VCE Legal Studies 2026 Unit 3 AOS 1: 'Rights and Justice'

What is the main role of parliament in the justice system?

To make and administer Statute Law or Acts of Parliament.

What is the role of courts in the justice system?

To establish Common Law and Statutory Interpretations.

What is Statute Law?

Law created by the parliaments that is binding to the whole community. It is made ‘in futuro’, meaning that it is made considering prospective future situations.

What is Common Law?

Laws created through the rulings of judges in court cases. They are binding only on the parties to the dispute, and are subordinate to the decisions of parliament (except in High Court constitutional judgements. They are made ‘ex post facto’ (retrospectively).

What is Criminal Law?

An area or body of law that protects the community by establishing and defining crimes and their sanctions. It includes crimes against the person, property, the state, and the legal system.

What is a crime?

A crime is an action or omission that breaks an existing law, is harmful to an individual or society, and is punishable by law.

What is Civil Law?

A body of law that regulates the conduct between parties to a dispute and seeks a remedy for wrongs. It includes Tort, Contract, Family and Consumer Law.

What are the differences between civil and criminal law?

The aim of the law, the consequences, the party with the Burden of Proof, the roles of the defending party and the party bringing the actions under law, whether or not the victim is a party to the case and the presence of police involvement and the possible consequences.

What is the difference between Statute Law and Common Law?

Statue law is created through parliamentary legislation, whereas common law is made by judge decisions in court cases.

What are the 3 main stages of a criminal case?

The Investigation Stage (Investigation and Charging), the Determination State (The case and sanction are decided), and the Corrections Stage (overseeing any sanctions).

What are some examples of Commonwealth Offences?

Commonwealth Offences are set out in the Commonwealth Criminal Code, and include terrorism, people smuggling and espionage crimes.

What are the 4 types of courts in Victoria?

The Magistrates’ Court, the County Court, Supreme Court, and Specialist Court such as the Children’s Court.

What is the prosecution in a criminal case?

The party that presents the evidence in court on behalf of the state or Commonwealth.

Who is the prosecution in a criminal case?

In Victoria, the Office of Public Prosecutions works with the Director of Public Prosecutions and Crown Prosecutors to prosecute serious crimes. In less serious cases, Victoria Police Officers or other organisations such as Local Councils, VicRoads or WorkSafe prosecute in the Magistrates’ Court.

What is a Summary Offence?

A minor crime usually heard in the Magistrates’ Court. There is no right to a jury trial. Examples include speeding and minor assault.

What is an Indictable Offence?

A serious crime, often listed in the Crimes Act 1958 (Vic). It is heard through a trial in the County or Supreme Court.

What is the difference between a Summary and Indictable Offence?

The Court, the possible outcomes, the right to a jury. The final hearing in a Summary Offence is known as a hearing in the Magistrates’ Court and a Trial in the County or Supreme Court.

What are Committal Proceedings?

Proceedings that take place in the Magistrates’ Court when the accused pleads not guilty of an indictable offence. The final stage is called the committal hearing, when the magistrate determines whether or not the case should go to trial. If it does not, the case is not decided and may be brought before the courts again. Committal Proceedings help to ensure fairness.

What are indictable offences heard summarily?

Indictable offences with a maximum sentence of less than 10 years may be heard in the Magistrates’ Court by a magistrate alone. Whether or not an offence can be heard summarily is determined by legislation, and both the court and the accused must consent.

What are the benefits of having an indictable offence heard summarily?

It is quicker and cheaper, and may have better outcomes for the accused, as the Magistrates’ Court can impose a maximum of 2 years imprisonment for a single offence and 5 years imprisonment for multiple offences.

What is the Burden of Proof?

The responsibility of a party to prove their case. It lies initially with the party bringing the case (in criminal law, the prosecution, and in civil law, the plaintiff). The Burden of Proof can be reversed in some cases, such as when the accused pleads mental impairment, or when the accused in accused of drug possession.

What is the Standard of Proof?

The level of certainty of evidence that is required to prove a case. In a criminal case, this is ‘beyond reasonable doubt’, and in a summary offence it is ‘on the balance of probabilities’.

What is the Presumption of Innocence?

