Legal Studies AOS1 PART 2

Judges & magistrates

Role

• criminal case not resolved before final hearing & accused continues to plead not guilty, their guilt is determined by a court

• magistrate: accused charged w/ summary offense

• nudge: indictable offense

1. act impartially (FAIRNESS)

• must be unbiases

• no apprehended bias

• public confidence

e.g when a party to the case is known, the should remove → to not favors, disadvantage anyone based characteristics (age gender, identity, religion)

2. manage the trial (judge) or hearing (hearing) (EQUALITY, FAIRNESS, ACCESS)

• correct court procedure → e.g witnesses, order of events

• question a witness, recall one

• make decisions about evidence → e.g if it is permitted

• make adjustments to overcome disparity → e.g alternate arrangements for witnesses, translator, breaks, requiring for legal practitioners to sit down

3. decide(magistrate) or oversee(judge) the outcome of the case (EQUALITY)

• magistrate

- has the role of deciding guilt

- no jury for summary offences

- listening to cases by both parties

- decides based on facts & the law if the accused is guilty beyond reasonable doubt

- if guilty, sentenced at later date → if not guilty, end of matter

• judge - supreme/county court

- jury decides guilt - not judge

- ensures jury understands their role

- sums up the case for jury

- once trials over → summarize case to jury

- explain law, identifies evidence & defines legal terms or principles

- refer to how parties have put their cases

- directs jury to ensure fair trial

includes:

- telling jury accused doesn’t have to give evidence

- jury shouldn’t assume their accused guilty because they didn’t choose to give evidence

4. sentence an offender

• if accused found guilty, OR accused pleads guilty → case will be ‘set down’ for a plea hearing & parties will make submission about sentencing

• following hearing → judge/magistrate hands down sentence same day or at a later date

• must follow sentencing guidelines in sentencing act 1991 (vic) & comply w/ legislation about sentence

• in sentencing an offender (EQUALITY, FAIRNESS)

- judge/magistrate hear from both parties

- hears victim impact statements → ensures fairness, lets parties give views
- if this doesn’t happen → grounds for appeal

strengths and weaknesses of judges and magistrates

strength (EQUALITY)

• judge & magistrates acts as an impartial umpire → oversees trial process

• does not overly interfere in trial or help either party argue the case

• no party is disadvantaged

Weakness

• judge and magistrates are human

• can be at risk of apprehended bias that impacts decision making

Strength (EQUALITY)

• manages hearings processes, ensuring rules of evidence is followed

• both parties can present case

Weakness (ACCESS, FAIRNESS)

• pervious research suggests lack of diversity

• women underrepresented in higher courts

• impacts extent to which accused people feel comfortable & people in general feel confident in the administration of justice

Strength (ACCESS, FAIRNESS)

• able to assist self-represented people

• can adjust trial process to accommodate vulnerable people → e.g young people, disability, mental health conditions

Weakness (ACCESS)

• cannot overly interfere w/ case → including self-represented people

• even though they’re the most experienced person in the room

What does the jury do

trial by peers

accused has a right to trial by jury IF pleads not guilty to indictable offense

criminal jury has 12 jurors - chosen randomly on electoral role

• Roles:

- be objective, factual, independent & unbiased (if not, excused during empanelment)

- listen to & remember evidence, listen (be alert, take notes, track evidence), following judges directions

- understanding directions and summoning up, listen actively, follow judges directions

- deliver a verdict, deliberate, reach unanimous verdict in most cases (majority verdict in some case - made on facts of case & the law) beyond reasonable doubt

Strengths and weaknesses of the jury

Strength (EQUALITY)

• jury members randomly chosen - no connection to the parties

• make decision mased on facts, not on biases or own enquiries

Weakness (FAIRNESS)

• jury members may have unconscious biases or prejudices

• don’t need to give reasons for decisions = no way of knowing if bias pays role in decision-making

Strength (FAIRNESS)

• jury system allows for members to participate in Criminal justice system

• process ensures justice is ‘seen to be done’

Weakness (ACCESS)

• criminal trials can be complex (directions given to jury & evidence given in trial)

• not clear is 12 laypersons in jury will be able to understand legal principles involved & evidence given to make decision based on facts

Strength (FAIRNESS)

