Untitled Flashcards Set

Key Principles of Criminal Justice System:

Burden of Proof:

Relates to which party having the legal onus to prove the facts of a case. Rests with the prosecution as they initiated the case in a criminal case.

Standard of Proof:

The level of certainty and the degree of evidence necessary to establish proof. The standard is beyond all reasonable doubt.

Presumption of Innocence:

The right of a person accused of a crime to be presumed not guilty unless proven otherwise.

Have the right to silence and a committal proceeding is ensured to see if there is enough evidence to support a conviction.

Committal Hearing/Prima Facie Case:

Hearing which decides if there is sufficient evidence against the accused for the trial to occur.

Remand:

Situation where an accused is kept in custody until their criminal trial can take place.

Bail:

The release of an accused person from custody on the condition they will attend a court hearing to answer the charges. 

Surety:

Assets given to the courts to guarantee a person on bail will come to court on time. 

Summary and Indictable Offences:

Summary offence:

An offence of less serious nature and is heard by the Magistrate’ Court with no jury, and a magistrate. 

Summary offences are found in the Summary Offences Act 1966. 

Indictable offence:

An offence of more serious nature that is more serious in nature and is heard in the County and Supreme Court (Trial Division) in front of a judge and jury if pleading not guilty. 

Indictable offences are found in the Crimes Act 1958. 

Indictable offences heard summarily:

A serious offence that is dealt with as a summary offence if the court and the accused agree. It doesn’t have to go to trial. 

The Right of an Accused:

The right to be tried without unreasonable delay:

Under ss 21(5)(b) and 25(2)(c) of the VCHRR Act 2006, an accused has the right to be tried without unreasonable delay and without exceeding the limits of what is fair or acceptable. 

Factors of reasonable are:

- The nature of the crime

- The ability to find evidence and the complexity of that evidence.

The right to silence:

Under section 25 (2)(k) of the VCHRR Act 2006, an accused can choose to remain silent during a police interview and in giving evidence during a trial. This means the accused does not have to answer questions where the answers could potentially incriminate themselves. 

The right to trial by jury:

Under section 80 of the Australian Constitution, if an accused has pleaded not guilty to an indictable offence that will be heard in the County Court or Supreme Court (Trial Division), they have the right to a trial by a jury. 

Jury is a group of randomly selected people empanelled off the electoral roll to provide a cross section of the community’s values and views with no pre-existing biases.

Jury serves a number of important purposes as they:

- Safeguard the rights of the accused by limiting the power of the State. 

- Ensure that justice is administered in line with community standards whereas judges may not be considered representatives of the community’s views and values.

- Enable the community to participate directly in the justice system, Can help people understand and accept trial outcomes, gaining confidence in the legal system. 

The Rights of the Victim:

The right to give evidence using alternative arrangements:

Victims and witnesses who give evidence in a criminal trial may find the experience challenging. They may be intimidated by the court environment and seeing the accused in court.

Purposes of providing alternative arrangement:

- Is protected from unnecessary contact with the accused.

- Is not placed in a position where they are scared.

- Is not placed in a position where they may give unreliable evidence due to trauma suffered. 

Alternative arrangements to give evidence may be provided for:

- Child victims - Young people -Victims of sexual offences

- Victims with a cognitive impairment -Victims of family violence. 

Alternative arrangements include the following:

- Victim can give evidence via closed-circuit television. Allows evidence to be given away from courtroom and accused and the recording means the victim only has to give info once. 

- Screens can be used in the courtroom to remove the accused from the direct line of sight of the victim.

- A support person (not another witness) can be chosen by the victim while they give their evidence.

- Legal practitioners can dress less formally or remain seated when asking questions of the victim.

-Court can be closed to the public while the victim gives evidence or only certain people may be allowed in the courtroom when giving evidence.

The right to be informed about the proceedings:

Under section 8 of VCHRR Act 2006, investigatory agencies are to inform victims at ‘reasonable intervals’ about the progress of the investigation into the criminal offences. 

Victims should be informed about the following:

- Where an accused has been charged:

-What the charges are

-If the charges are modified

- Where no charges have been laid and the reasons as to why not.

- The trial, date, place or time. 

- Their right to attend any court proceedings

- The outcome of any court action, including the sentence given. 

- If an appeal is sought, the grounds and result of that appeal. 

If accused is found guilty, victim can make Victim Impact Statement:

- Enables the magistrate or judge to understand the impact of crime on victim

- Allows the victim themselves to explain the impact of crime to court. 

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

Victim has to register on the Victims Register to be informed about the outcome of a bail application.

If an offender has been found guilty and sentenced, victim can submit VIS to receive info such as:

- Length of sentence given

- The likely release date of the offender.

- If a supervision order has been made.

- If the Adult Parole Board is considering the release of the offender on parole. 

Principles of Justice:

Fairness:

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

Impartial processes:

Everyone involved in a criminal case must be independent and impartial and should not be biased towards or against any party. 

Open processes:

Means that cases are heard and decided in public, so that the community and the media can see justice being done.

Participation:

Meaning all individuals can participate with the criminal justice system.

For example:

- Opportunity to know the case put against them

- Opportunity to prepare for a defence

- Opportunity to examine witnesses

- Use of a lawyer

- Use of an interpreter

- Tried without unreasonable delay

- Allowing some victims to give evidence using alternative arrangements

- The use of victim impact statements

- Providing the opportunity to give their views

Other features of fairness:

-The right not to testify against oneself: the accused has the right to silence. 

