Legal Studies Unit 3 Area of Study 1 VCE Notes PDF

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Legal Studies Unit 3 Area of Study 1 VCE Notes - 2021...

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Area of Study One Key knowledge – Key concepts The principles of justice: fairness, equality and access Fairness 

Impartial and just treatment or behaviour without favouritism or discrimination o Impartiality o Jury/press o Process o Procedures o Precedent o Consistency o Presumption of innocence o Fair process o Fair hearing o Achieved by:  Keeping impartiality within the process along with precedent, providing a consistent and fair hearing

Equality 

State of being equal, especially in status, rights or opportunities o Equal opportunity o No advantage or disadvantage o Free from bias and discrimination o Level playing field o Achieved by:  Removing any advantages or disadvantages, giving equal opportunity and an equal playing field for both parties

Access 

All people should be able to understand their legal rights and pursue their case o Access institutions that hear criminal cases o Ability to use bodies and institutions that provide legal advice, education, information and assistance, and receive from them information about criminal cases, processes and outcomes o Opportunity to make use of the processes and institutions within the criminal justice system, and that these are not beyond their reach o Achieved by:  Giving everybody the opportunity to make use of the processes and institutions within the criminal justice system and that these are not beyond their reach

Key concepts in the Victorian criminal justice system, including: The distinction between summary offences and indictable offences  Summary offences are less serious and are heard in the Magistrates’ Court

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Indictable offences are heard before a judge and jury in the County or Supreme courts but may be heard in the Magistrates’ Court if both parties agree

The burden of proof  The burden of proof determines which party is responsible for putting forth evidence  This burden of proof is upon the plaintiff in a civil case and the prosecution in a criminal case  The burden of proof is significant in Section 25 of the Charter of Human Rights and Responsibilities which upholds the presumption of innocence through the burden of proof not being placed on the accused The standard of proof  The standard of proof refers to the duty of the party with the burden of proof in disproving defences of expectations to liability  In a criminal case, the standard of proof is beyond reasonable doubt  In a civil case, the standard of proof is on the balance of probabilities The presumption of innocence  The presumption of innocence is the legal principle that one is considered ‘innocent until proven guilty’  This is protected by the Charter of Human Rights and Responsibilities in Section 25 where ‘A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law’ The rights of an accused, including the right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury  The right to be tried without unreasonable delay is protected by Section 21 of the Charter of Human Rights and Responsibilities which states that ‘A person who is arrested or detained on a criminal charge has the right to be brought to trial without unreasonable delay’ o This right ensures that the accused is entitled to have their charges heard in a timely manner and that delays should only occur if they are considered reasonable o For example, it would be reasonable for the prosecution to need more time to prepare for a case involving multiple crime scenes, multiple crimes and multiple accused people with few or no witnesses, as opposed to a case where there was a single incident with multiple witnesses o In the case Gray v DPP, Gray applied for bail and pointed to the delay that he was likely to experience before the trial was to occur as a reason to be granted bail. Justice Bongiorno of the Supreme Court of Victoria noted that the Human Rights Charters guarantees a timely trial and that the inability of the Crown to provide that trial had an effect on the question of bail. He found that the only remedy that the Supreme Court could provide the accused in this situation, where the Crown had failed to guarantee a timely trial, was to release him on bail o An example case is Baker v DPP (Supreme Court - 2017) where Baker was accused of possessing child pornography in 2014. Due to the delay, where there was a window of 52 weeks when the trial could have taken place, Baker had turned 19 and could no longer be tried in the Children’s Court. He argued that as a result of delay, the trial would no longer be fair due to the sentence imposed within the Children’s Court would be less. The judge concluded that due to unreasonable delay, such factors were ‘to be taken into account in arriving at an appropriate sentence should he be found guilty after a trial’  The right to a fair hearing is protected by Section 24 of the Charter of Human Rights and Responsibilities as it claims that ‘A person charged with a criminal offence or a party to a civil

