UNIT 3 LEGAL STUDIES

Burden of proof

The responsibility of proving the case lies with the plaintiff who initiates the legal action in court.

Standard of proof

The level of evidence required by the party bringing the action, typically based on the balance of probabilities in civil cases.

Costs

The expenses associated with a civil claim, including solicitor fees, hearing fees, and other legal costs.

S/W of costs

Strength

·       alternative dispute resolution allows for lower costs and easier access (access)

·       ensure fair trials and judges responsibility to maximise ones chance of succeeding a just outcome (fairness)

Weakness

·       because of increase in costs there are more self represented parties. this could have a negative impact on ability to make out case (access + equality)

·       financial situations may not allow for person to access certain things. (legal representation and assistance)(access)

Limitation of actions

Time constraints within which a civil claim must be filed, known as limitation periods.

Enforcement issues

Complications that may arise during the application or execution of a court order in a civil claim.

Judges and magistrates

Impartial individuals responsible for ensuring adherence to legal procedures, deciding questions of law, remedies, and managing cases.

ensuring rules of evidence and procedure are followed

deciding q of law

deciding remedy

decisions based on facts

S/W of judge and magistrate

Strength

• Are impartial, while also not interfering with the trial. no one party is advantaged or disadvantaged because the judge or magistrate ‘takes side’. (fairness + equality)

• are experts (fairness)

• manage cases before and during the trial, though case management powers they ensure disputes are resolved in a just, efficient, timely and cost-effective manner. (fairness + access)

• able to assist self-represented parties, such as explaining cross-examination processes, or explaining what discovery is. (access + equality)

Weaknesses

• there are risk that they have actual or apprehended bias that impacts their decision-making, such as when they are fatigued. (fairness)

• diversity of judges and magistrates has previously been criticised by some, which may increase distrust. (equality)

• parties continually fail to comply with pre-trial steps but no consequences arise, which mean there will be a delay in the case being heard. (fairness + access)

• cannot interfere excessively in their cases, including those involving a self-represented party. (fairness + access)

Juries

Groups of individuals from the community summoned to decide on evidence and reach a verdict in civil cases, contributing to fairness and access to justice.

deicisons based on facts

decide damages

take part in deliberations

put aside prejudices

S/W of juries

Strength

• randomly picked, have no connection to the parties and make a decision based on facts, not on biases or on their own enquiries. (fairness)

• allows members of the jury to participate in the civil system processes and ensures that justice is ‘seen to be done’. this will enable them to be more informed. (access)

• collective decision making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group. (fairness)

• juries represent a cross section of the community. (equality)

Weaknesses

• do not give reasons for their decisions, there is no way of knowing whether a bias played a role in their decision making (equality)

• understanding of the legal principles involved and the evidence may not be sufficient (access)

• jury trials may result in further delays as matters need to be explained tot he jury, and a jury may require some time to deliberate. (access)

• a member of people cannot participate in a jury because they are ineligible, excused or disqualified. therefore, it is possible that a large section of the community is not represented. (fairness)

Parties

Plaintiffs and defendants who control their cases, make decisions, and choose legal representation in civil disputes.

invesitgating proceedings (plaintiff)

defending claim (defendant)

choosing legal representation

S/W of parties

strength

• have obligation to disclose and ‘discover’ all relevant documents (fairness)

• both parties have the opportunity to present their cases, including making opening and closing addresses. this also includes the opportunity to examine and cross-examine witnesses (fairness)

• the parties have complete control over how they runt heir case. they decide whether to make certain claims or defences, or what evidence to rely on. (equality)

Weaknesses

• some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to have to disclose relevant documents. (fairness)

• complex and difficult to understand without the use of a lawyer (equality)

• decisions about how to run their case, which can add to delays. this can be stressful and cost money. (fairness + access)

Legal practitioners

Professionals who present cases, provide legal advice, and explain the law and options for parties in civil disputes.

presenting facts

representing interests

explaining law and options

S/W for legal practitioners

Strength

• are experts who will be able to help the parties navigate the system. this includes assisting and conducting opening and closing addresses, examining witnesses, etc. (access + fairness)

• lack objectivity and may be too invested in the decision. (fairness)

• avoid delays that may arise with self-represented parties (access)

Weaknesses

• equal or have the same level of experience and skills (equality)

• not everyone is able to afford legal representation, so some may be left to represent themselves (equality)

• even if a self represented party can afford a lawyer it is still a great expense to them or their family, if they lose they may have to pay other parties costs too (equality)

Class actions

Legal cases filed by a representative on behalf of multiple individuals, streamlining the court process and sharing costs and resources.

S/W of class actions

Strength

• group members are not responsible for the payment of any costs if the claim is successful.

• a more efficient way of dealing with claims, because its not multiple but one large case

• litigation funders may cover costs

• good way to pursue claim but not be directly involved

Weaknesses

• lead plaintiff is responsible for costs if case is lost and have no pre-signed agreement that the law firm or litigation funder will cover the costs.

• lead plaintiff has to become the face of the case, that is if someone decides to step up for the role.

