Legal Studies Unit 1 AOS 1 - The Victorian criminal justice system

Summary offence

Minor criminal offence, such as common assault, that is generally heard in the Magistrate's Court

Indictable offence

Severe criminal offence heard in the County or Supreme Court, like murder or kidnapping

Indictable offence heard summarily

Less serious indictable offences that can be heard in the Magistrate's Court

Reasons why an indictable offence may be heard summarily

• Less costly

• Less time consuming

• Imposes a less severe sentence

Circumstances where an indictable offence may be heard summarily

• The offence is not punishable by a maximum term of ten years imprisonment

• The court agrees and determines it is appropriate

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

The burden of proof

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

The burden of proof in a criminal case

The prosecution

The standard of proof

The degree to which the facts of a case must be proven

The standard of proof in a criminal case

Beyond reasonable doubt -- no reasonable doubt that the accused is guilty

The presumption of innocence

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

How the presumption of innocence is upheld

• The right to silence

• The right to apply for bail

• Prior convictions are not revealed until sentencing

Three rights of the accused

The right to be tried without unreasonable delay, the right to silence, and the right to trial by jury

The right to be tried without unreasonable delay

An entitlement that all accused people have to have their case heard in a timely manner unless the court considers the delays to a trial to be 'reasonable'.

Why we have the right to be tried without unreasonable delay

• Witness testimonies become less reliable over time

• Upcoming trials can cause immense stress on the accused, victims, and their families

• If a trial has garnered media attention or involves high-profile individuals, it becomes more difficult to find twelve unbiased jury members

• Costs of legal representation may increase with long delays before a trial

The right to silence

Allows a person to remain silent when questioned or asked to supply information by a person in authority. It is a common law principle but has since been protected in legislation such as the Evidence Act 2008 (Vic)

Why we have the right to silence

• Upholds the presumption of innocence - if an accused person chooses to exercise their right to silence, this cannot be seen as an admission of guilt

• Under stress from police questioning, an accused may make false statements in the heat of the moment, which could be used against them in court

• Protects invasions of privacy and liberty

• Aims to reduce the power imbalance between the prosecution and the accused - police and other authorities cannot use their powerful position to force an accused, who is more vulnerable comparatively, into confessing

The right to trial by jury

Allows accused persons to have their verdict determined by impartial members of the community rather than a single judge

Why we have the right to trial by jury

• Jurors are impartial and unbiased decision makers

• The presence of a jury will likely result in lawyers using plain English, will enables for greater understanding of the case for those who are not familiar with the law during trial

• Accurate reflection of the community

Three rights of a victim

The right to give evidence using alternative arrangements, the right to be informed about proceedings, and the right to be informed of the likely release date of their offender

The right to give evidence using alternative arrangements

An entitlement provided to victims or witnesses of certain crimes to give evidence in court in a non-standard way, that aims to be less traumatic for the victim and reduces the possibility of secondary victimisation

Examples of alternative arrangements

• Giving evidence from outside the courtroom using CCTV

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

• Allowing a person to be beside the victim while they are giving evidence to provide emotional support

The right to be informed about proceedings

Victims are entitled to information about the case, subject to certain limitations when disclosing information to a victim might jeopardize any investigations

Examples of information

• The offences the accused has been charged with

• Key developments in the case

• Outcomes of a trial or appeal

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

Victims can apply to be registered on the Victims Register, where they will be informed of the likely release date of their offender who has been imprisoned. A person can be placed on the Victim’s Register if they or a family member are a victim of a ‘criminal act of violence’, such as assault, kidnapping, or stalking

What else can a victim be informed of

• Whether their offender has applied for or is released on parole

• The offender’s death or escape from prison

• The length of the offender’s sentence

Victoria Legal Aid (VLA)

A government funded agency that promotes free legal information, advice, and free or low-cost legal representation

Strengths of VLA (Fairness)

Providing ‘duty lawyers’ in the courts who give advice and assistance to accused people ensures a fair trial is conducted

Weaknesses of VLA (Fairness)

VLA recieves limited funding and therefore can only afford to provide legal advice and/or representation to a small number of people at a time

Strengths of VLA (Equality)

VLA provides video resources in Auslan for those who are deaf or hard of hearing, ensuring that people belonging to these groups are not at a disadvantage

Weaknesses of VLA (Equality)

The means and income tests prevent some from accessing the services of VLA, hindering access to justice

Strengths of VLA (Access)

• VLA provides free information on its website which is accessible to all accused people and victims

• VLA’s services can be accessed in person, over the phone, and online, allowing for multiple avenues of access to legal support

• VLA ensures those who are disadvantaged are prioritised in receiving legal aid, regardless of personal characteristics or qualities

Weaknesses of VLA (Access)

• VLA does not provide services for all types of legal matters

• Information provided online by VLA may be inaccessible to those who are not connected to internet or do not have the knowledge to navigate such technologies

Community Legal Centres (CLCs)

Non-profit organisations that provide free legal information, advice, education, and casework services. CLCs are funded by VLA, state and federal governments, and private donations

Generalist CLCs

Provide services for a broad range of legal matters

Specialist CLCs

Provide services regarding a specific area of the law or for a particular group of people (e.g. Youth CLCs)

Strengths of CLCs (Fairness)

• Victims of crime are able to receive legal support, allowing them to better participate in court proceedings and provide more accurate statements, thus promoting a just and fair outcome

• CLCs can sometimes provide legal representation to accused individuals, promoting fairness as the accused is provided with the necessary assistance to navigate the complexities of the criminal justice system and adequately present their case

Weaknesses of CLCs (Fairness)

CLCs do no often have the means to provide accused individuals with legal representation, meaning that those individuals would have to self-represent in court unless they are eligible for assistance from VLA

Strengths of CLCs (Equality)

CLCs often have an interpreter service for those from non-English speaking backgrounds

Weaknesses of CLCs (Equality)

The eligibility requirements for legal representation from a CLC are strict, meaning that those whose circumstances are not considered dire enough to warrant help, are unable to receive it

Strengths of CLCs (Access)

• CLCs provide free legal advice and information

• Specialist CLCs can provide tailored advice about specific areas of the law, increasing access to personalised assistance

Weaknesses of CLCs (Access)

• Majority of CLCs are located in metropolitan Melbourne, limiting the ability of those living in rural areas to acquire free legal services

• The lack of funding given to CLCs impedes their ability to take on many new cases

Fairness

Aims to ensure that all people can participate in the justice system and its processes should be impartial and open

Examples of Fairness

• The presumption of innocence

• The burden of proof lies with the prosecution

• High standard of proof in criminal cases

Equality

All people deserve to be treated the same, irregardless of personal characteristics or attributes such as race, sex, religion, or class

Examples of Equality

• The availability of interpreters

• The rule of law

• Consistent application of the law

Access

All people should be able to participate in the justice system and its proceedings on an informed basis

Examples of Access

• Most hearings are open to the public

• Resolution of cases with minimal delay

• The availability of legal aid