Legal Studies (3.1)

Summary Offences

Minor offences

• eg. drink driving, minor assault, disorderly conduct

Heard in the Magistrate’s Court

• A Magistrate will determine the verdict and sentence in a hearing

• Prosecuted by the Victorian Police

Contained in the Summary Offences Act 1966 (Vic)

Indictable Offences

Serious crimes

• eg. murder, rape

Heard in the County Court or Supreme Court Trial Division

• A Jury of 12 will determine the verdict during a trial, and the Judge will decide the sentence

Contained in the Crimes Act Act 1958 (Vic)

Committal Proceedings

The pre-trial hearings and processes held in the Magistrates’ Court for indictable offences

• A Magistrate will determine if there is evidence of sufficient weight to support a conviction at trial for the offence charged

• The accused will be discharged if the Court is presented with insufficient evidence

Indictable Offences Heard and Determined Summarily

Serious indictable offences that are treated as summary offences if the Court and accused agree

• The Magistrates’ Court can only impose a maximum sentence of 2 years (for a single offence) and 5 years (for multiple offences)

• This process is quicker and cheaper for an accused

Contained within Schedule 2 of the Criminal Procedures Act 2009 (Vic)

Burden of Proof

The obligation of a party to prove the facts of the case, residing with the party who initiates the case; the Prosecution

• The burden of proof can be reversed:

  • when the defence of mental impairment is raised

  • according to section 5 of the Drugs, Poisoned and and Controlled Substances Act 1981 (Vic)

Standard of Proof

The strength of evidence required to prove a case, that is, the extent to which a party must prove the facts of the case; ‘beyond reasonable doubt’

• For the defence of mental impairment, the standard of proof is on the ‘balance of probabilities‘

Presumption of Innocence

The right of an accused person to be considered not guilty unless proven otherwise

Upheld by the:

• Burden of Proof

  • The accused does not have to establish their innocence, rather the Prosecution must prove their guilt

• Standard of Proof

• Right to Silence

• Right to Appeal

Contained in the Charter of Human Rights and Responsibilities 2006 (Vic)

Rights of an Accused

• Right to be Tried without Unreasonable Delay

• Right to Silence

• Right to Trial by Jury

Right to Trial Without Unreasonable Delay

An accused’s charges should be heard in a timely manner

• An accused child must me brought to court as ‘quickly as possible‘

• Summary offences must be brought to court within 12 months, as dictated by the Criminal Procedures Act 2009 (Vic)

Delays should only occur if they are reasonable

• eg. gathering evidence, preparing for trial, questioning witnesses

• Delays will vary according to the complexity of the case and legal issues involved

This right applies to all accused people, ‘without discrimination, that is, regardless of their prior convictions or personal characteristics

• Includes summary and indictable offences

Contained in section 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

Gray v DPP [2008]

Right to Silence

An accused has the right to refuse to answer any questions, and is not obligated, nor can they be forced to provide information or evidence in a criminal investigation or a trial

• Applies to all accused people, for summary and indictable offences

• If police believe a person has committed a crime, is about to or can aid their investigation, they are required to provide their name and address

No adverse inferences can be drawn by a Jury or Judge regarding guilty is an accused exercise this right, or is selectively silent

Contained in section 89 of the Evidence Act 2008 (Vic)

Right to Trial by Jury

An accused is entitled to be tried by their peers, so the outcome reflects community values, as the verdict is determined by the Jury

• This right does not extend to summary offences

Contained in the Juries Act 2000 (Vic) for state indictable offences, and section 80 of the Australian Constitution for Commonwealth indictable offences

Rights of Victims

• Right to Give Evidence Using Alternative Arrangements

• Right to be Informed about Proceedings

• Right to be Informed about the Likely Release Date of the Offender

Right to Give Evidence Using Alternative Arrangements

Victims/witnesses providing information in charges relating to a sexual offence, family violence, obscene, indecent or threatening language/behaviour in public are entitled to alternative arrangements to give evidence at any stage of a criminal proceeding

