VCE Legal Studies Unit 1

AOS 1, 2 & 3

Social cohesion

The willingness of members of a society to cooperate with eachother in order to survive and prosper

Role of laws

• Define and regulate acceptable behaviour

• What we can and can’t do

• Provide consequences

Role of individuals

• Respect eachothers rights

• follow all laws

• be aware of laws

Role of legal system

• Parliament: changes/makes laws

• Government: administrates laws

• Courts: enforces laws

Fairness

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

Equality

All people engaging with the justice system and its processes should be treated in the same way regardless of their characteristics. If same treatment creates disparity or disadvantage, adequate measured should be implemented to ensure people are treated equitably.

Access

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

The characteristics of an effective law

• Reflects society’s values

• Is enforceable

• Is known

• Is clear and understood

• Is stable

Role of parliament

To create or change laws

House of reps

• Lower house (151 members)

• Form government

• Introduce and pass bills

Senate

• Lower house (76 members, 12 each state, 2 each territory)

• Review (scrutinise and debate) bills from HOR

Governor-general

• Kings representative (federal)

• Provides royal assent

Statute law

Laws made by parliament

• Can override laws made by other bodies

Common law

Legal principle created by courts to resolve new issues which will be followed in future cases

Role of the courts

to resolve cases by applying and interpreting the law

Reasons for the VCH

• Specialisation

• Administrative convenience

• Appeals

• Doctrine of precedent

VCH: Specialisation

the process of a court developing expertise in an area of law

• become familiar with similar cases

• quicker and efficient at determining outcome - save time

VCH: Administrative convenience

the ability of courts to distribute resources effectively

• organising disputes according to seriousness to save time

VCH: Appeals

the legal process a dissatisfied party may pursure to have a couers decision reviewed by a higher court

• allows wrong and unjust decisions to be corrected by a superior court (fairness)

VCH: Doctrine of Precedent

Legal mechanism by which past decision in higher cours must be followed by lower courts when a similar case arises

• enables consistency in law

• achieves fairness when applying law in a similar fashion

Precedent

establishing legal principles for cases of the first of its kind (the reason given for the decision)

Binding precedent

must be followed by lower courts within the hierarchy (set by higher courts_

Persuasive precedent

precedent that can be chosen to follow (set by lower court)

Relationship between parliament and courts

• statutory interpretation

• codification of common law

• abrogation of common law

• judicial influence

statutory interpretation

a interprets laws written by parliament

codification

incorporating precedent and putting it into a statute to create legislation

abrogation

the parliaments ability to change or override common laws

criminal law

the laws that establish and deal with offensive and harmful behaviour and providing sanctions for these offences

BOP

• prosecution must prove guilt

• sufficient, viable, reliable evidence

SOP

BRD - evidence presented is so strong and convincinf that there is no other possible explanation for the events in question (no doubt in jurors mind)

what is a crime

an act or omission that is against an existing law, harmful to an indiviual or society and is punishable by law

what is a crime: against an existing law

Undertaking or failing to undertake an action that is against a current law

What is a crime: Harmful to an individual or to society

A crime that has negatively impacted the victim and/or community

• individual: physical, financal, psychological impacts

• community: Compromised safety, increases need for resources (eg. police, hospitals)

What is a crime: Punishable by law

a person who is guilty of a crime can have a sanction imposed on them

Purposes of criminal law

• protect individuals

• Protect property

• protect society

• promote justice

How does criminal law protect individuals?

• Establishes crimes and processes to deal with people who commit these crimes by providing sanctions

How does criminal law protect society?

Sets standards for acceptable behaviour in communities and by the legal system — maintains public order and community safety

How does criminal law promote justice?

Provides proceses to deal with offenders and to enforce the law

How is the POI protected?

• BOP + SOP

• right to legal representation

• right to silence

• right to appeal

elements of a crime

• mens rea

• actus reus

strict liability crime

responsibility for committing a crime can be established without having to prove mens rea

Evaluating AOCR in VIC

• (+) doesnt address causal effects of youth offending

• (+) holds them accountable rather than compromising public safety

• (-) criminalizes young children, increasing chances of reoffending

• (-) human right to have it at 14

Social purpose (nature of offence)

categorization of crimes according to a wrongful action against:

