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Description
Flashcards by Zali Williams, updated more than 1 year ago
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Created by Zali Williams
over 6 years ago
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| Question | Answer |
| 3.2- Three principles of justice. [3 marks] | > Fairness: requires fair processes and a fair hearing. > Equality: where people should be equal before the law and have the opportunity to represent their case as anyone else. > Access: where people should be able to understand their legal rights and pursue their legal claims in court. |
| 3.2- Is fairness limited to a fair trial? [2 marks] | Fairness applies not just to the final hearing or trial but to the whole of a criminal case - police investigation, provision of legal advice before the trial etc. |
| 3.2- What is meant by access to the criminal justice system? [4 marks] | Access to criminal justice system means that people should be able to understand their legal rights and pursue their case. It means more than being able to access courts, it also means being able to approach bodies and institutions that provide legal advice, education, information and assistance, and receive from them information about criminal cases, processes and outcomes |
| 3.2- Sally's inability to access the criminal justice system. Explain how all 3 principles aren't achieved in this case. [5 marks] | Sally hasn't been treated fairly as she does not understand the court processes. She hasn't been treated equally but disadvantageously, because of the range of her disabilities. She hasn't had access because she hasn't had the opportunity to make use of processes and institutions within the criminal justice system. For fairness, Sally needs to be treated differently. She needs an advocate to help her put her case. This would mean she would be treated more equally to make up for her disabilities. The availability of legal representation would also increase access as she is too poor to engage a private lawyer. |
| 3.3- Outline 2 differences between summary & indictable offences. [4 marks] | > Nature of the offence: as summary offences are minor offences such as disorderly conduct, drinking offences and minor assaults. Indictable offences are serious criminal offences such as rape, homicide, fraud and drug trafficking. > Where they are heard, as summary offences are generally heard in the Magistrate's court while Indictable offences are heard by a judge and a jury. The final hearing for a indictable offence is called a trial while the final hearing is just called a hearing for summary offences. > Some indictable offences can be heard summarily in the Magistrate's Court if the accused agrees. This makes the process quicker, cheaper and the maximum penalty is less (maximum of 2 years for one offence & 5 years for multiple offences if heard in Magistrate's Court. |
| 3.3- Define summary & indictable offences. [2 marks] | A summary offence is a minor offence heard in the Magistrates' Court and an Indictable offence is a serious offence generally heard before a judge and jury in the County or Supreme Court. |
| 3.3- Define indictable offences heard and determined summarily. [2 marks] | This is an indictable or serious offence which can be heard in the Magistrates' Court as if they were a summary or minor offence but only if the accused agrees. |
| 3.3- Who has the burden of proof in a criminal case? What is the reason for this? [6 marks] | Refers to the party who has responsibility of providing proof for the case. This is the prosecution who must prove that the defendant is guilty. The reason for this is that if the prosecution is accusing a person of committing a crime then they have the responsibility to provide it. If the accused is pleading self defense then the burden is on them to prove they were in reasonable fear of their lives. In drug cases, the responsibility is in the accused to prove the drug was not in their possession. |
| 3.3- Define the standard of proof. [3 marks] | The standard of proof refers to the strength of evidence needed to prove the case. In a criminal case, the prosecution must prove the case beyond reasonable doubt. This means that there is no other logical or reasonable conclusion, based on the facts, except that the defendant is guilty. |
| 3.3-Define "the presumption of innocence", and explain 3 ways it is upheld in a criminal case. [6 marks] | Means every person accused of a crime is presumed to be innocent until they have gone before a court and have been found guilty. It is upheld by imposing a high standard on the prosecution to prove its case. Also upheld by imposing the burden of proof on the prosecution. Also upheld through the system of bail. This means that unless there are good reasons why a person should be deprived of their liberty and held in custody or remand, they are entitled to receive bail while awaiting court. Preparing a case as a free person is much better than trying to prepare it whilst on remand. |
| 3.4- What are human rights? [5 marks] | Human rights are an important part of the Australian legal system. A number of them are available to all Australians. They are only available to human beings and not companies. Three examples are: > A right to freedom of political expression > Freedom of movement within Australia > The right for an individual to enjoy their own cultural practices. |