• eg. Providing evidence with a closed circuit television, using screens during questioning to remove the accused from the direct line of vision, allowing a support person, only permitting certain people in court, requiring legal practitioners to remain seated during cross-examinations and not wear formal robes

Alternative arrangements seeks to reduce the trauma, distress and intimidation that a witness may feel when giving evidence

• Prevents the risk of secondary trauma

Contained in the Criminal Procedures Act 2009 (Vic)

Right to be Informed about Proceedings

Investigatory agencies, prosecuting agencies and victims services agencies (eg. police, DPP, Victims of Crime Commissioner) are required to provide clear, timely and consistent information about support services (eg. counselling), possible compensation entitlements and legal assistance available

An investigatory agency is required to inform a victim, at reasonable intervals about the progress of an investigation

• eg. details of offence charged against the person, date, time and location of the heating, outcome of the case and if an appeal has been lodged

The victim can therefore see ‘justice done‘

Applies to all victims, regardless of whether it was a summary or indictable offence

Contained in the Victims Charter Act 2006 (Vic)

Right to be Informed about Likely Release Date of Offender

Victims register on the Victims Charter who have been subject to a violent crime (eg. rape, aggravated burglary, dangerous driving causing death) are entitled to be notified of the release date of a prisoner a parole at least 14 days prior to the release of the prisoner

• They can make a submission to the Parole Board regarding the offender’s release, providing the victim with a voice

Contained in the Victims Charter Act 2006 (Vic) and Corrections Act 1986 (Vic)

Principles of Justice

• Fairness

• Equality

• Access

Fairness

“All people can participate in the justice system, and its processes should be impartial and open“

Participation

• Relates primarily to the ability of the accused and victims to use the legal system

• eg. Opportunity to know case put against them, opportunity to prepare a defence and examine witnesses, use a lawyer, interpreter, trial without unreasonable delay, victim impact statements, right to give evidence using alternative arrangements providing victims and opportunity to present their views

Impartial Processes

• All court personnel and independent and impartial

• Cases are decided on the facts and law, not prejudice or bias

• There is no apprehended bias

• eg. Independent Judge and Jury

Open Processes

• Requires transparency and accountability, so the courts can be scrutinised for their actions, decisions and practises

• The public can therefore see justice done

• eg. Public court hearings which can be attended by the community, media and victims, published court judgements

Equality

“All people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage”

Formal Equality

• All people are treated the same way, regardless of their personal differences or characteristics

• eg. All accused people have the right to silence

Substantive Equality

• The implementation of measures to overcome disparity of disadvantage

• eg. Interpreters, Koori Court, alternative arrangements to give evidence, breaks and adjournments, changes to court processes, providing information in a different way, different form of oath/affirmations

Access

“All people should be able to engage with the justice system and its processes on an informed basis”

Engagement

• People have the means and ability to use the legal system

• This should not be limited by location, disability or socio-economic background

• eg. Physical, technological and financial access, no delays

Informed Basis

• People understand their rights and legal processes, and can make reasonable and sensible decisions

• eg. Education, information, legal and support services, VLA, CLCs, right to be informed about proceedings

Plea Negotiations

Occur between the Prosecution and accused, where the Prosecution will seek to resolve the case by offering the accused fewer, or lesser charges in exchange for a guilty plea

• Relates to charges, not sentence

Conducted on a ‘without prejudice’ basis

• Any offers made by either party cannot be used against them if they negotiations are unsuccessful, ensuring the accused can proceed without fear

Purposes of Plea Negotiations

Ensures certainty of the outcome

• It eliminates the chance of an acquittal, so the accused is found guilty and sentenced accordingly

Saves on costs, time and resources

• As the Court has to hear less cases, its backlog decreases, promoting efficiency in the legal system

Achieves a prompt resolution without the stress, trauma, cost and inconvenience of a trial

• In 2021/22, 77.6% of prosecutions were finalised as a guilty plea

Appropriateness of Plea Negotiations

Must always be in the public’s interest

• Ensures that the public’s confidence in the legal system is not undermined

Whether accused is willing to cooperate

• Plea negotiations are dependant on accused’s willingness to negotiate, they cannot be forced to plead guilty

Strength of evidence and likelihood of conviction

• Can the Prosecution prove the case beyond reasonable doubt if it goes to trial?