The principle that the accused should be treated as innocent until proven guilty. It is a common law right and guaranteed in Victoria’s 2006 Human Rights Charter.

How is the Presumption of Innocence upheld in court?

The presumption of innocence is upheld by imposing a high standard of proof upon the prosecution, and is supported by the right to silence, the concealment of prior convictions until after guilty sentencing, and the right to appeal.

What are 3 rights of an accused protected by the Charter of Human Rights and Responsibilities Act 2006 in Victoria?

The Right to be Tried without Unreasonable Delay, the Right to Silence and the Right to Trial by Jury.

What is the Right to Silence?

The right of the accused to refuse to answer questions, give evidence, file a defence or call a witness. According to common law, no adverse inferences may be drawn from the fact that the accused utilises their right to silence, is selectively silent, or raises a new defence later in the case. One exception to the right to silence is that the accused must give their name and address to police. This right is protected through common law and also statute law, such as in the Evidence Act 2008 (Vic).

What is the Right to Trial by Jury?

A right that is protected by Section 80 of the Australian Constitution for Commonwealth indictable offence, and also statute law in Victoria for state indictable offences. The Juries Act 2000 (Vic) requires a jury of 12 people for state indictable offences. 3 more may be added as backup, but only 12 will make a judgement.

What are the Rights of Victims in Victoria and what is their purpose?

The right to give evidence using alternative arrangements, the right to be informed about proceedings, and the right to be informed of a likely release date. Many rights are included in the Victims’ Charter Act 2006, with the purpose of recognising the impact of crime on victims and help to reduce secondary victimisation.

What is the right to give evidence using alternative arrangements?

A right provided to victims of a sexual offence, a family offence, an offence of obscene behaviour in public or sexual exposure. Some types of alternative arrangements include giving evidence through closed-circuit television, the use of screens to remove line of view, the presence of a support person, restrictions on who can be present in the court, and the requirement for legal practitioners not to wear robes and be seated whilst questioning the witness.

What is the right to be informed about proceedings?

The Victim’s Charter requires investigating agencies, prosecuting agencies and victims’ services agencies to provide clear, timely and consistant information to victims, unless it puts the victim at risk. The victim must receive details of the charged offences, the date, place and time of the hearing, the outcome, the sentence, the details of any appeal, and the fact that they have the right to attend hearings.

What is the right to be informed of the likely release date?

Victims of criminal violence may apply to be included on the Victims Register. If they are on the register, they must be notified of the offender’s parole at least 14 days before release.

What is Victoria Legal Aid (VLA)?

A state and Commonwealth government funded agency that provides free legal advice and aid for those that cannot access it another way. It helped over 80,000 clients during the 2021-2022 financial year.

What services can VLA provide?

VLA may provide free legal assistance, legal advice, duty lawyer services, and grants of legal assistance.

What sort of free legal information can VLA provide?

VLA provides online and physical resources in multiple languages, as well as the opportunity to chat with a VLA officer. Information is available for everyone in Victoria.

How does VLA offer free legal advice?

An accused person or victim can receive free advice in person or online. There is a Help Before Court service available for cases in the Magistrates’ and Children’s Courts.

What free representation is offered by VLA?

A duty lawyer may be available for legal advice if the case is an adult summary case or youth crime, and more than 6 days away. They will assist in court on the day of the trial, or arrange for an adjournment if necessary to ensure fairness. It is available for victims and accused if they are First Nations or pass an income test.

What grants are offered by VLA?

VLA may offer a Grant of Legal Assistance to the accused or victim if they meet a means test. The assistance may help to pay for various legal services or include VLA representation.

What are the weaknesses of VLA?

They are underfunded and under resourced, not everyone qualifies for assistance, and it requires prior knowledge of their services.

What are Community Legal Centres?

Independent, Commonwealth and state funded organisations providing free legal services run by volunteers. They can be generalist (providing broad legal services to a geographic area e.g. Moonee Valley Legal Service), and Specialist CLCs (focus on a particular group of people or area of law. E.g. YouthLaw for under 25s). Most only serve summary offences.

What services do CLCs provide?

They provide free legal information, advice, representation, casework, and education, with a focus on support for the disadvantaged.

What is an example of a Generalist CLC?