• group members may not have up to date information or adequate information

• size of class action will take up a significant amount of court time and resources.

case management

• Civil Procedure Act 2010 resulted in Victorian judges receiving a number of powers when dealing with cases. The power to refer a civil case, or part of a civil case, to mediation is one of the powers gained. this means they can order the plaintiff or defendant to take part in mediation at any stage of pre-trail and/or trial process. The act also asserts that judges can make these order without the consent of the parties, and giving them the power to encourage parties to attend to mediation. They are also given the power to give directions or any order they consider appropriate, in order to facilitate the just, efficient, timely, and cost-effective resolution. directions can be made in the interests of justice or the public interest. Can impose any reasonable limits, restrictions or conditions relating to the management and conduct of any aspect of a civil proceeding; or conduct of any party.

Mediation

An informal process where disputing parties cooperatively attempt to resolve their dispute with the help of an independent third party, the mediator.

appropriateness of mediation

• mediation tends to be appropriate. Beneficial when continuing relationships (e.g. neighbours), this is useful in situations it allows for emotions to be heard, present all evidence according to the rules and procedures of the case. Most effective when both parties are willing to meet in compromise and prepared to stick with any decisions made. appropriate where defendant has admitted liability, the only issue to determine is the compensation to be paid to the plaintiff. mediation may be inappropriate and ineffective as a dispute resolution method when there are overwhelming emotions involved in the dispute as it can interfere with negotiation process. also when there is a gross imbalance of power, and a history of dishonesty and broken promises, as mediation requires goodwill and honesty of the parties to be successful.

Conciliation

An informal process where disputing parties cooperatively attempt to resolve their dispute with the assistance and advice of an independent third party, the conciliator.

appropriateness of conciliation

• is appropriate in many cases. conciliation is appropriate in civil disputes where a continuing relationship is required between the parties. the resolution method tends to be more beneficial. it is appropriate where one or both parties lack the time or money needed for a trial or hearing.

  nevertheless, is can be inappropriate in a number of cases. conciliation i unlikely to be effective in civil disputes where there are overwhelming emotions at play, there is a gross imbalance of power and there is a history of broken promises and dishonesty by one or both parties.

S/W of medication and conciliation

Strengths for mediation and conciliation

·       Involve independant, impartial third parties who does not take sides but facilitates the discussion and may assist the parties to reach a resolution. (fairness)

·       Are much less formal than a court hearing, therefore less likely to be intimidating, stressful and daunting for parties, particularly those who do not have experience in civil disputes (equality)

·       If successful they can save significant time in waiting for a final hearing or trail. they also save cost on the final trial or hearing. This can be beneficial particularly for a party who wishes to keep the settlement confidential. (fairness + access)

Weaknesses for mediation and conciliation

·       decision reached may not be enforced, or may be difficult to enforce, depending on terms of settlement, may be a lot of money and time spent on resolution. plaintiff will need to continue with their case anyway if the defendant fails to comply. (fairness + access)

the court is not deciding the case, one party may compromise too much, or one may be more manipulate or stronger, so that the other party may feel intimidated. (equality)

Arbitration

A process where an independent third party listens to evidence and arguments before making a legally binding decision on the dispute.

appropriateness of arbitration

• Tends to be appropriate when involving disputes less that $10000, as shown in the magistrates referral. It also works well when parties require the matter to be resolved quickly, one or both parties lack financial ability to pay for legal representation - as the lack of rules of evidence and procedure in arbitration

S/W of arbitration

Strengths in arbitration

·       Is normally held in private and will be confidential, which can be beneficial for parties wishing to avoid the publicity of a trial. no fear for damage to representation. (fairness + equality)

·       arbitrator is generally an expert on the subject matter and required to act impartial when making a binding decision. (access)

·       control over how arbitration is conducted and allows for catering to specific needs and preferences. (equality)

Weaknesses in arbitration

·       costly and takes a long time depending on the nature of the dispute and the way parties have dedicated to resolve it. (fairness + access)

Consumer Affairs Victoria (CAV)

Regulator overseeing business-consumer relations, resolving disputes between consumers and traders, tenants and landlords, and educating on rights and laws.

S/W of CAV

Strengths

·       CAV conciliation is free (equality)

·       Conciliation process is informal and can be conducted over the phone, which removes any anxieties (access + equality)

·       accesses disputes individually, reducing waste of time and resources (fairness)

Weaknesses

·       limited to mainly consumer and CAV disputes, meaning that it has no power to assist with many other types of civil disputes (access)

·       not all cases are accepted by CAV and its conciliation services are limited (fairness?)

purpose and appropriateness of CAV

Purposes of CAV:

• to ensure businesses to comply with consumer laws

• encourage Victorians to exercise their consumer rights

• provide for fair and safe residential tenancies

• encourage a modern and effective consumer law framework.

Appropriateness of CAV: CAV specialisation and expertise is likely to be appropriate in the resolution of disputes between consumers and businesses. CAV resolves civil disputes via conciliation making it very appropriate for tenants and landlords, as an ongoing relationship may be required.

However, there is a number of matters where it is an inappropriate way of dispute resolution. It would be inappropriate in resolving family law disputes, as well as parties part of a contest and disputes regarding personal injury. This is also the case when there is a great hostility between the parties.

Victorian Civil and Administrative Tribunal (VCAT)

Independent tribunal hearing civil law matters, providing cost-effective, timely, accessible, and quality dispute resolution.

purpose and appropriateness of VCAT

Purposes of VCAT:

• To provide cost-effective civil dispute resolution:

• To provide timely civil dispute resolution:

• To provide accessible and informal civil dispute resolution:

• To provide quality civil dispute resolution heard by expert bodies:

Appropriateness of VCAT: its appropriate when, through its number of divisions and lists, civil cases regarding discrimination, equal opportunity, residential tenancies and retail tenancies, building and construction, credit, consumer affairs, and even government decisions are involved. its also appropriate when parties require the dispute to be resolved promptly and cheaply. furthermore, VCAT makes it so civil disputes where parties may be prone to being intimidated by court proceedings.

