to access appropriate support services if needed.

• Only applies when the offender is serving a sentence of imprisonment for the violent offence.

the right to be informed of the likely release date of the offender - information the victims register must give

• The release of an offender on parole.

• Any decision not to release an offender on parole.

Definition of VLA

An independent government funded agency (relies on federal and state funding) that has the role of ensuring equal access to the legal system for all Victorians.

role of VLA

to provide free legal information to the community, legal advice and legal representation for people who cannot afford to pay for legal services.

Purpose of VLA

• Ensuring equal access to the legal system for all Victorians, regardless of personal circumstances.

• Prioritise prevention and early resolution of legal problems.

• Educate Victorians on legal matters

Types of assistance at VLA (accused persons)

1. Free Legal Information
2. Legal Advice
3. Help before the court
4. Duty Lawyer
5. Grants of legal assistance

Types of assistance at VLA (victims of crime)

1. Free legal information
2. Legal advice
3. Duty lawyer
4. Grants of legal assistance

Strengths of VLA

• Free legal information available on website to everyone

• Free legal advice and assistance such as through duty lawyers and grants of legal assistance

• Some information is provided in more than 30 languages

• The accessibility of VLA's online tools is available to people who live in regional, rural and remote areas (access)

Weaknesses of VLA

• The free legal information may not be enough for certain people + isn't tailored to individual needs

• VLA's strict eligibility criteria means it is only able to provide legal advice + representation to limited people

• Duty lawyers and help before the court are limited to summary matters only

• High demand for services and assistance, could mean fewer people are eligible for legal aid

• Limited funding, VLA prioritizes strictly those who need it most

definition of CLC’s

An independent, non-profit community based organization that provides free and accessible legal services to Victorians.

Role of CLCs

To provide accused people with:

• information

• legal advice

• ongoing assistance in a case

• providing legal education to the community

• advocate for changes to the justice system in regards to unfair laws, policies or practices

Types of assistance at CLC (accused persons)

1. Basic legal information
2. Legal advice and assistance
3. Casework

Types of assistance at CLC (victims of crime)

1. Basic legal information
2. Legal advice and assistance
3. Duty lawyer
4. Casework

Strengths of CLC

• Free legal information is available over the phone and on many CLC websites

• Some legal information is provided in different languages and some CLCs offer free interpreter services

• CLCs are located all over metropolitan Melbourne, allowing access for those living in regional or rural Victoria

Weaknesses of CLC

• Insufficient funding to be able to help everyone who needs legal assistance - 'service gap'

• Many CLC's do not assist people charged with an indictable offence

• Must meet strict eligibility criteria to receive personalised advice, CLC prioritises individuals who need it most

plea negotiations - definition

refer to pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid.

purpose of plea negotiations

Secure a conviction: Ensures the outcome of the case is a guilty plea so the accused is not acquitted at trial.

Early determination of a case: Helps to achieve a prompt resolution to a criminal case to reduce delays and the cost and time of a criminal trial or hearing.

Reduce secondary trauma: Avoids the need for victims and witnesses to give evidence at a trial hearing. This saves the stress, trauma and inconvenience of a criminal trial or hearing.

Strengths of Plea Negotiations:

• Results in less cases going to court. This means the cases that do proceed to court can be heard sooner

• Victims, witnesses and their families are saved from the trauma, inconvenience and distress of a trial process.

• The prosecution can secure a conviction and avoid a trial

• Avoids the cost of a trial

Weaknesses of Plea Negotiations:

• Poor or no legal representation can mean the accused is placed at a disadvantage

• The victims and community may see a plea negotiation as the offender not being properly sanctioned for their crime or that justice has not been achieved

• Plea negotiations are made in private and do not need to be disclosed, lack of transparency

The Victorian Court Hierarchy definition

the Victorian Court Hierarchy is ranked based on the severity and complexity of the cases they can hear. Each court has its own jurisdiction to hear criminal cases.

Specialisiation:

Allows courts to develop areas of expertise and focused knowledge of the law and procedures for hearing those kinds of matters based on the cases they hear under their jurisdiction.

appeals

• refers to an application to have a higher court review a ruling (decision)

• Appeals allows parties who are not satisfied with the outcome of their case to appeal (if they have the grounds to do so) to a higher court in an attempt to have the earlier decision reviewed.