Justice Connect connects people with legal help and campaigns to change laws. There are self-help resources available on the website, and they specialise in Homeless Law.

What is an example of a Specialist CLC?

YouthLaw is a free statewide legal service for under 25s or adults assisting young people. They provide a helpline service and contact by a lawyer. They can help with a limited number of issues including some criminal charges. They offer free information to victims such as available options and possible compensation.

What is a plea negotiation?

Pre-trial discussions between the prosecution and accused, aimed at resolving the case without a hearing or trial. The accused may agree to plead guilty in exchange for a concession from the prosecutor, such as withdrawing some charges, or a making an agreement about the facts on which the plea is based, or a lesser charge.

How can plea negotiations take place?

They can take place through phone, writing or in person.

What is the ‘without prejudice’ basis for plea negotiations?

Neither party’s offer in a plea negotiation may be used against them during the trial.

What is the purpose of plea negotiations?

To ensure certainty of outcome, to save money, time and resources, and to achieve a prompt and less traumatic resolution.

What are the weaknesses of plea negotiations?

Plea negotiations may be held privately, causing a lack of transparency. There is no need to prove evidence beyond a reasonable doubt if an agreement is reached. Victims do not get the final say. The accused may feel pressured. Plea negotiations may not be utilised until late in the case.

In ascending order, what is the Victorian court hierarchy?

The Magistrates’ Court of Victoria (along with the Children’s Court and the Coroner’s Court), the County Court of Victoria, the Supreme Court of Victoria (Trial Division), the Supreme Court of Victoria (Court of Appeal), the High Court of Australia (Federal).

What are the reasons for the Victorian Court Hierarchy?

To allow for court specialisation, such as the Magistrates’ Court’s specialisation in summary offences and committal proceedings, and to allow for appeals, as cases can appeal to a higher court to improve fairness. However, these processes can be confusing, and appeals can be difficult to obtain.

What is the original and appellate jurisdiction of the Magistrates’ Court?

The Magistrates’ Court hears all summary offences and indictable offences heard summarily, and it oversees committal proceedings, bail applications and warrant applications. It has no appellate jurisdiction.

What is the original and appellate jurisdiction of the County Court?

The County Court hears all indictable offences except murder, attempted murder, certain conspiracies and corporate offences. It hears appeals from the Magistrates’ Court on conviction or sentence.

What is the original and appellate jurisdiction of the Supreme Court (Trial Division)?

The Supreme Court TD hears the most serious indictable offences including murder, certain conspiracies and corporate offences. It hears appeals from the Magistrates’ Court on points of law.

What is the original and appellate jurisdiction of the Supreme Court (Court of Appeal)?

The Supreme Court COA had no original jurisdiction, and hears appeals from the County Court and the Supreme Court TD, or the Magistrates’ Court when the Chief Magistrate decided the case.

What are the qualifications required to be a judge or magistrate?

You must be under 70 years old, with experience as a lawyer or have already been a judge or magistrate. To become a magistrate you must have a law degree and 8+ years experience as a lawyer.

What are the roles of judges and magistrates in court?

The must act impartially, with no apprehended (suspected) bias, manage the trial or hearing by ensuring correct procedure and adjusting the process if necessary, decide or oversee the outcome of the case, and sentence the offender.

What are some of the weaknesses of judges and magistrates?

There may sometime be apprehended bias involved in the case, there is a lack of diversity amongst judges, and they cannot interfere too much in the court process to assist self-represented persons.

How are juries made up in a criminal trial?

Juries are made up of 12 random people eligible to vote on the electoral role, although up to 15 jurors may be empanelled. Prisoners, lawyers and police officers are ineligible.

What is the role of juries in a criminal trial?

To put aside prejudices, take part in deliberation processes and to decide the facts of the case by reaching a unanimous or majority verdict (except in murder, treason or drug trafficking).

What are the weaknesses of juries in a criminal trial?

There may be bias in a jury’s decision, juries slow down the court process, jurors are not qualified legal professionals, and the empanelling process may not result in a true cross-section of society.

What is the role of the prosecution in a criminal trial?