| 3.4- Describe three rights that are available to an accused in a criminal proceeding and the main source of the right. [9 marks] | > The right to be tried without reasonable delay - an accused is entitled to have his or her charges heard in a timely manner. Any delay should be reasonable. The main source is s.21 and s.25 of the Human Rights Charter [HRC]. > The right to a fair hearing - a person charged is entitled to have that charge decided by a competent, independent and impartial court, and the hearing must be both fair and public. The main source is s.24 of the HRC. > The right to a trial by jury - a person charged with an indictable offence is entitled to be tried by his or her peers. The main source is s.80 of the Australian Constitution and Victorian statute law including the Criminal Procedure Act. |
| 3.5- Explain what is meant by the Victims' Charter, and who is a victim under that Charter. [8 marks] | The rights of victims are recognised by a number of statutes in Vic, including Victims' Charter Act (vic). Some objectives are to recognise the impact of crimes in victims, recognise that victims should be offered certain indo during investigation & prosecution process, and to reduce likelihood of secondary victimisation that may be experienced by victim bc of their interaction with the criminal justice system. A victim under the Charter may include: > person who has suffered a direct result of criminal offence (primary victim) > family member of person who has died as direct result of criminal offence > family member of person who is under 18 or is incapable of managing own affairs bc of mental impairment, which that person who has suffered injury as direct result of criminal offence. > child under 16 who has been groomed for sexual conduct as well as childs family |
| 3.5- Is a victim entitled to receive information about the likely release date of a prisoner? [5 marks] | A person who is a victim of a criminal act of violence may apply to be included on the Victims Register. This is a database or register maintained by the State of Victoria to provide it with information about the offencer. A person who is registered on the Victims Register may recieve certain info about an offencer who has been imprisoned including their likely date of release, including release on parole. The information must be provided at least 14 days before the release of the prisoner. |
| 3.5- Will a victim always be entitled to information about an investigation? [3 marks] | The Victims' Charter requires an investigatory agency, usually the police, to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence. However, the information does not need to be given if it may jeopardise the investigation, or if the victim chooses not the receive that information. |
| 4.1- Define term "legal aid". Does it always include legal representation? [3 marks] | Legal Aid means education, advice or information about the law and the provision of legal services including legal advice, assistance and representation. It does not always include representation. Giving advice doesn't mean formal legal representation. Legal representation means Victorian Legal Aid (VLA) will "represent" the accused in the case. The VLA will be on record as the accused's lawyer. |
| 4.1- Identify two organisations that provide legal advice and assistance to people. [1 mark] | > Victorian Legal Aid (VLA) > Community Legal Centres (CLCs) |
| 4.1 Explain role of Victorian Legal Aid (VLA). [4 marks] | Main roles: > provide legal aid in the most effective, economic and efficient manner > make legal aid available at a reasonable cost to the community and equal basis throughout Victoria > improve access to justice and legal remedies > the most critical role is to provide legal aid to accused people Other roles: > control and administer the Legal Aid Fund > in co-operation with government bodies and departments, meet the needs of the community for legal aid > make recommendations about law reform > research legal aid issues |
| 4.1- Remember types of legal aid that VLA can provide for different peoples. | Go to 4.1 booklet. |
| 4.2- Define term "committal proceeding". [2 marks] | The committal proceeding involves a number of stages and preliminary hearings in the Magistrates' Court for indictable offences where an accused has pleaded not guilty. |
| 4.2- What are pre-trial procedures. [2 marks] | They are the various steps that are taken on the way to a trial to determine the guilt of an accused and impose a sanction. One pre-trial procedure is the committal proceeding. |
| 4.2- Explain 2 purposes of a committal proceeding. Link each purpose to one or more of the principles of justice. | > to act as a filtering process to test the strength of the prosecution's case against the accused. goes to the principle of fairness as the accused knows the evidence against them and can attempt to knock it out. It shows that fairness applies to the whole of a case and not just a trial at the end. > it allows the accused to put forward an alternative case at an early stage if they chose to. goes to the principle of fairness as it gives the accused the oppotunity to present their case both purposes go to the principle of equality as committal proceedings apply equally to everyone, no person should be treated advantageously or not bc of a personal attribute or characteristic. both purposes apply to access which gives the opportunity of testing the prosecution case and putting up their own. is successful the magistrate would discharge the accused at this early stage which stops the need for a long & expensive court case. |
| 4.2- What is the final hearing called, and what is the main purpose of that hearing? [2 marks] | The final hearing is called the committal hearing. The main purpose of that hearing is for the magistrate to determine whether there is sufficient evidence to support a conviction for the offence charged. |