Grounds of Appeals:

• Appealing on a point of law (arguing some law has not been followed or correctly applied, e.g. allowing inadmissible evidence)

• Appealing a conviction (guilty verdict)

• Appealing because of the severity or leniency of a sanction imposed (the prosecution would appeal the leniency and the offender would appeal the severity.

strengths of court hierarchy

• Courts and all personnel (judges and jury) are independent and do not take sides, upholding impartiality

• The existence of a court hierarchy allows for appeals to be made by both parties in the same way, no party faces disparity when trying to make an appeal

• Appeals allow for individuals to have their ruling reviewed by a higher court allowing them to engage in the justice system

• Courts having specialisation and experitse in dealing with certain cases allows for timely resoloution

Weaknesses of court hierarchy

• Certain ground of appeals apply, meaning the accused and prosecution may not be able to have their decisions reviewed if they don't meet these grounds

• Unable to determine whether jury makes their decisions based on the law and facts, may have made pre-determined beliefs which hinders their ability to remain impartial

• The different courts contained in the hierarchy can be confusing for some people

• Costs of appeals - expensive to have ruling reviewed

Roles of the judge and magistrates

• act impartially

• manage the trial or hearing

• decide outcome

• oversee the outcome

• sentencing an offender

act impartially (role of the judge and magistrates)

Refers to the judge having to remain independent, neutral and unbiased throughout the proceedings. - upholds fairness

manage the trial or hearing (roles of the judge and magistrate)

Refers to the judge/ magistrate ensuring court procedures are followed by both parties and ensuring rules of procedure apply equally, can adjust these procedures if nescescary

decide outcome (roles of the judge and magistrate)

After listening to the evidence and arguments, the Magistrate must be satisfied the prosecution has proved the accused's guilt beyond a reasonable doubt

oversee the outcome (roles of the judge and magistrate)

Summarise the case for the jury at the end of the trial, give directions to the jury during the trial

sentencing an offender (roles of the judge and magistrate)

A sentence must be in accordance with the sentencing guidelines established in the Sentencing Act 1991 (Vic) and any other relevant legislation

Strengths of Judge & Magistrate:

• Don't show apprehended bias with no connection to either party

• Judges ensure rules of procedures are consistent across all trials so no disparity is formed, upholding formal equality. Judge/magistrate can adjust these procedures at their discretion if necessary so a party does not suffer disparity

• Judges can explain points of power to jury members and to the accused to improve their understanding,

weaknesses of judge and magistrate

• Judges and Magistrates can only explain the court procedures and are not allowed to assist or aid any self represented parties,

• Judges and magistrates are still human, therefore they may even form a slight personalised bias

• Judges and Magistrates rely on the the parties (prosecution and accused) to present their evidence in court, limiting judges and magistrates from engaging in the justice system

Role of the Parties:

• participating in the trial or hearing

• disclose information to accused

• make submissions about sentancing

• closing address

participating in the trial or hearing (role of the parties)

opening address:

• Prosecution:

  • must introduce and outline their case, informs the judge/magistrate about the charges

• Accused:

  • does not have to give evidence and can exercise their right to silence, informs the magistrate/jury about accused's defence

evidence and submission (role of the parties)

1. examination in chief

2. cross-examination

3. re-examination

disclose information to accused (role of the parties)

The prosecution must give the accused information about the evidence they will use, any material that may assist the accused's case and any relevant convictions of prosecution witnesses, upholds fairness

make submissions about sentencing (role of the parties)

• Only applies if the accused is found or pleads guilty

• The prosecution will inform the judge or magistrate of the relevant sentencing laws and provide aggravating factors

• The offender can present mitigating factors to the judge or magistrate

closing address (role of the parties)

Occur in all trials in the Supreme or County Court, in the Magistrates' Court only with leave (permission)

Prosecution:

• Must summarise their case against the accused to the magistrate or jury, last chance to convince the magistrate or jury that the accused is guilty beyond reasonable doubt

Accused:

• Does not have to give a closing address and can exercise the right to silence, the final opportunity to remind the jury or magistrate of any reasonable doubt

strengths of the parties

• Prosecution is required to disclose all information in relation to the accused, including any information that could assist the accused's case

• Both prosecution and accused are given the opportunity to cross-examinate the other witnesses

• Both parties are given the opportunity to participate in the trial/hearing by providing evidence and outline their arguments

weaknesses of the parties

• The accused exercising their right to silence instead of providing an opening statement or a closing address could mean that they are not providing any evidence to support their case

• The court processes and procedures can be difficult to understand by both parties if they are unable to seek legal representation,

• The complex court processes and formal terminology used in the trial/hearing could mean that the prosecution and accused are limited in their understanding

roles of the jury

• being objective

• listening to and remembering evidence

• understand directions and summing up

• deliver a verdict

being objective (role of the jury)

• Must be unbiased, objective and open minded throughout the trial.