To present the entire case to the jury or magistrate, disclose information to the accused, make submissions about sentencing, present the opening address, call and examine witnesses, cross examine witnesses, and give a closing address.

What is the role of the accused in a criminal trial?

To participate in the trial or hearing if they wish, by presenting evidence or cross-examining. They may also make submissions about sentencing.

What are the benefits of legal practitioners in the court system?

They are necessary as a part of access, have more knowledge and ability, and can view the case rationally and objectively. The court may give a court order for legal representation by VLA if the accused can prove that they cannot afford representation.

What are the weaknesses of legal practitioners?

Not all legal practitioners are equally skilled, and not everyone can afford legal representation.

What are the problems with costs in the court system?

VLA and CLCs are stretched to the limit by a high demand. 8.5 million Australians need legal assistance but fewer than half have access, resulting in more self-represented trials. This can be helped by adapting court processes for self-represented people, using committal proceedings to filter out weak cases (though most go to trial) and encouraging plea negotiations.

What are the problems with time in the court system?

County Courts estimated that it takes between 14 and 16 months for a case to be ready for trial. Some solutions are to allow for online and remote hearings.

What are some of the struggles of First Nations’ people in the justice system?

Language barriers (such as the word ‘story’ meaning ‘truth’, and ‘kill’ meaning ‘hit’), direct questioning being seen as disrespectful, cultural taboos (such as naming the dead), and the effects of generational trauma. The Koori Court may help with this, but it is only available for sentencing in the Magistrates’ and County Courts.

What are the available sentences in the Sentencing Act 1991 (Vic)?

Imprisonment, Secure Treatment Order, Drug & Alcohol Treatment Order, Youth Justice Centre Order, Youth Residential Centre Order, Community Correction order, Fine, Adjournment with conviction, Discharge, Adjournment without conviction, Dismissal.

What are the 5 purposes of sanctions?

Rehabilitation (CCOs, The Torch Program), Punishment (Fines), Deterrence (General or Specific), Denunciation and Protection (Imprisonment).

What is a fine and what is its purpose?

A fine is an amount of money to be paid by the offender to the state. They are ranked from Level 2 (High) to Level 12 (Low), and are defined by penalty units, which change in value each year. The offender’s financial situation is taken into account, and companies can pay up to 5 times the maximum penalty for an individual. Fines can be converted to community work if the offender cannot pay or owes <100 penalty units. If the offender refuses to pay, they must undertake up to 500 hours of community work, have their property seized, or be imprisoned 1 day per penalty unit for up to 2 years. The purposes of fines include punishment, deterrence and sometimes denunciation.

What is a Community Corrections Order and what is its purpose?

A sanction that can be imposed for up to 2 years in the Magistrates’ Court for a single offence and up to 5 years in other courts. The crime must be punishable by more than 5 penalty units, and the offender must consent to the sanction. They can be removed if the offender is unable to comply with the terms, no longer consents, or the CCO is no longer in the best interests of the community. The purposes are deterrence, rehabilitation and denunciation.

What are the core conditions of a CCO?

No offences punishable by imprisonment whilst on order, must report to a Community Corrections Centre within two working days, must receive visits from a community corrections officer, must notify a change of address or employment, and must not leave Victoria.

How does imprisonment work and what is its purpose?

Imprisonment is a sanction that deprives the offender of their liberty. The Magistrates’ Court can sentence up to 2 years imprisonment for a singular offence and up to 5 years for multiple offences. Parole is often offered after a non-parole period is served, although an indefinite sentence may sometimes be imposed and reviewed periodically. It serves all purposes except for rehabilitation.

What are some examples of aggravating factors in sentencing?

The use of a weapon, premeditation, the nature of the offence, the vulnerabilities of the victim, the presence of children, prior convictions etc.

What are some mitigating factors in sentencing?

Demonstrated remorse, the absence of a criminal history, duress, a good character, youth, disability etc.

How does a guilty plea affect sentencing?

Early guilty pleas must be taken into account to reduce the severity of the sentence. If a guilty plea is made, the judge is required to state what the sentence would have been had the accused pleaded innocent and been found guilty.

How do victim impact statements influence sentencing?

Victim impact statements outline the harm that the victims experienced due to the crime, and may result in an increased or sometimes reduced sentence.