S/W of VCAT

Strengths

·       VCAT is cheaper than courts, costs are saved by not having to partake in expensive pre-trial producers (equality)

·       VCAT offers faster procedures than court, saving time and less chance of delays (fairness)

·       informal atmosphere, disallowing any anxieties (access)

·       unrepresented parties are given equal opportunity to understand processes and present their case (equality)

Weaknesses

·       courts can sometimes be as high, if not higher, than fourt fees because of increases legal representation (equality)

·       delays have been seen in some of the divisions of VCAT, this is following COVID-19 (fairness)

·       may be too informal, some parties may feel uncomfortable or ill-equipped to deal with formal procedure. (access)

Damages

A civil remedy in the form of monetary compensation paid by the defendant to the plaintiff to compensate for losses suffered.

Compensatory damages

Aim to compensate the plaintiff for losses suffered, including specific, general, and aggravated damages.

Nominal damages

Awarded to the plaintiff in a small amount to recognize the infringement of rights.

Exemplary damages

A large sum awarded to punish the defendant for reckless behavior and deter such actions in the future.

Damages

Monetary compensation awarded to plaintiffs to restore them to the position they were in before the wrong occurred.

Unquantifiable losses

Damages for losses that are difficult to measure, determining the appropriate amount.

Injunctions

Court orders directing someone to stop or do something, granted before or after a trial to rectify a situation.

Restrictive or prohibitive injunction

Court order to stop someone from doing something to preserve a party's position.

Mandatory injunction

Court order to compel a person to perform a specific act to rectify a situation.

Compliance with the injunction

Consideration of whether the defendant will adhere to the court's order.

Restoring plaintiff's position

Evaluation of whether the injunction will return the plaintiff to their original state.

Rectifying damages

Assessing if the harm caused by the defendant can be corrected.

Alternative remedies

Considering if there are other solutions more suitable for achieving the intended purpose.

S/W of time

Strengths

·       powers given through case management allows for less delays (fairness)

·       quick and efficient hearings (fairness)

·       VCAT has programming to address delays (fairness + access)

Weaknesses

·       delays have serious impact on vulnerable parties (fairness)

·       delays force parties to settle to withdraw their claim (access)

summary offences

A summary offence is a minor crime that is generally heard in the Magistrates’ Court. Summary offences are less serious types of crime, such as drink driving, disorderly conduct and minor assaults. The final hearing at which both parties will put their case before a magistrate is known as a hearing (as opposed to a trial in the County Court or Supreme Court). There is no right to a jury trial for summary offences.

indictable offences

An indictable offence is a serious crime. Examples of indictable offences include homicide offences (such as murder or manslaughter), sexual offences, some theft crimes and drug trafficking. Indictable offences are heard in the County Court or Supreme Court of Victoria, and the final hearing is known as a trial. A jury is used to determine guilt if the accused pleads not guilty.

committal proceedings

When an accused has been charged with an indictable offence and pleads not guilty, committal proceedings take place in the Magistrates’ Court. Committal proceedings involve several stages, including a final stage, called the committal hearing, at which the magistrate will decide whether there is evidence of sufficient weight to support a conviction at trial. If the magistrate does find there is sufficient evidence, the accused is committed to stand trial and the case is then transferred to the higher court that will hear the case.

indictable offences heard and determined summarily

Some indictable offences are known as indictable offences heard and determined summarily. These are indictable (serious) offences, but they can be heard in the Magistrates’ Court as if they were summary (minor) offences. Whether an indictable offence can be dealt with as a summary offence is determined by statute.

The accused will usually choose to have an offence heard summarily, mainly because it is quicker and cheaper to have a case heard in the Magistrates’ Court, and the maximum penalty that can be handed down is less than if it were heard as an indictable offence. The Magistrates’ Court can only impose a maximum of two years’ imprisonment for a single offence, and a maximum of five years’ imprisonment for multiple offences.

burden of proof (principle)

The burden of proof refers to which party has the responsibility to prove the facts of the case. The burden of proof lies with the person or party who is bringing the case. In a criminal case, this is the prosecution (i.e. the prosecution must prove that the accused is guilty)

One of the justifications for this is that if the prosecution is accusing a person of having committed a crime, then the responsibility should be on the prosecution to establish the facts. In a few cases the burden of proof can be reversed – for example, if the accused is pleading a defence such as mental impairment.

standard of proof (principle)

The standard of proof refers to the level of certainty or strength of evidence required to prove the case. In a criminal case, the prosecution must prove the case beyond reasonable doubt. Proving someone guilty beyond reasonable doubt does not mean that no doubt at all exists as to the accused’s guilt. It only means that no reasonable doubt is possible from the evidence presented. To prove guilt in a criminal case, what matters is that no other logical or reasonable conclusion can be reached (based on the facts) except that the accused is guilty.