• collective decision making reduces possibility of bias → any personal, subconscious biases can be identified during deliberation process and addressed by group

Weakness (FAIRNESS, ACCESS)

• jury trials may result in further delays

• rules, evidence, and processes need to be explained to jury

• jury may require time to deliberate

strength (FAIRNESS)

• represent cross-section of community

• diverse group of people, leads to decision reflecting views and value of current society

weakness (EQUALITY, ACCESS)

• number of people cant participate because they’re ineligible, excused or disqualified

• is possible for large section of community to not be represented

Role of prosecution

• disclose info to the accused (FAIRNESS)

- all relevant matters to inform accused of case

- e.g witness names and statements

• participate in trial / hearing (EQUALITY)

- opening address to outline case: issues and evidence, present evidence (examination-in-chief)

- e.g lay (account of what happened) & expert witness (different parts of evidence, blood splatter for example)

- cross-examine any any witness for accused (test their evidence)

- closing address for both parties

• make submissions about sentencing (FAIRNESS, EQUALITY)

- outline relevant laws

- inform of any aspects of off offence or offender

- laws that are relevant to sentencing both parties

role of accused

• participate in trial / hearing (EQUALITY)

- opening address to outline case: issues and evidence, present evidence (examination-in-chief)

- e.g lay (account of what happened) & expert witness (different parts of evidence, blood splatter for example)

- cross-examine any any witness for accused (test their evidence)

- closing address for both parties

• make submissions about sentencing (FAIRNESS, EQUALITY)

- outline relevant laws

- inform of any aspects of off offence or offender

- laws that are relevant to sentencing both parties

Strength & weaknesses of the parties

strength (FAIRNESS)

- prosecutor is obligated to disclose all relevant info to accused

- accused cant change witnesses w/o notice to accused

- ensures ‘no trial by ambush’ → another party can’t challenge evidence cause they weren’t notified

weakness (ACCESS)

- Victorian law reform commission (VLRC) noted early & adequate disclosure is an issue in Victoria

- e.g sometimes police wait to see defenses requests instead of providing disclosure upfront

Strength (EQUALITY)

- both parties can present cases (opening and closing address, opportunity to examine and cross examine witnesses)

Weakness (FAIRNESS)

- processes are complex & difficult to understand if without lawyer, difficult fpr self-represented accused people

Weakness (ACCESS)

- right to silence → truth doesn’t come out

- e.g accused doesn’t say or do anything in situation were only they know what happened, may feel unjust for victims & their family

- they should be able to access justice system even when exercising right to silence

Legal practitioner

• accused should engage legal practitioners to assist them in navigating unique processes of criminal justice system - achieves access

• helps them understand particular legal terminology and legal principles - achieves fairness

• high court found that legal representation is generally necessary for accused charged with serious indictable offence - promotes fairness

• courts have power to adjourn a trial for serious offences until legal representation from VLA has been provided - upholds equality

needed in criminal cases because self-represented parties:

- lack necessary skills and experience

e.g legal procedure, elements of law

- can traumatize victims if directly questioning them

e.g family violence/sexual violence

- do not have the required objectivity

e.g lawyer could know how to be objective

- cannot receive advocacy help from courts & judges

e.g doesn’t have anyone to advocate on behalf → may not put the best case forward

strength & weaknesses of legal practitoners

strength (ACCESS, FAIRNESS)

- experts who can help accused navigate legal system

- e.g asserting & conducting opening and closing addresses (rules about what you can and cant say)

weaknesses (FAIRNESS

- not all legal practitioners have some legal of experience & skills

- may impact quality of legal services

strength (EQUALITY)

- have objectivity when making decisions

- e.g if to accept agreement in a plea negotiation, self-represented accused don’t have objectivity

weakness (FAIRNESS)

- not everyone can afford legal representation

- self represented individuals DO NOT have objectivity & necessary skills to make right decisions → risks an unfair trial

strength (FAIRNESS, ACCESS)

- help avoid delays that would arise if accused was self represented → process should allow accused to understand what is happening

costs

main cost in case is getting a lawyer to provide legal services

e.g legal advice representation

• impact

accused: needs legal rep to navigate criminal justice system

victims: may require legal assistance to assert their rights, contact investigative & prosecution agencies AND understand procedures (giving evidence) → upholds fairness

