Legal Studies - Exams

Criminal Law

an area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct.

Crime

an act or omission that violates an existing law, causes harm to an individual, or society as a whole, and is punishable by law

Statute law

the body of law that comprises laws made by parliament, also known as legislation.

Sanction

a penalty imposed by a court on an offender when they plead guilty or are found guilty of a crime.

Summary offence

a minor criminal offence usually heard in the Magistrates’ Court.

Indictable offence

a criminal offence that is serious in nature and generally heard by a judge and jury in the County or Supreme Court.

indictable offences heard summarily

A set of cases of indictable offences that can be heard in the Magistrates court. 

Indictable offences may be heard summarily where

• The offence is not punishable by a maximum term of more than 10 years of imprisonment. 

• The court agrees and believes it’s appropriate. 

• The accused consents to having their offence(s) heard summarily. 

Burden of proof

the responsibility of a party to prove the facts of a case.

Standard of proof

the degree to which the facts of a case must be proven in court.

Beyond reasonable doubt

he judge or jury must have no reasonable doubt, based on the evidence presented, that the accused is guilty.

Presumption of innocence

the right for all accused persons to be presumed innocent until it is proven otherwise beyond reasonable doubt.

Features that uphold the Presumption of Innocence

• The right to silence

• The right to apply for bail

• The right to appeal a case

• Prior convictions are not revealed to ensure jury does not prejudice the accused before the case is presented.

Rights of an accused

• the right to be tried without unreasonable delay

• the right to silence

• the right to trial by jury.

Right to be tried without unreasonable delay

an entitlement accused people possess to have their case heard in a timely manner unless the court considers delays to the trial to be ‘reasonable’.

The right to be tried without unreasonable delay

an entitlement accused people possess to have their case heard in a timely manner unless the court considers delays to the trial to be ‘reasonable’.

The rationale for the right to be tried without unreasonable delay 

• witnesses memories can fade and key aspects of the offence can be forgotten, causing witness testimonies to become less reliable. 

• An upcoming trial can cause stress for the accused, victims and families as the outcome of the criminal case remains unknown. 

• If a criminal trial is presented on media, the increased delays may make it more difficult to find 12 unbiased jury members who do not know about the case.

Right to silence

a common law right that allows a person to remain silent when questioned or asked to supply information by a person in authority.

The rationale for the right to silence 

• The right reflects the burden of proof in a criminal case in that the onus is on the prosecution to prove the accused is guilty, not the responsibility of the accused to prove their innocence.

• The right protects an accused person from an invasion of privacy. 

Right to trial by jury

a right to be tried by unbiased members of the community who have been randomly selected from the electoral roll.

The rationale for the right to trial by jury

• Jurors are required to have no connections to either the prosecution or the accused and cannot have prior knowledge about the facts of the case. A jury should represent a cross-section of the community and not be biased towards either party, 

• The presence of a jury will likely result in lawyers using clear, plain English allowing all parties to understand the proceedings easier. 

a right to be tried by unbiased members of the community who have been randomly selected from the electoral roll.

Victims in Victoria can give evidence in court in a non-standard way that aims to be less traumatic for the victim. 

Examples of alternative arrangements

• Using a screen to remove the accused from the witness’ line of vision.

• Allowing a person beside the witness while they are giving evidence to provide emotional support. 

Rationale for the right to give evidnece using alternative arrangements 

• The process of giving evidence can be made less traumatic for victims. 

• Victims may be less likely to feel intimidated by the accused, therefore improving their ability to present reliable evidence. 

Right to be informed about the proceedings

an entitlement whereby victims can be provided with information about the case they are involved in, subject to certain limitations.

Rationale for the right to be informed about the proceedings

• Being informed about proceedings against the accused is important for victims, as victims believe that the accused should be held accountable, if deemed guilty. 

• Uncertainty is eliminated, which can minimise the risk of victims suffering secondary victimisation as a result of the legal proceedings. 

Right to be informed about the likely release date of the offender

A right provided to victims where by they can apply to be registered on the Victims Register and will be informed about the likely release date of an offender who has been imprisoned.

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

• Victims are apply or extend an intervention order to prevent the offender from contracting them.

• Victims on the Victims Register can make a submission to the Adult Parole Board to express the effect that the offender’s release may have on them. 

Fairness

the principle that all people can participate in the justice system and its processes should be impartial and open.

Legal principles that uphold fairness 

• The presumption of innocence 

• The burden of proof lies with the prosecution 

• The standard of proof 

• Most hearing are open to the public 

• A right to seek legal representation 

Equality 

the principle that 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 all to engage with the justice system without disparity or disadvantage.

Legal principles that uphold equality

• The right for all accused people to be treated the same

• The availability of interpreters

• The rule of law

• The right for all victims of crime to remain informed about proceedings and contribute to the sentencing process.

Access

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

Legal principles that uphold access 

• The availability of free legal info for all 

• Resolution of cases with minimal delays 

• The availability of legal aid 

• The availability of interpreters 

• The right to a trial by jury for all serious criminal offences

Victoria Legal Aid (VLA)

a government-funded agency that provides free legal information, advice, and free or low-cost
legal representation.

The role of VLA in assisting an accused person

• Provide free legal aid

• Provide free legal services 

• Provide duty lawyer services 

• Provide grants of legal assistance 

Income test

an assessment conducted by Victoria Legal Aid to determine whether an accused person is eligible for a duty lawyer.The test requires an accused person to prove their income is limited.

Means test

an assessment conducted by Victoria Legal Aid to determine whether an accused person is eligible for a grant of legal assistance.

Grant of legal assistance

a sum of money provided by Victoria Legal Aid to pay for a person’s legal assistance

Duty lawyers

lawyers employed by Victoria Legal Aid who assist people in court on the day of their hearing.

The role of VLA in assisting victims of crime

• Provide legal info

• Provide a Victims legal service 

• Provide duty lawyer services 

• Provide grants of legal assistance 

Community legal centres (CLCs)

not- for-profit community organisations that provide free legal information, advice, education, and casework services.

2 types of CLCs

1. Generalist CLCs that can assist individuals in a particular geographical area and can provide legal services for a broad range of legal matters.

2. Specialist CLCs that can provide legal services regarding a specific area of law or for a particular group of people.

The role of CLC in assisting accused persons 

• Provide legal info 

• Provide basic legal advice 

• Provide legal representation 

The role of CLC in assisting victims of crime

• Provide legal info

• Provide basic legal advice and assistance 

• Provide duty lawyer services 

• Provide legal representation 

Plea negotiations

discussions between the prosecution and the accused, aimed at encouraging the accused to plead guilty to a lesser charge. 

An accused may plead guilty to an offence in exchange for…

• The withdrawal of some other charges. 

• The accused pleading guilty on a mutually agreed set of facts regarding the offence. 

• A reduction in the severity of the charge.

Purposes of plea negotiations

• Achieve an early determination of a case

• Avoid the stress and trauma associate wit a trial

• Avoid the costs associated with a trial 

• Secure a conviction 

• Allow the offender to receive a reduced sentence 

When a plea negotiation is appropriate

• The accused is willing to plead guilty

• The accused or prosecution wishes to avoid the costs and time

  associated with a criminal trial.

• The accused is representing themself and is unable to present their case in the best possible light.

When a plea negotiation is not appropriate 

• The accused is not prepared to plead guilty to any charges.

• The alleged offending is serious to the point that a conviction for lesser charges is not in the public interest and the perception that the accused ‘got off lightly’ will be too great.

• The victim or their family opposes such an agreement.