| 4.3- Explain what is meant by the term "plea negotiations". [2 marks] | Plea negotiations are without prejudice discussions (can't use them in court later on) between the prosecution and the accused about the charges against the accused, with a view to resolving the case before trial. |
| 4.3- Is the court involved in plea negotiations? [4 marks] | The court is not involved in plea negotiations. They are discussions between the prosecution and the accused about the charges put against the accused. The court is not involved in these discussions, but the court will be informed of the charges the accused has pleaded guilty to and will decide what sanction to impose. |
| 4.3- Describe two possible outcomes of a plea negotiation. [4 marks] | > the accused pleads guilty to fewer charges, with the other charges not proceeding. > the accused pleads guilty to a lesser charge, a charge for an alternative offence with a lower maximum penalty. For example, a person charged with culpable driving causing death could negotiate to have this changed to dangerous driving causing death, which carries a lower maximum penalty than culpable driving when they plead guilty to that charge. |
| 4.4- What is a sentence indication? [2 marks] | A statement made by a judge to an accused about the sentence they could face they please guilty to the offence. |
| 4.4- Who gives a sentence indication, when is it given, and who is it given to? [3 marks] | They are given by a judge or court, when the accused applies for one and it is given to the accused. |
| 4.4- Explain two differences between sentence indications for summary offence sentence indication for indictable offences. [4 marks] | > indictable offences, the prosecution must give consent. But for summay offences, there is no need for the prosecution's consent. > for indictable offences, the accused must apply for sentence indication. But for summary offences, i can be given at any time by the Magistrates' Court. > for indictable offences, the indication is whether the immediate sentence of imprisonment is likely to be imposed. But for summary offences, it is as to whether sentence of imprisonment or sentence of another type of likely to be imposed. |
| 4.4- "There should be a law that requires victims to give consent to the accused getting a sentence indication." Discuss. [10 marks] | There should not be a law that requires victims to consent to the accused getting a sentence indication. The sentence indication regime was introduced in 2008 as another method, other than plea negotiations, used to encourage an early determination of a criminal case. The court can already refuse to give a sentence indication if there is insufficient information about the impact of the offence on any victim. So it can be assumed that a court will determine the impact on victims before giving a sentence indication. Thus, there is no need to change the law. The Sentencing Advisory Council has said that sentence indications may not be appropriate for sex offence cases given their sensitivity. Therefore, the law could be reviewed in this specific area, but that should not give rise to a general victim's consent on all offences. There are already a number of restrictions on the legislation. In relation to indictable offences, the judge is not obliged to grant the accused's request, and in the higher courts, the prosecutor must consent to the indication being given. (continued..) |
| 4.4- "There should be a law that requires victims to give consent to the accused getting a sentence indication." Discuss. [10 marks] CONTINUED | (..continued) The indications regime seems to be working well in the way that it has been set up, with an early determination of cases saving money and resources and reducing trauma, stress, and inconvenience on the accused and the victims. However, after ten years, it is probably worthwhile to conduct a review through the Sentencing Advisory Council or Law Reform Commision. There should not be a law that requires victims to consent to the accused getting a sentence indication. |
| 4.5- What is meant the term "court hierarchy"? [1 mark] | Court hierarchy means the arrangement of courts into a ranking based on the severity and complexity of the cases they can hear. |
| 4.5- What is the highest Victorian state court, and what is the lowest Victorian state court? [2 marks] | The highest Victorian state court is the Supreme Court of Victoria- Court of Appeal. The lowest Victorian state court is the Magistrates' Court. |
| 4.5- Define the term "jurisdiction". [1 mark] | Jurisdiction means the lawful authority or power of a court, tribunal or other dispute resolution body to decide legal cases. |
| 4.6- Explain two circumstances that are needed for a criminal trial to be heard in the Supreme Court of Victoria. [2 marks] | One circumstance is that the accused pleads not guilty. Another circumstance is that an indictment be filed in the Supreme Court giving details of the charge. |
| 4.6- Does the judge have any investigatory powers? [6 marks] | The judge does not have any investigatory powers. They act as an umpire or referee at trial. They make sure that the rules of evidence and procedure are carried out and that each of the parties is treated fairly. They can call new witnesses with the permission of both sides. But they are not an active participant in the trial. They don't do any more than cleaning up ambiguities in points that have already been raised. They do not suggest arguments or lines of enquiry. They don't take sides. |