• Must ask to be excused if there is a genuine reason why they cannot be objective

listening to and remembering evidence (roles of the jury)

• Must listen to and remember all evidence and submissions

• Must concentrate and ensure they understand the evidence presented to them during the trial and ask the judge to clarify points they do not understand

understand directions and summing up (roles of the jury)

• Must listen to the judge's directions during the trial and their summing up at the end of the trial

• Ask the judge for any explanation about legal points they don't understand

deliver a verdict (roles of the jury)

• Jurors are required to determine guilty or not guilty

• Must consider any reasonable doubts they have

Strengths of the role of Jury:

• Jurors are required to remain impartial and objective during the trial and do not form bias

• Jurors are randomly selected from the electoral role and are ensured not to know have any connection with the case, allowing for them to treat both parties the same

• The jury system allows members of the public to participate and engage in the criminal justice system,

• Asking judge for clarification on evidence and parts of the law promotes their engagement within the justice system

weaknesses of the role of the jury

• Jury trials can be complex, including directions given to the jury and the evidence given during the trial

• Jury members may have unconscious bias or prejudices to either party which could limit their ability to treat both parties the same

• Jury trials can result in further delays as rules, evidence and processes need to be followed as well as in the case of a hung jury

Legal practioners definition

Legal practitioners advocate for the party they are heard to represent.

role of legal practioners

• Use their legal expertise to support their case (prosecution or defence)

• Prepare their case for the client, including evidence and submissions

• Make objections to evidence or arguments used by the other party if they believe it is against the rules.
  
  S(kill) E(xperience) O(bjectivity)

the need for legal practioners

• Legal processes and procedures are complex, such as understanding the rules of evidence, being able to enter into plea negotiations or cross-examining witnesses.

• An accused lacks the skills, expertise and objectivity to run their own case. A legal practitioner is a trained professional in these areas and objective.

strengths of legal practitoners

• They are experts who can help the accused person navigate the criminal justice system.

• Objectivity in being able to make decisions in the criminal case e.g. whether to accept a plea negotiation

• Help avoid delays due to their expertise

Weaknesses of Legal Practitioners:

• Not all legal practitioners are equal, don't have the same level of expertise and skill

• Not everyone can afford legal representation, some people may be forced to represent themselves

• Legal representation may not assist an accused as people suffering trauma or who can't understand english may need more support

measures to address costs

• One of the key measures put in place to address the issue of costs is the provision of free legal aid through VLA and CLCs

• Due to the overuse of VLA and CLCs, a large part of the community is not eligible for VLA and thus they are stretched in their ability to offer legal aid

strengths of costs

• Through institution of VLA: provides free legal aid to those of low socioeconomic status charged with serious offences

• Through institution of VLA: Takes measures to offer duty lawyers or grants of legal assistance to disadvantaged individuals

• Judges in the Supreme and County Courts can order VLA to provide lawyers for those who cannot afford it

weaknesses of costs

• Lack of affordable legal representation or cannot afford legal representation or don't qualify for VLA grants are placed at disadvantage

• Unbalanced legal representation can lead to unfair outcomes

• VLA's limited funding may mean some individuals miss out on receiving legal advice and assistance

• Inability to afford the costs of an appeal

Effects/Problems of delays

1. The accused, victims and witnesses can experience significant stress waiting for a case to be finalised.

2. If the accused is held in remand, the consequences of delays are significant, can affect employment, wellbeing and relationships

3. Could infringe the accused's right to be tried without unreasonable delay.

4. Long delays can impact the ability of witnesses to give accurate evidence

5. The accused may not be able to financially or emotionally defend themselves over a long period of time.

strengths of time

• Courts being able to specialize in different areas of law e.g Magistrates with summary offences ensure a quick resolution for individuals

• Judge-alone trials are often quicker as they reduce the delays associated with a jury

• Plea negotiations ensure a resolution in a timely matter as the accused can enter into a plea

• legal practioners and their experise can help avoid delays ensuring a case is dealt with in a timely manner