Whether accused is represented

• The accused cannot participate or engage without legal representation, so the Prosecution will be unwilling

If witnesses are reluctant

• Can jeopardise the Prosecution’s case

Possible adverse consequence of a trial

• Will is further traumatise victims?

View of Victim

Likelihood of a Long Trial

Victorian Court Hierarchy

…

Original Jurisdiction

…

Appellate Jurisdiction

…

Appeals

…

Specialisation

…

Judge and Magistrate

Oversee the case as an ‘umpire‘ or ‘referee‘

Role:

• Act impartially

• Manage the Trial or Hearing

• Decide or Oversee Outcome

• Sentence an Offender (Post Trial)

Act Impartially

• Judges and Magistrates are appointed, not elected

  • Fairness → Impartiality

  • Cases are independent from political influence, so cases are determined on the basis of facts, rather than bias

  • However, Judges are human, and can be subject to fatigue which may adversely affect their decisions

  • Yet as Judges are highly qualified individuals, this is mitigated

• They are required to act impartially, conducting all court procedures without bias or apprehended bias to ensure a just outcome

  • Fairness → Impartiality

  • This bolsters public confidence in the justice system

  • Yet limited diversity among Judges and Magistrates can negate this, as it presents the views on only a certain demographic

Manage Trial or Hearing

• Control and supervise the case

• Ensure that court procedures are adhered to so both parties have an equal opportunity to present their case

  • Equality → Formal

  • Both parties are held to the same legal principles and court procedures

  • Fairness → Participation

  • This ensures that both parties can fully participate in the trial/hearing to present their case optimally

  • Yet parties may not be able to equally participate due to discrepancies in the quality of their legal representation

  • eg. Control witnesses, working with legal practitioners to conduct the trial, ask clarifying questions of a witness, determine whether evidence in admissible

• Adjust trial processes

  • Equality → Substantive

  • Reduces disparity for vulnerable groups and individuals

  • eg. Allowing breaks, requiring lawyers to remain seated, explaining the law to a self represented accused

  • However, Judges are not active participants in a trial, and the have to remain impartial, so they are not a viable substitute for an incompetent barrister

Decide or Oversee Outcome of Case

• A Magistrate will determine the verdict in the Magistrates’ Court as there is no Jury is summary offences

• A Judge is the ‘Decider of the Law‘

• They have to ensure the Jury understands their role, explaining the law to the Jury and providing directions to them (eg. right to silence) before summarising the case to them

  • Access → Informed Basis

  • Ensures that the Jury can access the legal system with the appropriate knowledge

• Determine if a majority verdict is acceptable (11/12 Jurors)

Sentence an Offender (Post Trial)

• At a plea hearing, parties will make submissions about sentencing

• The Judge or Magistrate must comply with the sentencing guidelines in the Sentencing Act 1991 (Vic)

• They will hear from both parties, and can hear from the victim with victim impact statements

  • Equality → Formal

  • Ensures procedural fairness

Jury

12 ordinary citizens who represent the community and reflect its views so the accused is subject to a ‘trial by peers‘

Role:

• Be Objective

• Hear and Interpret Evidence

• Deliver a Verdict

Be Objective

• The Jury is required to be unbiased, without prejudice or preconceived notions

  • Fairness → Impartiality

  • The Jury is randomly selected and has no affiliation to the case or parties

  • Subconscious bias can however affect decisions, and as deliberation occur behind closed doors it cannot be ascertained whether the Jury understood the facts of the case and law