• measures in place to address costs

VLA → free legal services from CLC, increased demand means large portion of community is not eligible

committal proceedings → ‘filter out’ weak cases, increased demand means large portion of community is not eligible

plea negotiations → residue criminal cases without having go to court

time

• court delays

more complicated the case is = longer to get ready for trial

many see delays as a result of the nature of our justice system
relies on prosecution gathering evidence

over-reliance on hard cot documents & need for community proceedings

covid-19 pandemic resulted in back log of cases → upholds access

• measures to address delays

- plea negotiations

early guilty plea = case determined quickly and save time (costs, stress, inconvenience

trial can take months, years - unfair

• during covid:

Victorian parliament made temporary legislation for judge to be in ‘alone trials’ → allows indictable offences to be heard by a trial judge alone OF accused consented, obtained legal advice & court considered it in the interest of justice

digital tech allowed for more emote hearings to address delays → allowing people to appear by video link (upholds access)

cultural differences

difficulties by first-nations people

• already used to their own laws/customs handed down

language barriers

• differences in language → kill meaning hit, not ending of life , story means truth (not made up)

Direct questioning

• some first-nations people used to question and answer method of obtaining evidence

• see directness as impolite, whereas group discussions w/ stories are considered polite

body language

• direct eye contact equals disrespectful → audience may make them seem unbelievable & uninterested

cultural taboos

• may be taboo to speak of deceased people, gender-based knowledge in front of people of office gender

• transitional laws cause difficulty in understanding offence they’ve been charged with

lack of understanding of court proceedings

• may not understand why they have to say something over again → would be to the examination-in-chief & cross examination

• may think their story has to change to appease authorities

English being a second language

• if accused can understand court documents, processes & language used in cases

• Victims and witnesses may not understand illegal rights meaning they can't exercise them properly

• different agencies ( authorized entity that initiates legal action against a person or company) may be hard to understand even for those with English as a first language

measures in place to address cultural differences

koori court

• Division of Magistrates Court and county court

• sentence in court (not used to determine guilt)

aim: Respect First Nations culture, encourage participation of accused, improve overall outcomes

sentencing process:

• Informal

• conducted in culturally appropriate way

• gives opportunity for people to tell their story with support of elders and family

• e.g oval table used, encourages open discussion

sanctions and their purpose

Rehabilitation

• Design to address underlying causes of offending and threat offender based on causes

• Aims to help offender change attitude and behavior with goal of preventing them from reoffending

• offender must show remorse, community corrections order (CCO) encourages rehabilitation, there are some rehabilitation programs in prison

punishment

• design to penalise offender and show society an victim criminal behaviour will not be tolerated

• Usually the purpose of sanctions in serious and violent cases

• e.g involving death of another person, serious injury culpable/dangerous driving or sex offences

• punishment must be proportionate to offence committed

 

deterrence

• design to discourage offender an others from committing similar offences

General deterrence

• discourages others in community from committing similar offences

• important for violent/serious crimes

specific deterrents

• discourage offender from committing other offences

• priority for court if offender has committed crimes before

Denunciation

• designed to demonstrate communities disapproval of offenders actions

• Sanctions may be given to show community that court and society disapproves and condemns the offenders conduct

Protection

• protection is designed to safeguard community from offender by preventing them from committing further offences

• achieved by removing offender from community (putting them in prison) or by conditions attached to a CCO

• particularly relevant where offender refuses to participate in treatment or rehabilitation program or shows no signs of remorse or having significant criminal history

recidivism: tendency over Fender to reoffend

fines

• Amount of money ordered by court to be paid by offended to the state(Victoria(

• amount of find determined by maximum penalty that can be imposed for offence

• fine levels: 2 being the highest with max 3000 penalty units, and 12 being the lowest with 1 penalty unit

Determining amount of fine

• under sentencing act court must consider:

• financial circumstances of offender (amount of fine, not if the fine should be imposed)

• if there are orders for the offender to pay compensation or  make amends (e.g taking property)

• order requiring offender to pay compensation or restore property to victim, should be given a preference

• Any loss or destruction/damage to property suffered by a person

• value of any benefit to offender as a result of offence