(principle) the presumption of innocence

It means that if a person is accused of committing a crime, they are considered innocent until proven otherwise. is an old common law right. It is now also guaranteed by the Charter of Human Rights and Responsibilities Act 2006 (Vic). is upheld is by imposing a high standard on the prosecution to prove its case (that is, beyond reasonable doubt), and by imposing the burden of proof on the prosecution. That is, the prosecution must prove that the accused is guilty. Accused persons do not have to prove they are innocent.

(right to accused) right to be tried without unreasonable delay

an accused is entitled to have their charges heard in a timely manner, and that The Human Rights Charter states that an accused is entitled to have their charges heard in a timely manner, and that delay should only occur if it is considered reasonable. delays should only occur if they are considered reasonable. This right is ‘without discrimination’. Every accused person is entitled to this right regardless of their prior convictions or personal characteristics. This is because, under the Charter, people have a basic right to liberty and security, and accused persons are presumed innocent until proven guilty. Therefore, people should not be held for an unreasonable amount of time while they are awaiting trial.

(right to accused) right to silence

unfavourable inferences (negative conclusions) cannot be drawn because a person has failed or refused to answer questions or respond to a matter put to them in an investigation. When giving directions to a jury, a judge may direct the jury that the accused has a fundamental right to remain silent, and that the jury should not conclude that the accused is guilty because they remained silent. A judge must also not suggest to a jury that it can conclude the accused is guilty because they did not give evidence or call a particular witness. There are some exceptions to the right to silence. For example, if the police believe that a person has committed or is about to commit a crime, or may be able to assist in the investigation of an indictable offence, the person must give their name and address if asked to do so.

(right to accused) right to trial by jury

peers within the community decide the outcome of the case – in a criminal case, whether or not the accused is guilty. This right dates back to well before the Magna Carta in England, established in 1215, which said that no free man shall be imprisoned except by lawful judgment of his peers. The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards. The right to trial by jury is not protected by the Human Rights Charter, but rather protected in part by statute law in Victoria (for state indictable offences), and in part by the Australian Constitution (for Commonwealth indictable offences).

state indictable offences

For Victorian indictable criminal offences, the Juries Act 2000 (Vic) requires there to be a jury of 12. The Criminal Procedure Act 2009 (Vic) and the Juries Act also contain provisions about processes in relation to jury empanelment and directions to be given to juries. There is no right to trial by jury for summary offences.

commonwealth indictable offences

any person who is charged with a Commonwealth indictable offence is entitled to a trial by jury. In the past, the High Court has interpreted this as a right that cannot be refused by an accused. That is, an accused cannot choose to be tried by judge alone if they have been charged with a Commonwealth indictable offence. Commonwealth indictable offences are serious offences set out in Commonwealth law, and include those described in Topic 3.1 (such as organ trafficking, terrorism and importation of illegal substances).

However, section 80 of the Australian Constitution provides only a limited right to trial by jury, because most indictable offences are crimes under state law, and this section only applies to Commonwealth offences. In addition, the Commonwealth Parliament can determine by statute which offences are ‘indictable’

(right to victim) to be informed of proceedings

The Victims’ Charter requires investigatory agencies, prosecuting agencies and victims’ services agencies (which includes police officers, the DPP and the Victims of Crime Commissioner) to provide clear, timely and consistent information about support services, possible compensation entitlements and the legal assistance available to persons adversely affected by crime. requires an investigatory agency (a body which conducts a criminal investigation, such as Victoria Police) to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence. The information does not need to be given if it may put the investigation at risk, or if the victim chooses not to receive that information. Once a prosecution has commenced, the Victims’ Charter requires the prosecution to give a victim the following information: details of the offences charged against the person, if no offence is charged, the reason why, how the victim can find out the date, time and place of the hearing of the charges, the outcome of the criminal proceeding, including any sentence imposed, details of any appeal. The victim must also be told that they are entitled to attend any court hearings

(right to victim) right to give evidence using alternative arrangements

a victim may be a witness in the case. If so, they may have to give evidence in support of the prosecution’s case against the accused. the court can direct alternative arrangements to be made for any witness who gives evidence in criminal proceedings that relate to a charge for: a sexual offence, a family violence offence, an offence for obscene, indecent, threatening language or behaviour in public, an offence for sexual exposure in a public place. The arrangements can be made at any stage of the criminal proceeding. given through: closed- circuit television, screens to stop direct line of visions, support person, certain ppl only in court, legal practitioners in casual clothes or seated. purpose is to reduce trauma, distress and intimidation

(right to victim) right to be informed of the likely release of an offender

Once a person is registered on the Victims Register, they may receive certain information about an offender who has been imprisoned, including notification of the release of the prisoner on parole at least 14 days before the release.

Other rights are also available to a victim on the Victims Register, including the right to know the length of the sentence, the right to be told if the offender escapes from prison, and the right to make a submission if the imprisoned offender may be released on parole.

