Role of the judge or magistrate, the jury and the parties

Role of the Judge/Magistrate

IMOS

Act Impartially

• fundamental part of our legal system, this ensures accussed has fair trail

• impartially also extends to apprehended bias, that is when a judge has made acomment in past or association with the case

• judge or magistrate can remove themselve so its fair

Manage the trail or hearing

• ensures correct court procedure so both parties have = opportunity

• involves controlling witnesse, order of events, working with legal practitioners

• they are not active participants although can occasionally ask questions of a witness, recall a witness for matter to be clarified or call a new witness w permission form both sides

• must decide admissibility of evidence (which evidence gets allowed)

Decide or oversee mthe outcome of the case

• judge may give directions to the jury to ensure a fair trail

• once trail is concluded, needs to summarise the case to the jury

• for magistrates court, magistrate decides guilt when accused pleads not guilty

Sentence the offender

• if jury, magistrate or accussed pleads/finds the accussed guilty the case will be set down for a plea hearing and parties will make submissions about sentencing

• Victim impact statements may also be presented

• judge/magistrate will hand down the sentence, may or may not be on the same day as the plea hearing

• judge or magistrate must follow the Sentencing Act 1991 (vic)

S & W of the role of the magistrate or judge

Strengths

• independant & impartial adjudicator

• has no prior association w parties ensures equality and fairness

• ensures fair hearing, shows no bias and enforces equality

• ensures parties follow rules of evidence and procedure

• ensures reliable, relevant evidence

• ensures a fair hearing as in both parties are treated the same

• can assist self represented accused

Weaknesses

• judge has a limited role

• not allowed to suggest q’s

• hinders a fair hearing unable to fully help achiev justice

• judge may unintentionally show bias towards one party

• eg. showing bias to party

• limited in their ability to help self-represented accussed

Role of the jury

LOUD

Listen and remember evidence

• jurors are encouraged to take notes

• evidence might be complicated

be objective

• jury must remain unbiased, open mind, no prejudice

• no connection w parties

understand directions and summing up

• judges give directions to jury to help understanding. required to listen to the direction & summing up by the judge

deliver a verdict

• must have part in the deliberation process to make opinion abt which parties, required to listen to the direction

• deliberations should be taken freely & must aim to reach unanimous decision

S & W of the role of the jury

Strengths

• representsmany views & values so the decision is more likely to be right & the acussed want to feel oppressed by authority

• a verdict of guilty may be more likely to be right of made by 12 ppl than 1 person

• strength as parties have more confidence in decision & likely to be correct

• safeguard against the misuse of states power, buffer. removes political interference

• strength as jury decides & state cant interfere

Weaknesses

• doesnt rep a true cross-section of the community

• some ppl are disqualified, ineligible

• lawyers are ineligible as opinion carry too much weight

• minority groups are eliminated so jury may not have large range of views

• takes long time involves ppl all needing ti make the same decision

• time confusing

• may misuse power

• no check to see if all evidence is considered

• not held accountable

Role of the parties

Role of the prosecution

Disclose info to the acussed

• recured to present all credible evidence to case

• prosecution has the burden of proof & needs to prove facts

• no obligation on accussed to give evidence

• must give statements of witnesses

participate in the trail or hearing

• must give opening & closing statements, call & examine witnesses & cross examine any wittnesses by the accussed

make submissions about sentencing

• if the accussed is found guilty or pleads guilty, teh parties may make submissions about sentencing

role of the accused

participate in the trail or hearing

• must give opening & closing statements call & examine witnesses & cross examine any witnesses by the accused

make submissions abt sentencing

• if found guilty or pleads guilty, the accused may make submissions about sentencing.They will try to obtain the least possible sentence available relying on mitagating factors that weigh towards a higher sentence. must not mislead the court

S & W of the role of parties

Strength

• parties are satisfied as they have control over their own case & chooses what arguments & facts to present

• accused does not have to present evidence or do not say anything in trail

Weakness

• prosecution is required to bring