• Verdict is determined on the basis of facts presented in Court

  • Access → Engagement

  • Allows ordinary people to participate in the legal system, ensuring direct access and transparency between the Courts and community

  • Certain groups are underrepresented in Juries (eg. First Nations), which are supposed to represent a cross-section of society

  • Fairness → Open Processes

  • Bolsters confidence in the legal system

• The Courts Legislation Amendment Act 2008 (Vic) makes it an offence for Jurors to do any of their own research/investigation or make any enquiries about the case or parties, if any Jurors breach this a mistrial will be declared

  • Access → Engagement

  • Trials are lengthy and time consuming as Jurors have no legal training and the Judge is required to explain the law to them, which can cause delays and hinder access

  • This can also create a financial burden on the accused, especially when a mistrial or hung jury is declared, which can cause further trauma for victims

  • Juries are expensive for the legal system

Hear and Interpret Evidence

• Listen attentively and apply the law as it explained by the Judge (which can be complex), asking questions when they do not understand the case or relevant law

• Must follow all Jury directions

Deliver a Verdict

• Determine whether they accused is guilty beyond reasonable doubt

• Jury deliberations occur in private and are confidential

  • Fairness → Open Processes

  • Reasoning for a Jury’s outcome is not provided to the public, which can undermine public confidence and create confusion regarding the outcome

  • However, as decisions are confidential, they are undertaken freely and without pressure

• Seek to reach a unanimous verdict, but a majority verdict may be accepted (if neither are reached, a hung jury is declared and the case is retried)

  • Equality → Formal

  • Are there are 12 Jurors, one person does not have excessive power or responsibility, and thus they cannot dominate the case

Parties

Prosecution v Accused

In the adversary system, the accused and prosecution have ‘party control‘, due to which they have control of their own cases, and are required to comply with the court’s rules, directions and orders when presenting their case

Prosecution’s Role:

• Disclose Information to the Accused

• Participate in Trial or Hearing

• Submissions about Sentencing

Accused’s Role

• Participate in Trial or Hearing

• Submissions about Sentencing

Party Control

….

Disclose Information to the Accused (Prosecution)

Prosecutors are not supposed to ‘win at all costs‘, rather they have the responsibility to present the entire case to the Jury (or Magistrate) so they can determine guilt

• Must disclose all relevant information to the accused, regardless of whether that information is incriminating or exonerating

  • Fairness → Participation

  • The Accused is not subject to trial ‘by ambush‘, as they are made aware of all information against them (including the names and statements of witnesses)

  • However, consideration has been given to strengthening these disclosure obligations, suggesting their effectiveness is currently limited as the Victorian Law Reform Commission has recommended that legislation by amended to establish that the DPP has an ongoing disclosure obligation, even after the case is concluded, regardless of the verdict. Early and adequate disclosure is thus an issue in Victoria (eg. Police waiting for the defence’s request rather than providing an upfront disclosure )

  • The entire case is thus presented to the Court, and a just outcome is reached

Participate in Trial or Hearing (Prosecution)

The burden of proof resides with the Prosecution, who have the responsibility to present evidence on behalf of the state to prove the facts of the case beyond reasonable doubt

• The Prosecution must thus fully participate during the hearing/trial

  • Access → Engagement

  • As the Prosecution presents evidence on behalf of the state the victim is not required to pay, so financial barriers do not obstruct their access to justice, and the cases of all victims are heard

  • Equality → Formal

  • Parties have an equal opportunity to present their case

  • Legal processes are difficult to understand, and a lack of legal representation, or disparities in the quality of legal representation can mean that the Prosecution engages more effectively with the legal system than another, creating disparities and disadvantages

  • However, VLA and CLCs seek to overcome this by providing ongoing legal representation

• This includes:

  • Opening Address

  • Presenting Evidence

  • Examination in Chief

  • Cross Examination

  • Closing Address

Examination in Chief

The questioning of one’s own witness in court in order to prove one’s own case and disprove the opponent’s case