VLA

VLA is a government agency that provides free legal information to the community, and legal advice and legal representation for people who cannot afford to pay for a lawyer. It prioritises people who need it the most and cannot get legal assistance any other way.

objectives of VLA

provide legal aid in the most effective, economic and efficient manner, manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout Victoria, provide the community with improved access to justice and legal remedies, pursue innovative means of providing legal aid to minimise the need for individual legal services in the community, and ensure the coordination of the provision of legal aid and legal assistance information so that it responds to the legal and related needs of the community.

duty lawyers (income test) VLA (accussed)

An accused meets the income test if they produce a current Centrelink benefit card (to show that they are receiving welfare benefits from the Commonwealth Government) or pensioner concession card to the duty lawyer. If they do not have one of these, they may still meet the income test if they sign a declaration that shows they have limited income (e.g. their primary source of income is from welfare, or their weekly after-tax income is less than a certain amount).

grant of legal assistance (the means test) VLA (accussed)

he means test is for people who are seeking a grant of legal assistance (including help with preparing for a case, or representation in court). The means test considers the person’s income and other assets (such as houses, cars or savings). For example, if the accused person receives more than $360 per week in income after living expenses are deducted, then they are not eligible under the means test. If VLA has denied an accused person legal assistance, they can apply to have the decision reviewed by an independent reviewer. A decision made by the independent reviewer can then be appealed to the Supreme Court of Victoria.

assistance for acussed

The Victoria Legal Aid (VLA) offers free legal information and advice to all Victorians. Their website provides access to publications, resources, and a public law library, with opportunities to speak with a VLA officer via phone or online chat. Legal advice is available based on an individual's income, focusing on those most in need. Additionally, VLA’s "Help Before Court" service assists those charged with criminal offenses in the Magistrates' or Children's Court, offering legal advice or representation, depending on the case and income level

assistance for victims of crime

navigating the criminal justice system, including understanding their rights, the processes involved, and their options to participate in the criminal justice system. They may also need help with understanding certain processes, such as plea negotiations (which you will learn about in Topic 4.4) and appeals intervention order (a court order which aims to protect a person, their partner or property from a family member), or a personal safety intervention order (a court order that seeks to protect a person, their children and their property from another person).

obtaining financial assistance or compensation because of the loss suffered as a result of a crime. through the Victims of Crime Financial Assistance Scheme. The Scheme (which replaces a tribunal dedicated to victims) provides financial assistance to victims of violent crime (which include family members). The financial assistance is government funded in a criminal case compensation and restitution orders can be made by a court. A restitution order requires an offender to return stolen property (such as where the offender was convicted of theft offences). A compensation order is a payment by the offender to the victim for loss or injury a victim may instead take civil action and sue an offender, or someone else, for loss that has been inflicted on them identifying other supports that may be available to them, particularly social or mental health support.

strengths (VLA)

Free legal information is available on VLA’s website (through its online chat and resources) to everyone, including victims, regardless of their income or means. This includes information about court processes, an accused person’s or victim’s rights, and basic legal principles.

Free legal advice and assistance, such as through duty lawyers and grants of legal assistance, is given to eligible people who are most in need, including people in custody and First Nations peoples. The aim is to prioritise the most vulnerable in our society.

Some legal information is provided in more than 30 languages. VLA’s website also states that its staff speak many languages and can organise a free interpreter.

VLA uses online tools to provide legal information and legal advice, including its online chat, telephone services and website. This means that information and advice is also available to people who live in regional, rural and remote areas, not just those who live in or near the city.

weaknesses (VLA)

The free legal information available on VLA’s website may not be enough for certain people, particularly those who are charged with an indictable offence and cannot otherwise get access to legal services in other ways.

VLA does not have unlimited resources, so it must apply criteria to ensure that its funding is used appropriately and targeted to those who need it the most. It is possible that some people who cannot afford a lawyer may also not be eligible for legal assistance and will therefore be left without representation and unable to properly defend themselves. Victims of crime also do not get assistance such as legal representation for when they give evidence.

The ability of VLA to meet demand for services depends, among other things, on continued funding. An increase in demand and/or constraints on VLA’s budget could mean that fewer people are eligible for legal aid.

The extent to which VLA is able to help people may depend on whether accused people and victims of crime are aware of its existence and/or have the technological means to access free information.

CLC

Community legal centres (CLCs) are one type of legal assistance service provider in Australia. As independent organisations they provide free legal services, including advice, information and ongoing assistance and representation, to people who may not be able to access legal services in any other way. There are two types of community legal centres:

• generalist CLCs, which provide broad legal services to people in a particular geographical area (e.g. Barwon Community Legal Service Inc. and Moonee Valley Legal Service are generalist CLCs that serve their respective local areas)

• specialist CLCs, which focus on a particular group of people or area of law (e.g. YouthLaw provides free legal services for people under the age of 25).

role of CLC

Community legal centres provide accused people with information, legal advice and ongoing assistance in a case. They also provide legal education to the community so that there is a greater awareness of rights and understanding of legal information, and they advocate for changes to the justice system to address what they see as unfair laws, policies or practices.

funding of CLC

Some CLCs receive grants from government or private sources. Many who assist at CLCs are volunteers. CLC funding is an issue in Australia, partly because of the significant demand for legal assistance. CLCs prioritise people who need legal assistance the most because of their personal circumstances. These include people who have a disability or mental health issues, refugees, people in domestic violence situations, the homeless, young people, and those who cannot afford a lawyer. CLCs also help victims of crime and their families and some offer interpreter services.

strengths (CLC)

Free legal information is available on many CLC websites. For example, The Law Handbook published by the Fitzroy Legal Service is a comprehensive resource that provides accused people and victims of crime with information about court processes.

Some legal information is provided in different languages, and some CLCs offer free interpreter services. This helps people who do not communicate in or understand English to get legal information or advice in their own language.