• person

• property

• wellbeing of society

indictable offence

serious crimes

• heard in country and supreme court

• before judge and jury

• complex and time consuming

summary offence

minor offences

• heard in magistrates

• before a magistrate, no jury

• less complex, quick process

indictable offences heard summarily

indictable offence dealt w summarily

• must be approved by court and accused

• must not be punishable by 10+ years

• must not be a fine greater than 1200 units

why may an indictable offence be heard summarily

• hearing is quicker and cheaper

• accused can recieve lesser punishment

principal offender

a person who has carried out the actus reus and has directly committed an offence

• anyone involved can be one

a person is involved if they

• intentionally assist, encourage, or direct another person to commit a crime (+knowing it is highly likely that another crime will be the result)

• make an agreement with another person to commit a crime together (+knowing it is highly likely that another crime will be the result)

accessory

a person who knowingly assists another person who has committed a serious indictable offence to avoid being convicted

elements of murder

mens rea:

• the killing was unlawful

• acting with the intent to kill or cause serious harm

actus reus:

• voluntary actions

• the act committed caused the death

elements of murder: the killing was unlawful

the accused cannot be found guilty of murder if there was legal justification for their actions

elements of murder: acting w/ the intent

• intentional: the accused had the intention to kill

• reckless: the accused knew that harm or death was probable as a result of their actions

elements of murder: voluntary actions

the accused must be conscious and in control of their bodily actions to be found guilty

elements of murder: the act caused death

the accuseds acts were a substantial or significant cause of the victims death

• direct and unbroken causal link

• victim must be dead

murder defences

• self-defence

• mental impairment

• duress

• sudden or extraordinary emergency

defences: self-defence

• accused believed their actions were necessary to protect themselves

• actions were a reasonable response to the situation

defences: mental impairment

• accused didnt understand the nature and quality of their actions

• didnt know their actions were wrong or could not think about their actions like an ordinary person

defences: duress

• accused believed threat of ham existed

• the threat would have been carried out unless the offence was committed

• committing the offence was the only reasonable way to avoid the threatened harm

defences: sudden or extraordinary emergency

• there was an emergency involving risks of death and serious injyrt

• the actions were the only reaosnable way of dealing with the situation

Murder: possible sanctions

• category 1 offence

• max penalty is life imprisonment

• court may set non-parole period if appropriate

• standard sentence is 25 years

parole

the early release of a prisoner after their minimum sentence has been served

factors considered when determining a sentence

• nature and gravity of the offence

• vulnerability of the victim

• personal circumstances

• guilty plea

How is fairness upheld in the CJS

(+) Impartial judge and jury

(+) Rights/processes for a fair trial (e.g. POI)

How is equality upheld in the CJS

(+) availability of translators

(+) the rule of law

How is access upheld in the CJS

(+) Right to legal representation

(+) Right to legal aid

(+) Publicly accessible hearings

The role of Victoria police

• Prevention

• Investigation

• Prosecution

The role of the Australian Federal Police

• Prevent, investigate and prosecute crime at a federal level

• Work together with the state, territory and international police forces

How does the AFP achieve their role

• Exclusive jurisdiction in airports

• Represent Australian law enforcement internationally

• Protecting the country’s interests

• Guarding parliament house

Powers of AFP

• Arrest someone without a warrant

• Search a person

• Work alongside Vic police

Types of offences the AFP investigates

terrorism, drug offences, organised crime

Delegated bodies

Specialised government agency that has been given authority to make and enforce laws within its areas of specialisation
e.g VicRoads

Role of delegated bodies

• Enforce the law in their specific area

• Develop expertise in their particular area

Evaluating the ability of police and delegated bodies to achieve fairness

• (+) prosecution holds BOP and must prove accused is guilt BRD

• (-) A financially disadvantaged individual may not be able to present their case to the same extent as the prosecution

Evaluating the ability of police and delegated bodies to achieve equality

• (+) Police officers and other powerful institutions must remain impartial and offer same treatment to all people suspected of breaking the law

• (-) May carry subconscious bias against individuals with certain characteristics and therefore restrict equal treatment

Evaluating the ability of police and delegated bodies to achieve access

• (+) Distribution of workload among delegated bodies increases access to services as resources are adequately spread and available

• (-) Authority and funding can be changed by thr government which can result in limited access

Police powers

• Ask for name and address

• Search with a warrant (and without if they have reasonable belief)

• Search private property with a warrant (and without)

• Arrest a suspect with a warrant or reasonable belief

Court powers

• Decide which evidence is admissible

• Grant or withhold bail

• Determine and impose sanctions

Individual rights w/ police

• right to remain silent

• make 2 phone calls - family & lawyer

• access to interpreter if required

Individual rights w/ courts

• To be tried without unreasonable delay

• Remain silent - not a sign of guilt

• Right to a trial an impartial judge or jury

• Right to legal representation

• Right to know all evidence against them

Evaluating the balance between institutional powers and individual rights in relation to
fairness