Cross Examination

The questioning of a witness called by the other side in a legal case

Opening Address

Outlines the prosecution’s case to the jury members (or the Magistrate) understand the issues and what the evidence will be

Closing Address

The Prosecutor will summarise the case, limiting themselves to the evidence raised in the case

• The cannot employ comments that will evoke emotions and cannot convey any personal opinions

Submissions about Sentencing (Prosecution)

• The Prosecution will inform the court about the laws that apply and anything about the offence or the offender that is relevant to sentencing

• They thus assist the court in determining the sentence

Participate in Trial or Hearing (Accused)

As the burden of proof does not reside with the accused they can determine the extent to which they participate, either presenting a defence or evoking their right to silence

• Determines whether to plead guilty or not guilty

  • Fairness

  • The right to silence upholds the Presumption of Innocence, and the accused has no obligation to present evidence

  • ‘Party control‘ and the right to silence can mean that they truth does not come out, which is particularly unjust for victims and can undermine their confidence in the legal system

• The accused can prepare a defence by:

  • Opening Address

  • Examination in Chief

  • Cross Examination

  • Closing Address

  • Access → Engagement

  • Financial barriers can obstruct the ability of an accused to engage with the legal system, as legal processes are complex and the accused requires a lawyer to navigate them

  • Unrepresented parties can delay court processes, creating further delays in the legal system and hindering access

  • However, the accused must be informed of all charges against them and tried without unreasonable delay, which bolsters their ability to engage with the legal system

  • Equality → Formal

  • Parties have an equal opportunity to present their case

Submissions about Sentencing (Accused)

• The accused will seek to obtain the least possible sentence possible by providing mitigating factors

• They cannot however mislead the court

Need for Legal Practitioners

It is broadly accepted that a person charged with a criminal offence requires legal practitioners to represent them, to ensure that they have an adequate opportunity to put forth their case

Lawyers are required as they possess:

• Legal expertise and knowledge

• Legal Skills

• Objectivity

Legal Expertise and Knowledge

• Lawyers possess the knowledge that enables them to navigate the criminal justice system and test the evidence

• Due to this they can successfully navigate procedures such as plea negotiations, trial processes, rules and evidence and examination of witnesses

  • Access → Engagement

  • Lawyers prevent further delays in the criminal justice system, as unrepresented parties can slow down court processes and cause delays both in the resolution of the case and access to the courts for other cases

Legal Skills

• Lawyers can advocate on behalf of an accused

• They have the skills and have the skills to question witnesses, preparing and presenting their client’s case optimally.

  • Fairness → Participation

  • An accused can thus fully participate within the justice system with a lawyer, delivering opening and closing addresses while effectively questioning witnesses

  • Financial barriers can prevent the accused from accessing legal representation, due to which the Prosecution can participate more effectively in the case than the accused

  • Consequently, the Criminal Procedures Act 2009 (Vic) gives courts the power to adjourn a trial for serious offences until the VLA provides a grant for ongoing legal representation

  • Demonstrated in R v Dietrich [1992], as a court can stay a criminal case so an accused charged with an indictable offence can receive legal representation

  • Equality → Formal

  • Court rules ensure that lawyers can participate equally

  • However, the Prosecution will always be legally trained, as the state employs police and lawyers to prosecute criminal offences, while the accused may be forced to represent themselves, or have a lawyer that is incompetent, as not all lawyers are equally capable or experienced

  • Legal representation cannot overcome all barriers, especially when language and cultural barriers exist, as they can hinder communication between a client and their lawyer R v Kina [1993]

Objectivity

• A self represented accused lacks the objectivity to make the right decisions as they can be overly invested or emotional about the outcome, unable to objectively assess the risks and the facts of the case

• Lawyers can think rationally

• Eg. advising an accused to enter plea negotiations, as that is the most rational option