| 4.6- Explain how the responsibilities of the judge uphold the principles of fairness and equality. [10 marks] | The responsibilities of the judge uphold the principles of fairness and equality. In terms of managing the trial. the judge must ensure that correct court procedure is followed so that both parties have an equal opportunity to present their case. This can involve controlling witnesses and legal practitioners. This goes to the principle of equality as all people should be able to understand court processes, have an opportunity to present their defence and rebut the prosecution case. Also during the trial, the judge may need to five directions to the jury. This may include telling the jury that the accused is not required to give directions to the jury. This may include telling the jury that the accused is not required to give evidence and that they should not assume guilt because of this. This ensures the principle of fairness, that the jury understands the court processes. (continued..) |
| 4.6- Explain how the responsibilities of the judge uphold the principles of fairness and equality. [10 marks] CONTINUED | (..continued) It also goes to the principle of equality, that no person should be treated advantageously or disadvantageously before the law. A judge's other responsibilities include assisting a self-represented party so they understand procedures and legal terminology. This ensures a fair trial. It also goes to the principle of equality as it helps to make sure that the accused is on an equal footing with prosecution as far as possible. |
| 4.7- Identify four key personnel in a criminal trial and briefly describe their role. [8 marks] | > The judge whose role it is to manage the trial, decide on the admissibility of evidence, attend to jury matters, give directions to the jury and sum up the case and hand down a sentence. > the jury whose role it is to be objective, listen to and remember evidence, understand directions and summing up, and to deliver a verdict > the parties whose role it is to give an opening address, assist the judge in jury matters, present the parties’ case, give a closing address, make submissions about sentencing and other responsibilities > the legal practitioners whose role it is to be prepared, comply with their duty to the court, present the case in the best light possible and other responsibilities. |
| 4.7- Who is responsible for convincing the jury that the accused is guilty? [3 marks] | The prosecution is responsible for convincing the jury that the accused is guilty. They have the burden of proof or responsibility for proving the case. The accused is presumed innocent until proven guilty and do not have to lead any evidence, but they invariably do. |
| 4.7- Explain whag is meant by party control. [5 marks] | Party control allows parties to make decisions about what to present and how to present evidence in the case. The prosecution is required to present to the jury all the credible evidence that it considers relevant to the case. However, unlike the prosecution, which has the burden of proof and needs to present evidence to prove the facts, there is no obligation on the accused to give evidence or call any witnesses. The accused has complete control and can chose to say anything. |
| 4.8- Identify and describe three purposes of criminal sanctions. Provide an example of each of those purposes might be a relevant consideration when sentencing an offender. [9 marks] | > rehabilitation: the treatment of the offender to address the underlying reasons for the offender committing the crime. this aims to assist the offender changing their attitudes and behaviors. It is relevant consideration when sentencing an offender who has good prospects of being rehabilitated. for instance, a young drug addict who accepts treatment and has a supportive family. > punishment: gives the community some revenge against the offender, so that the victim and the community feel justice has been done. this means the victim wont take the matter into their own hands and seek revenge. it is relevant consideration when sentencing an offender who has committed a very serious offence such as murder. for instance a former de facto partner who has killed her partner because she did not want to be in a relationship anymore with him. > deterrence: general deterrence is aimed at discouraging other people from committing similar offences because they see the severe consequences of committing the crime. (continued..) |
| 4.8- Identify and describe three purposes of criminal sanctions. Provide an example of each of those purposes might be a relevant consideration when sentencing an offender. [9 marks] CONTINUED | (..continued) specific deterrence discourages the offender from committing the same offence again. general deterrence was a relevant consideration when sentencing an offender in a tobacco excise tax evasion case, to 18 months in prison which was turned into a good behavior bond for two years. The court was satisfied that he would not offend again - so specific deterrence was not an issue. But the court wanted to send a message to others thinking of tobacco tax evasion, that is was a serious offence which may involve imprisonment. |
| 4.8- Suggest reasons why the community believes there is a need to punish an offender. [3 marks] | The community believes there is a need to punish an offender. This is because the offender has done something unacceptable to society like hurting someone, and the victim and society want justice done. They want revenge or retribution against the offender. This process of punishment through the courts avoids the need for the victim of the crime to take matters into their own hands and seek revenge. |
| 4.8- Explain the difference between general deterrence and specific deterrence. [2 marks] | Gender deterrence discourages other people from committing similar crimes. Specific deterrence is difference as it discourages the offender from committing similar crimes again. For instance, by putting them in prison. |
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