• (+) right to silence supports POI by ensuring accused does not incriminate themselves

• (-) individuals may be unaware of their rights which can lead to unintentional self-incrimination - leads to unjust outcome

Evaluating the balance between institutional powers and individual rights in relation to equality

• (+) All accused invidivuals are entitled to recieve the same rights regardless of personal characteristics

• (-) police may have internal prejudice

Evaluating the balance between institutional powers and individual rights in relation to access

• (+) Right to an interpreter assists accused individuals who do not speak english to understand court processes

• (-) not everyone can afford legal representation - reducing access to justice

Role of victorian courts

• Provide access to an independent, experienced and knowledgeable judicial officier

• Ensure procedural fairness

• Provide access to a trial by jury

• Provide specialised knowledge and expertise

• Determine the outcome

• Impose an appropriate sanction

Evaluating criminal jurisdictions of Victorian courts in relation to fairness

• (+) specialised expertise and knowledge of judges/magistrates ensure consistent and fair outcomes

• (-) difficulty in appealing as the process is costly and lengthy

Evaluating criminal jurisdictions of Victorian courts in relation to equality

• (+) court rules and procedures apply equally to all parties involved regardless of personal characteristics

• (-) an offender must have grounds for appeal therefore may not be available to everyone

Evaluating criminal jurisdictions of Victorian courts in relation to access

• (+) The appeals process faciliatates the review of judicial decisions, ensuring mistakes in the CJS are corrected and provide access to a review from judges of a superior court

• (-) Appeals process further increase delays in the court system, therefore limiting an accuseds ability to access justice in a timely manner

When are juries used?

• Original jurisdiction of the County and Supreme Court

  • determine guilt or innocence (verdict) for an accused charged with an indictable offence

Composition of a jury

• Jury of 12

• Randomly selected from the electoral roll of Victoria (18+)

• 3 extra empanelled for lengthy trials as backups

Role of a jury

• Be objective

• Listen to the evidence and submissions made

• Listen to the directions of the judge

• Appoint a foreperson

Evaluating the role of a jury in a criminal trial in relation to fairness

• (+) empanelment process allows people who are not able to remain impartial to be excused

• (-) Juries are not required to give reasoning for their decisions to it is unclear if the law was applied correctly to the case

Evaluating the role of a jury in a criminal trial in relation to equality

• (+) Paid for by the courts so an accused is not limiting their individual resources

• (-) Jury trial is not available to those charged with an summary offence

Evaluating the role of a jury in a criminal trial in relation to access

• (+) Use of jury trials enable members of the public to be involved in and increase their knowledge of the CJS

• (-) Vast majority of cases are summary offences so a jury trial is only available to a small number of cases

Difficulties faced by First Nations

• Distrust of the justice system

• Language difficulties

• Cultural differences

Addressing difficulties faced by First Nations

• Dedicating funding to appropriate legal services (VALS)

• Courts and tribunals provide cultural training to address cultural differences

• VCAT accessibility improvals ensures FN can engage with the system.

Difficulties faced by young people

• Lack of understanding due to lack of education and complex legal jargon

• Negative effects of custody that exposes young people to negative effects of prison, stigma, and reduces opporutnities for rehabilitation.

• Psychological barriers such as feeling overwhelmed by the process

Addressing difficulties faced by young people

• YouthLaw Community Legal Centre

• Diversions programs/Children’s court to redirect and divert young people from criminal life

• Intermediaries to assist in the participation of trials

Evaluating the ability of the CJS to achieve
fairness
for
First Nations

• (+) the POI and SOP protects those who have difficulty presenting evidence or a defence

• (-) Difficulty in prsenting evidence due to language barriers and cultural practices compared to western standards - may result in court misinterpreting the facts

Evaluating the ability of the CJS to achieve equality for First Nations

• (+) VALS assists ATSI people interacting with the CJS

• (-) High incarceration rates point towards prejudice limiting equality as these biases can lead to harsher penatlies being imposed based on their race

Evaluating the ability of the CJS to achieve access for First Nations

• (+) Fundinng towards VALS provides culturally appropriate servies to FN people

• (-) High demand, lack of sufficient resources leading to funding cuts - may recieve inefficient services and will continue to experience discrimination