CLCs provide information to help educate the community about processes and their rights. The Law Handbook can be accessed at any time, and programs are often delivered by CLCs to help educate people about the justice system.

weaknesses (CLC)

CLCs have noted that there is insufficient funding to be able to help everyone who needs legal assistance, and that there is a ‘service gap’, which means some people are not receiving help.

many CLCs do not assist people charged with an indictable offence, and many are limited to assisting people charged with a summary offence or victims of crime. Victims of crime may also be unable to get assistance for all the issues they face.

CLCs may not have enough staff or volunteers to meet the needs of accused people and victims of crime. This may result in people being turned away from drop-in clinics, or in less time being given to people with complex legal issues.

plea negotiations

take place between the prosecutor and the accused about the charges against the accused. They can result in an agreement being reached between the two parties about the accused pleading guilty in exchange for some concession or agreement by the prosecutor (e.g. to withdraw some charges). Plea negotiations can take place in relation to summary and indictable offences. Other terms for plea negotiations are ‘plea bargaining’ or ‘charge negotiations’ (although some people discourage the use of the term ‘plea bargaining’, as it may suggest something ‘sinister’ or negative about the process). The agreement reached between the prosecutor and the accused following plea negotiations: the accused pleads guilty to fewer charges, with the remaining charges not proceeding, the accused pleads guilty to a charge, but an agreement is reached about the facts on which the plea is based, the accused pleads guilty to a lesser charge (a charge for an alternative offence with a lower maximum penalty). For example, a person charged with culpable driving causing death could negotiate to have this changed to dangerous driving causing death, which carries a lower maximum penalty than culpable driving, on the basis that the person pleads guilty to the lesser charge.

purpose of plea negotiations

to ensure certainty of the outcome of a criminal case. In a plea negotiation, the accused may plead guilty to the charges, thus ensuring certainty of outcome (i.e. a plea of guilt) and removing the risk of an acquittal. However, the charges must adequately reflect the accused’s wrongdoing. For example, an accused who is charged with murder may agree to plead guilty to a lesser charge of manslaughter. However, a manslaughter charge must still adequately reflect the conduct of the offender so that the community and the victims do not think that the plea negotiations have resulted in the accused being ‘let off’.

to save on costs, time and resources. If a plea negotiation results in an early guilty plea, it avoids the need for a trial or hearing and therefore saves the court and the prosecution’s resources, as well as avoids the costs and time associated with a trial (or hearing)

to achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial (or hearing). An early resolution relieves victims and witnesses of the burden and trauma of having to give evidence, and may help victims move on from what has happened

appropriateness of plea negotiations

A number of factors are considered when deciding whether plea negotiations are in the public interest and appropriate for a particular case. including: whether the accused is willing to cooperate in the investigation or prosecution of co-offenders, or offenders of other crimes, the strength of the evidence, including the strength of the prosecution’s case and of any defences, whether the accused is ready and willing to plead guilty, whether the accused is represented. The prosecution may be less willing to negotiate with a self-represented party (accused person) who may not understand the processes, whether the witnesses are reluctant or unable to give evidence, which would jeopardise the prosecution’s ability to achieve a guilty verdict, the possible adverse (negative) consequences of a full trial, including the stress and inconvenience on victims and witnesses giving evidence, the time and expense involved in a trial, particularly the costs associated with running the case, the views of the victim (the prosecutor should consult the victims and take their views into account when considering plea negotiations).

strength (plea negotiations)

Negotiations help with the prompt determination of criminal cases. This is because they avoid a full hearing or trial, and the matter can proceed to sentencing. It is possible that our criminal justice system would not be able to cope without plea negotiations.

Victims, witnesses and their families, and the accused’s family are saved the trauma, inconvenience and distress of the trial process. Sometimes the trial process makes victims and witnesses relive the crime and hear evidence that may be distressing.

The prosecutor will consult with victims and may take their views into consideration when deciding whether to negotiate with an accused.

plea negotiations provide substantial benefits to the community by saving the cost of a full trial or hearing. In particular, they save the resources of the prosecution and the court.

plea negotiations help to make sure there is certainty of outcome for the parties. Going to trial or other hearing risks the possibility of an acquittal. Therefore, a plea negotiation can help achieve a guilty plea for an offence that reflects the crime.

weaknesses (plea negotiations)

Negotiations do not need to be disclosed and can be held privately. This lack of transparency may make some people question the agreement or the reason why the prosecution decided to negotiate with the accused.

The negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, which is a fundamental principle of our justice system and upholds the presumption of innocence (some people may argue in turn that an innocent person would not enter into negotiations).

Victims do not have a ‘final say’ on whether a prosecutor negotiates with the accused (i.e. their views are not determinative on whether there will be a plea negotiation).

A self-represented party (accused person) may feel pressured into accepting a deal even if the evidence is not strong (though strong safeguards are in place when pleas are negotiated)

There may be a failure of one or both parties to engage early on in a case to try to resolve the charges. This can then result in costs and resources being taken up by a case that could have resolved much earlier.

original jurisdiction

the power of a court to hear a case for the first time

appellate jurisdiction

the power of a court to hear a case in which a decision is being reviewed or challenged on a particular ground (i.e. being appealed to a higher court).

strengths (court hierarchy)

A court hierarchy allows courts to specialise in different types of criminal matters, which allows more efficient processes or resources based on the cases they hear (e.g. there are more magistrates’ Courts and magistrates to hear the volume of summary offences).