-The presumption of innocence: the accused is presumed innocent until proven otherwise

Equality:

All people engaging with the justice system and its processes should be treated in the same way. 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. 

Same treatment/Formal Equality:

People must be treated in the same way regardless of their characteristics or features such as race, sex, gender, religion or age.  

Different treatment/Substantive Equality:  

If treating people in the same way can cause disparity or disadvantage, then measures should be placed to allow people to participate in the justice system without disparity or disadvantage.

Examples of equality:

- Interpreters

- Providing information in a different way

- Changes to court processes

- Different form of oath or affirmation

- Changes for the purposes of cultural differentiation

- Breaks and adjournments 

Access:

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

Engagement:

People need the means and abilities to participate in the system.

This includes:

Physical access: People should be able to physically access the courts, services or legal representation. May be more difficult for people in rural or remote areas, or for people who have disabilities as they are not able to physically attend.

Technological access: if virtual or online methods are used to provide services or even conduct court hearings, then people should be able to engage with those methods.

Financial access: People should not be prevented from defending their case and using the criminal justice system because they do not have the financial means to do so.

No delays: People should be able to have their case resolved without unreasonable delays. Delays have an impact on access as it limits the ability of people to engage with the justice system.

Informed Basis:

Means to understand their legal rights and the processes involved in their case. 

For Example:

Education: People who have completed higher levels of education or have particular knowledge of the criminal justice system or their rights may help them become informed. Lower literacy levels, for example, can impact a person’s ability to understand legal processes.

Information: People should have access to information about court processes and their

rights. This information can be provided in person or online and may be available from the courts, and legal bodies and agencies such as VLA.

Legal and support services: Having free access to legal and support services can help people be more informed about their rights and legal processes. 

Legal representation: Having legal representation is one of the most effective ways that a person can be informed about and understand their rights and legal processes.

Victorian Legal Aid:

Victorian legal aid (VLA) is a statutory authority established under the Legal Aid Act 1978. 

VLA’s role is to provide a range of legal aid services at low or no cost to people charged with criminal offences who would not otherwise be able to afford them and who meet VLA’s eligibility criteria.

VLA focuses on people who are disadvantaged (e.g. financially) or at risk of social exclusion (e.g. mental illness). 

Main Roles of VLA:

- Legal advice

- The preparation of legal advice

- Assistance resolving matters in dispute

- Representation in court

Specific Functions of VLA:

- Providing legal aid in the most effective, economic and efficient way. 

- Managing resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the state. 

- Providing improved access to justice to the community.

- Providing legal aid directed at minimising the need for individual legal services. 

- Ensuring the coordination of provision of legal aid info so it responds to legal and related needs of the community.

For criminal matters, VLA’s services include:

- Legal information services for all Victorians including library services. 

- Community legal advice including free online resources and publications.

- Duty lawyers, e.g. Magistrates’ and Childrens Court.

- Free legal advice for those who meet the eligibility criteria.

VLA Lawyers can assist people who:

- Cannot afford a lawyer from a private firm.

- Are a child or young person (18 or younger) going to Children’s Court.

- Are Aboriginal or Torres Strait Islander.

- Are experiencing or at risk of homelessness.

- Have an intellectual disability, an acquired brain injury or mental illness. 

- Can’t speak or understand english well.

- Are in custody or facing a serious penalty. 

- Victim of crime. 

Reasonableness test/Merit test:

Relates to the various merits of different legal problems such as the likely benefits for the accused and the public of providing legal aid. 

Issues that will be considered include:

- Whether the benefits from a legal proceeding will justify the cost of legal aid. 

- What likely harm to the accused may result if legal aid isn’t given.

- Whether there will be a successful outcome from the court proceedings.

- Whether it is in the interest of justice that legal aid is provided to the accused.

- If the legal problem relates to an appeal, whether there are reasonable grounds for an appeal. 

Means test will apply to most adults. VLA will:

- Look at the accused’s income, assets and expenses.

- Take into account another person’s income, assets and expenses, if that person provides support for the accused.

- Take into account whether the accused has anyone relying on them for financial support. 

Community Legal Centres (CLC’s):

Community Legal Centres (CLC’s) are independent community organisations that provide free legal services such as advice, information and representation to the Victorian public, particularly those facing economic and social disadvantage. 

Their work includes:

- Legal advice and casework

- Legal education to the community

- Advocacy for legal reform to improve justice

- Assistance to victims of crime. 

Role of CLC’s are limited because:

- A number of CLC’s only offer legal advice and representation in certain areas of law. 

- Many CLC’s which offer legal advice and representation in criminal law matters will only represent accused persons involved in minor criminal matters and/or rather straightforward criminal cases. Persons accused of more serious crimes/offences which are legally complex are unlikely to receive substantial assistance from CLC’s.

- There are a limited number of CLC’s in rural and regional Victoria. This means that accused persons who don’t reside in urban areas in Victoria may struggle to access legal advice and gain representation from CLC’s. 

Victims Legal Service:

Victims Legal Service (VLS) provides free legal advice and support for people who are victims of crime and who need help obtaining financial assistance or compensation.