  • Fairness → Impartiality

  • Lawyers can be objective, unlike a self represented accused

  • Access → Informed Basis

  • An accused knows their rights and can thus make sensible devisions

Impact of Costs on Achieving the Principles of Justice

• The primary cost for an accused (and victim) is that of engaging a lawyer, and while everyone has the right to legal representation not everyone can afford it

Issues of Concern:

• Fairness → Participation & Access → Engagement

• People with limited financial means may not be able to afford legal representation and will have to therefore self represent, lacking the knowledge and objectivity to present their case effectively

• The Chief Magistrate of Melbourne has reported that 50% of people now self represent in criminal cases

• Self represented accused cause delays in the legal justice system, as it places even more pressure on the Courts as the Judge is required to explain the law to them, which creates further delays and backlogs, hindering fairness and access

• Solicitor fees for a five day trial in the County Court are $11,290

• A bail application is $2821

• This is especially detrimental in the adversarial system which requires parties to present their cases before the decider of the facts

• If an accused acquires a lawyer, they can present their case case optimally as they possess the legal knowledge and understand how the law applies to the case, have the required skills (eg. examination in chief) and can think objectively, on a rational basis

• Equality → Formal

• The Prosecution will always be legally trained professionals (unlike the accused)

• Additionally, not all lawyers are equally experienced or skilled, and competency issues can adversely affect legal outcomes

The criminal justice system has however sought to overcome these issues:

• Provision of Information

  • Access → Informed Basis

    • Courts are Judges have adapted to the rise of self represented individuals by adapting their processes and changing the information they provide

  • Eg. the County Court has a dedicated page for self represented accused

• The VLA and CLCs

• Equality → Substantive

  • The criminal justice system has sought to overcome cost issues through the VLA and CLCs, which provide free information, advice, duty lawyers and ongoing legal representation to the most marginalised members of society so that they are not adversely affected by high costs

  • Some private lawyers also do pro-bono work to assist those who cannot afford a lawyer

  • These services are however limited to those who satisfy certain income, means and merits tests as well as satisfy eligibility requirements, due to which a large part of the community is not eligible for legal aid

• Using committal proceedings to filter out weaker cases

  • Fairness → Participation & Access → Engagement

  • This prevents unnecessary cases, reducing the court’s backlog and delays

  • Critics argue that committal proceedings are an ‘ineffective‘ filtering system

• Using plea negotiations to resolve criminal cases

  • Fairness → Participation & Access → Engagement

  • This prevents the costs associated with a trial or hearing

Impact of Time on Achieving the Principles of Justice

• “Justice delayed is justice denied“, the criminal justice system has a responsibility to hear cases in a timely and efficient manner

Issues of Concern:

• Fairness → Participation & Access → Engagement

• The court system is overburdened, creating a backlog of cases, which increases the stress and costs associated with a case for victims and accused people

• Fairness

• An accused may be held in remand for an extended period of times, even though they are presumed innocent

• Evidence can be lost or become unreliable (eg. erosion of witness memory)

The criminal justice system has however sought to overcome these issues:

• Right to Trial without Unreasonable Delay

  • Fairness → Participation

  • The Right to Trial Without Unreasonable delay establishes that some delays are reasonable, as more complex cases require more time to investigate and prepare to ensure that the trial itself is timely

  • Summary offences must be brought to court within 12 months

• Using plea negotiations to resolve criminal cases

  • Fairness → Participation & Access → Engagement

  • Ensure that the case is determined quickly, as it avoids the needs for a trial, saving times as the early resolution of cases frees the courts to hear other cases, preventing delays

• Court Hierarchy; Specialisation

  • Fairness → Participation & Access → Engagement

  • Ensures that the Judges or Magistrates who hear cases are experts, and matters are therefore resolved efficiently and in a timely manner

• Technology

  • Access → Engagement

  • Courts employ technology to reduce delays and save time

  • eg. online Magistrates’ Court

  • This overcomes physical barriers, as cases can be determined online and parties can appear from remote locations

Impact of Cultural Differences on Achieving the Principles of Justice

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