The existence of a court hierarchy allows appeals to be made by both parties if there is an error in the original decision.

weaknesses (court hierarchy)

The many different courts can be confusing for people who do not understand the criminal justice system. This can be particularly so for people charged with an indictable offence, where the case will involve both the magistrates’ Court (for a committal proceeding) and one of the higher courts (for the trial).

The court hierarchy does not allow for an automatic right to appeal in most instances; offenders need to establish grounds for appeal. This can restrict the ability of accused people to access the appeal hierarchy, particularly self-represented people, who may struggle to formulate grounds for appeal.

cost factors

The costs associated with the criminal justice system include costs of legal representation, which can be significant for accused people and victims of crime if they seek legal representation.

• While everyone has a right to legal representation, not everyone can afford it. This can disadvantage accused people in particular, as they lack the necessary skills, experience and objectivity to navigate the system without a lawyer.

• Legal services can be provided through legal service providers such as VLA and CLCs, as well as pro bono institutions. However, they are stretched in the number of people they can assist.

• As a result, the courts are seeing growing numbers of self-represented people. This can create pressures on the courts and can also result in delays.

• Some measures are in place to try to reduce the costs, such as committal proceedings and plea negotiations. Committal proceedings may be seen to be a limited measure to address costs if most accused people are committed to stand trial. They do, however, provide an opportunity for plea negotiations and for the accused to plead guilty.

time factors

• An accused has the right to be tried without unreasonable delay, and where possible delays should be avoided for the benefit of everyone, including victims and the accused.

• However, there are court delays associated with the complexities of the case, and delays associated with the CoVID-19 pandemic which resulted in adjournment of some trials.

• plea negotiations aim to address delays by achieving an early guilty plea and avoid the need for trial.

• Temporary judge-alone trials also sought to address the issue of delays.

• Improved technology and increasing use of virtual hearings may also help alleviate the pressure.

cultural differences

• Different cultural groups, such as people whose first language is not English and First Nations

people, can find the criminal justice system confronting and difficult to navigate. Cultural

differences can include cultural misunderstandings, a lack of knowledge of the legal system,

and a lack of understanding of the English language.

• Cultural differences between First Nations people and non-Indigenous people are not always well understood by people in the court system and can create challenges in the courtroom for some First Nations people, including in regard to body language and direct questioning.

• First Nations people are overrepresented in the criminal justice system, being more likely to be imprisoned than non-Indigenous people. First Nations people are also increasingly vulnerable when engaging with the criminal justice system.

• Language barriers can also be difficult for people who do not have English as their first language. While everyone has the right to an interpreter, it is not always the case that one is available.

• The Koori Court seeks to address the cultural differences faced by First Nations offenders. However, it is limited in that it is a sentencing court only.

• Information is also provided by VLA and some CLCs in different languages.

what are sanctions

is a penalty imposed on a person by the courts because of guilt for a criminal offence

fines

A fine is an amount of money ordered by the court to be paid by the offender to the state of Victoria. A fine can be imposed as the only sanction, or it can be imposed with any other sanction. It can also be imposed with or without a conviction

the amount of a fine is determined by how much of a burden it will be, any orders have been made in relation to taking an offenders property, any loss or destruction of property, value of any benefit to the offender.

if a fine cannot be paid because of circumstances the fine can be converted into (for example) unpaid community work. reasons for this; cannot pay, under 100 penalty points. if offender refuses payment steps may be enforced; undertake community work, a warrant to seize property, imprisonment (1 day per penalty unit unpaid)

purpose of fines (punishment)

financial circumstances of offenders ability to pay are considered (amount needs to be high enough to act as punishment, but not so high it is never paid). the amount of the fine must be high enough it causes a burden. if the offender if a person or company, the people who are responsible for company may not suffer impact unless there is an order they are liable to pay it. whether the fine is paid or enforced, meaning an unpaid fine thats not enforced will not act as a punishment.

purpose of fines (specific determent)

The financial circumstances of an offender and their ability to pay. As with punishment, the amount of a fine needs to be high enough to have an impact on the offender and therefore deter them from committing further crimes, having regard to the person’s characteristics and the nature of the offending. For example, if a fine is low and the offender has sufficient financial resources to pay the fine, it may not deter the offender.

• The amount of the fine. Generally, the fine must be high enough to impose a burden on the offender, although a smaller fine could be appropriate depending on the offender’s social and financial circumstances and the type of the offence.

• Whether the offender is a person or a company. Where a company is fined, the people who are responsible for the company’s offending may not be deterred as it is not them who has to pay.

• Whether the fine is paid and/or enforced. An unpaid fine that is not enforced may not act as a specific deterrent, as it has no ultimate impact on the offender’s financial circumstances.

purpose of fines (general deterence)

The amount of the fine and the circumstances of people in the community. While a smaller fine may not deter some members of the community, a larger fine is more likely to act as a general deterrent, although this will depend on each individual’s personal circumstances.

• Whether the fine is enforced. Other members of the community may be less likely to be deterred if they know there will be no repercussions if they do not pay the fine.

