Legal Studies UNIT 3 AOS 1

Summary offences

• Minor offence generally heard in the Magistrates’ Court

• E.g. Minor assaults

Indictable offences

• Serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria

• E.g. Drug trafficking

Indictable offence heard summarily

• Serious offence (penalty of 10 years or less) that is dealt with as a summary offence if the court and the accused agrees

• Why? 

  • Jury may be against them 

  • Quicker 

  • Smaller penalty

  • Cheaper

Burden of proof

• Lies within the plaintiff

• Must present evidence to establish that the defendant was in the wrong

Standard of proof

• Extent to which a case must be proven

• Prosecution must prove beyond reasonable doubt

Presumption of Innocence

Right for all accused persons to be presumed innocent until it is proven, beyond reasonable doubt, that they are guilty.

Accused Rights

Right to be tried without unreasonable delay

Right to silence

Right to trial by jury

Right to be tried without unreasonable delay

• Accused is entitled to have their charges heard in a timely manner

• Any delay should be reasonable.

• Whether a delay is reasonable will depend on the facts of the case and surrounding circumstances

• Main Source: Human Rights Charter

Right to silence

• Accused has the right to remain silent when questioned or when asked to give information in the investigation

• Has the right to stay silent in a criminal proceeding and not be required to give evidence or call a particular witness.

• General rule, the exercise of the right cannot be used against them

• Main Source: Common law and statute law (including the Evidence Act)

Right to trial by jury

• A person charged with an indictable offence is entitled to be tried by their peers

• The jury will be made up of 12 members of the community

• The right does not extend to people charged with summary offences

• Main Source: Juries Act (for state indictable offences) and Section 80 of the Australian Constitution (for Commonwealth indictable offences)

Exceptions to the accused rights

• No right to be tried without reasonable delay: There is new evidence and tracking down witnesses

• No right to silence: 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 or a cohesive questioning order is made where the person must answer the questions provided regarding organised crime

• No right by trial by jury: You plead guilty (sentencing) or you have committed a summary offence (Magistrates’ Court)

Victim Rights

The right to give evidence using alternative arrangements

The right to be informed about the proceedings

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

The right to give evidence using alternative arrangements

Victims who are witnesses in some cases, such as sexual offence and family violence cases, are able to give evidence using alternative arrangements. 

Those arrangements include:

• giving evidence used closed-circuit television or other like facilities 

• use of a screen between the accused and the witness 

• use of a support person for the witness 

• only allowing certain people to be in the court while the witness is giving evidence 

• requiring legal practitioners not to be formally dressed in robes 

• requiring legal practitioners to be seated while asking the witness questions.

• Main Source: Criminal Procedure Act

The right to be informed about the proceedings

• Victims are entitled to be informed at reasonable intervals about the progress of an investigation into a criminal case (unless they do not want that information, or that information may jeopardise the investigation) 

• Once a prosecution has commenced, victims should be informed about the charges, hearing dates and times, outcomes, sentences and details of any appeal

• Main Source: Victim’s Source

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

• If a person is a victim of a criminal act of violence and is on the Victims Register, they may receive information about the likely release date of the imprisoned offender

• Main Source: Victims’ Charter and the Corrections Act

Principles of Justice

Fairness

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

Equality

People should be treated in the same way, but 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

Access

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

Formal equality

When all people are treated the same and given the same levels of support, regardless of their personal differences or characteristics (E.g. race, religion, gender identity or age)

Substantive equality

When sometimes the ‘one size fits all approach’ does not work, and special measures are needed so that people do not suffer disadvantage simply because of who they are

VLA

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.

Types of assistance for accused: Information  Duty lawyer (Pass income test, social welfare) Free legal representation (Indictable matters + Pass means test) If you have properties, they may tell you to get a loan etc.

Types of assistance for victims: Navigating the criminal justice system (understanding their rights) Acquiring intervention orders

Strengths of VLA

• Free information provided by VLA on website which can accessed by everyone

• Free legal representation and assistance for those who need it as they cannot afford it 

Weaknesses of VLA

• Information provided is generic and does not apply to all

• 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

• 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

General CLCs

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)

Special CLCs

Focuses on a particular group of people or area of law 

(E.g. Youth Law provides free legal services for people under the age of 25)

Role of CLCs

• Free legal service (Advice + Information + Representation)

• Provide legal education to the community 

• Advocate change to the justice system 

• Works with VLA

Strengths of CLCs

• Provides free legal information on their website 

• Legal information is provided in multiple languages and some provide free interpreters

Weaknesses of CLCs

• Insufficient funding from the government = Limited resources compared to VLA 

• Does not assist people with indictable matters

Plea Negotiation

Plea negotiations are pre-trial discussions between the prosecution and the accused which aim to resolve the case by agreeing to the outcome to the criminal charges.

Purposes: 

• To ensure the certainty of the outcome of a criminal case

• To save the court and prosecution’s costs, time, and resources by avoiding the need for a trial or hearing.

• To achieve a prompt resolution to a criminal case without victims enduring the stress, trauma and inconvenience of a criminal trial.