• The extent to which the sentence is known to the community. As fines are easily understood, members of the community will appreciate the personal impact of receiving a fine, which will vary depending on their circumstances and whether they are aware of the fine being imposed. The use of media and online sites may help to generate attention to the sanction imposed. For example, WorkSafe’s publication of sanctions imposed for workplace safety offences could become known to companies in the same industry and therefore increase awareness of the types of fines that could be imposed.

purpose of fines (denounce)

The nature of the offence and the fine imposed. A larger fine (e.g. a level 2 fine) may send a stronger message of disapproval than a smaller fine (e.g. a level 12 fine). A smaller fine (e.g. a level 12 fine) may not be sufficient enough to send a strong message to the community.

• Whether the fine is enforced. The strong message of disapproval that may be expressed when imposing the fine could be weakened if the fine is not enforced. A fine that is imposed and then enforced may send a stronger message that the behaviour is unacceptable.

community correction order

a flexible, non-custodial sanction (one that does not involve a prison sentence) that the offender serves in the community, with conditions attached to the order

purpose of CCO (rehabilitation)

Conditions imposed. Treatment conditions in particular can focus on the rehabilitation aspect of a CCO, including drug and alcohol treatment and any other programs that seek to address underlying causes of behaviour.

• Active participation. Whether the offender is rehabilitated may depend on whether they actively participate in the rehabilitation programs and are willing to continue that treatment, or continue to address their behaviour, when the CCO comes to an end.

• Offender circumstances, such as support from family and friends. Factors beyond treatment, such as an offender’s ability to remain employed and the support they get from family and friends, are vital to the achievement of rehabilitation. These supports can help the offender treat underlying causes of behaviour.

purpose of CCO (denunciatoin)

• The length of the CCO. A longer CCO is likely to send a stronger message that this type of behaviour is not acceptable than a shorter CCO.

• The conditions imposed. A strong message of disapproval may be sent if harsh conditions are imposed, such as curfews, monitoring, or even exclusion conditions. Other conditions, such as a single condition requiring community work, may not send as strong a message.

purpose of CCO (specific deterrence)

The length of the CCO. The duration of the CCO can have an impact on whether it deters the offender. A shorter CCO may be less likely to have a deterrent effect than a longer CCO.

• The mandatory conditions imposed. Many of the mandatory conditions, particularly the requirement not to commit another offence punishable by imprisonment, can act as a specific deterrent on an offender as they can be resentenced if they breach such a condition. This can itself have a powerful impact on whether the offender offends again, even though the conditions do not extend beyond the length of the CCO.

• The nature of the additional conditions imposed. If the conditions imposed seek to minimise the risk of the offender reoffending, then specific deterrence could be achieved. For example, exclusions or curfews can help change the offender’s behaviours and help reduce the risk of reoffending.

purpose of CCO (general deterrence)

The nature of the CCO. A CCO that is overly restrictive on an offender is more likely to deter the community as it will be seen to be punishing or to be an unwelcome sanction. This depends on the nature and length of the CCO. Significant hours of community work and electronic monitoring, for example, may be seen to be harsh conditions that impact on a person’s freedom.

• Whether the CCO is communicated to the public. Whether a CCO can deter the community depends on whether the public know about it. It may also depend on the extent to which the communication of the CCO clearly demonstrates how harsh the CCO is, or how punishing or impacting it is on the offender. The public may see this as a lesser sanction to imprisonment, so it may not be as effective as imprisonment in deterring the public.

imprisonment

a sanction that involves removing the offender from society for a stated period of time and placing them in prison

purpose of imprisonment (punishment)

• The length of the imprisonment term. A longer prison term acts as a greater restriction on freedom and therefore may act as a greater punishment. However, this depends on the offender. Even a short period of time in prison can be punishing given the removal of liberty.

• The offender’s circumstances. Whether imprisonment acts as a punishment may depend on the circumstances of the offender. For example, the courts have recognised that a mentally disabled offender, who cannot understand the impact of a term in prison, may not appreciate the punitive nature of the sentence and therefore punishment may not be achieved.

purpose of imprisonment (protection)

• The length of the sentence: society will be protected while the offender is in custody. Longer

sentences mean a greater time during which the offender cannot harm the community.

Sentences such as indefinite sentences protect the community from particular offenders

if they are considered to still be a danger to the community. Shorter sentences are less of

a protection.

• Circumstances of the offender: these are relevant to determining whether society needs

to be, and can be, protected from the offender. If the offender is reluctant to be treated and has many prior convictions, then it is possible that they may harm again once they are released.

• Whether the offender is treated: The community benefits if the offender participates in rehabilitation programs and is treated, as once they are released, the ideal is that they will no longer commit further crimes. This depends on the rehabilitation opportunities and the willingness of the offender to address the reasons for offending. It also depends on other factors, such as whether the offender has a drug addiction and whether drugs are available to the prisoners (in the past, some prisoners targeted for a drug test returned a positive result).

purpose of imprisonment (rehabilitation)

Whether the offender is willing to participate: voluntary participation is required. An individual who is forced to participate may not be willing to address underlying causes of behaviour, but rehabilitation may be achieved if a person voluntarily participates.

• The offender’s prospects of rehabilitation: the court will generally make comments, as part of sentencing, about the offender’s prospects of rehabilitation. Factors such as remorse and a person’s criminal record can give indications of an offender’s prospects. Lower prospects of rehabilitation might suggest that the offender may be less likely to be rehabilitated, but it may still be possible.

• Whether the offender has any addictions: whether the offender is prepared to face their addictions may be relevant to rehabilitation. For example, if the offender does not address an addiction to drug and alcohol, their prospects of rehabilitation may be lower.