• Appropriateness: 

  • Accused is willing to cooperate in the investigation or prosecution of co-offenders or offenders of other crimes

  • Strength of the evidence including the strength of the prosecution's case and of any defences

  • Accused is ready and willing to plead guilty

  • Accused is self-represented

  • Witnesses are reluctant or unable to give evidence

  • Negative consequences of a full trial, including the stress and inconvenience on victims and witnesses

  • The views of the victim

Strengths and Weaknesses of Plea Negotiations

Strengths:

• Saves costs/legal fees

• Saves trauma from the people involved

Weaknesses:

• Courts are not involved 

• Standard of proof may not be satisfied

Plea Negotiations Achieving the Principle of Fairness (6/7 mark response)

• Plea negotiations allow an accused to be involved in negotiating the charges and outcome of their case. Given this involves active communication, the accused is able to participate in reaching an agreement. They are not a passive bystander in the resolution of their case therefore promoting the principle of fairness. 

• However, plea negotiations are generally conducted outside of the public eye, and behind closed doors. This lack of transparency has been criticised in the past in that the public often are not aware of the reasons why a plea negotiation was entered into. The public, and particularly victims, will feel that justice was not seen to be done. 

• One strength of plea negotiations is that they also provide some opportunity for victims to participate. The DPP’s policy in particular is to consult with the victims as part of the process. Therefore, the victims will be able to have a say as to the outcome of negotiations, thus ensuring some participation. 

• However, victim participation is limited. They are not parties to a criminal case so will not be directly involved, and they do not have a say as to the outcome or whether an agreement is reached. This may make victims feel disempowered, particularly if they do not understand the basis upon which an agreement was reached.

Specialisation

The ability for courts to allow experienced knowledge in a particular field of law

Appeal

One party (usually the accused) wants their case reheard upon a higher court due to them believing an injustice occurred (E.g. error in law)

Victorian Hierarchy of Courts

Judges

Judicial officer who oversees court proceedings, ensures a fair trial, rules on legal issues, and decides the outcome or sanction.

Magistrates

Judicial officer who hears and determines cases in the Magistrates' Court, including minor criminal offences, civil disputes, and committal proceedings.

Strengths of Judges and Magistrates

• Judge or magistrate acts as an impartial umpire. They oversee the trial process, but they do not overly interfere in a trial or help either party argue their case. This means no party is advantaged or disadvantaged because the judge or magistrate ‘takes sides’

• Judges and magistrates manage the hearing processes, ensuring that rules of evidence and procedure are followed, and both parties have an opportunity to present their case

• Judges and magistrates are able to assist self-represented accused people and can adjust the trial process to accommodate more vulnerable people, such as young people, people with a disability, or people with a mental health condition

Weaknesses of Judges and Magistrates

• Judges and magistrates are human, and there can be risks that they have actual or apprehended bias that impacts their decision-making, such as when they are fatigued

• Previous research suggests there is a lack of diversity in Australian judges and magistrates. In Victoria in 2015, four judicial officers were Asian Australians. Women were also underrepresented in higher courts. Some people believe this can impact on the extent to which accused people feel comfortable in the courtroom and/or the extent to which people feel confident in the administration of justice

• Judges and magistrates cannot overly interfere in a case, including those involving a self-represented accused person, even though they are one of the most experienced in the room

Difference (Distinguish) Judges and Magistrates

Magistrates must reach a verdict and past sentence (Judge + Jury) where they oversee a hearing, while judges only pass sentences and oversee trials.

Jury

An independent group of people chosen at random to determine questions of fact in a trial and reach a decision (i.e. a verdict)

Strengths of Jury

• Jury members are randomly picked, have no connection to the parties, and make a decision based on facts, not on biases or on their own inquiries.

• Jury system allows members of the jury to participate in the criminal justice system processes and ensures that justice is ‘seen to be done’

• 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

Weaknesses of Jury

• Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether bias played a role in their decision-making

• Criminal trials can be complex, including directions given to the jury and the evidence given at trial. It is not clear whether 12 laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts.

• Jury trials may result in further delays as rules, evidence and processes need to be explained to the jury, and a jury may require some time to deliberate

Costs

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

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.

Sanctions Purposes

Punishment

Law must punish offenders so that victims or their families seek retribution without taking the law into their own hands.

Protection

Imprisonment is the last resort

Long prison times are given by courts as they are deemed a danger to society

Nature of crime + Lack of remorse + Offenders attitude

Denunciation

Sentencing is used by the court to show the disapproval of the offence

Giving the message to society that this type of criminal behaviour will not be tolerated

Deterrence

General Deterrent - Discourage people in general from committing the crime

Specific Deterrent - Aimed to stop particular offenders from repeating the offence

Recidivist - Person who continues to commit crimes despite being punished

Rehabilitation

Helps change offenders ways by providing improved opportunities

Aims for offenders will have a chance of a better future and become a law-abiding citizen

Fines

Monetary payment the court will order an offender to make to the state, as a penalty for a criminal offence.

Purposes:

• Punishes the offender 

• Denounces the offence as wrong 

• Deters them from committing the same offence again

Community corrections orders

Non-custodial sanction that is served by the offender in the community with certain conditions attached.

Purposes:

• Punishes the offender 

• Denounces the offence as wrong 

• Deters them from committing the same offence again

Imprisonments

Sanction that removes an offender from the community and places them in prison for a given period of time. (Most severe sanction available)

Purposes:

• Punishes the offender 

• Protects the community 

• Denounces the offence as wrong 

• Deters them from committing the same offence again

Mitigating Factors

Details about the offence and the offender that tend to increase the offender's culpability and the sentence they receive. (E.g. Duress, pleading guilty)

E.g. Guilty Pleas

Aggravating Factors

Details about the offence and the offender that tend to increase the offender's culpability and the sentence they receive.

E.g. Victim Impact Statements