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proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing – A court or tribunal may exclude members of the media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter – All judgements or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other this Charter otherwise permits’ o For example, in the case of Dietrich v The Queen (1992), Dietrich was arrested after arriving from Thailand and charged with drug trafficking offences. He applied for legal aid but was unsuccessful in obtaining representation for his trial. His trial in the County Court lasted around 40 days in which the jury found him guilty. He appealed his conviction but was refused leave. He appealed again to the High Court. The sole ground of the appeal was that the trial miscarried because he was not provided with legal representation. The High Court agreed with Dietrich and found that the trial judge should have delayed the trial until arrangements could be made for him to obtain legal representation and because this did not occur, Dietrich was deprived of his right to a fair trial  This set a precedent that the court can now stay proceedings until the accused has an opportunity to get legal representation o For example, in 2017, the Court of Appeal overturned the conviction of Gene Gibson, an aboriginal man who had spent nearly 5 years in prison after pleading guilty to manslaughter. This was due to the conviction being the result of a miscarriage of justice, as Gibson did not have the language skills or cognitive ability to understand the legal process. o For example, in George Pell v The Queen (2018 - County Court and 2019 - Supreme Court), Pell was found guilty of child sexual abuse charges where the verdict and all other information derived from the trial was subject to a suppression order which prevented any information being published which could jeopardise a second trial The right to trial by jury is protected by section 80 of the Commonwealth of Australia Constitution which states that ‘The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes’ o The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards o However, section 80 provides limited right because most indictable offences are under state law while the section only applies to Commonwealth offences – The Commonwealth Parliament can also determine by statute which offences are ‘indictable’  For Victorian offences, the Criminal Procedure Act 2009 (Vic) requires a jury to be empanelled where the accused pleads not guilty to the indictable offence – There is no right to jury for summary offences – Jury is only necessary for not-guilty pleads o The jury is made up of 12 jurors for a criminal case and 6 for a civil

The rights of victims, including the right to give evidence as a vulnerable witness, the right to be informed about the proceedings, and the right to be informed of the likely release date of the accused  The right to give evidence as a vulnerable witness is included in the Criminal Procedure Act which aims to protect vulnerable witnesses

Vulnerable witnesses may include children, people who suffer from a cognitive impairment, and people who have been a victim of sexual offences and domestic violence  These people are particularly at risk if they give evidence because of their circumstances and may feel uncomfortable or distressed, embarrassed or intimidated, or may suffer secondary trauma as a result of having to describe what happened – These factors could jeopardise the evidence o Alternative arrangements for proceedings of a sexual offence, family violence offence, offence for obscene, indecent, threatening language or behaviour in public and an offence for sexual exposure in a public place include:  Giving evidence from another place other than the courtroom by means of closed-circuit television  Screens used to remove the accused from the direct line of vision of the witness  Support person chosen by the witness to be there while giving evidence  Only certain persons allowed in court when the witness is giving evidence  Legal practitioners required not to be formally dressed in robes, or required to be seated while asking the witness questions o Other protections available are:  A court can declare at any time that a witness is a protected witness in a criminal proceedings for a sexual offence or a family violence offence. If a declaration is made, the protected witness must not be cross-examined by the accused. Instead, the cross-examination must be conducted by the accused’s legal representative. If the accused has no representative, the court must order VLA to provide legal representation for the accused for the purpose of cross-examination  Special protections are available to witnesses under the age of 18, or with a cognitive impairment, in criminal proceedings for a sexual offence, an indictable offence involving assault on, or injury or threat of injury to a person, and offences involving minor assaults where those assaults relate to one of the above two offences. These witnesses will be allowed to give their examination-in-chief by way of audio or audio-visual recording. That recording may then be provided to the accused, who will have a reasonable opportunity to hear it or view it. The right to be informed about the proceedings is recognised by Sections 7, 8 and 9 of the Victims’ Charter as it requires investigatory agencies, prosecuting agencies and victims’ services agencies to provide clear, timely and consistent information about support services, possible compensation entitlements and the legal assistance available to persons adversely affected by crime – It also requires an investigatory agency to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence, although, the information does not need to be given if it may jeopardise the investigation, or if the victim chooses not to receive that information o Once prosecution has commenced, the victim has the right to:  Details of the offences charged against the person  If no offence is charged, the reason why  How the victim can find out the date, time and place of the hearing of the charges  The outcome of the criminal proceeding, including any sentence imposed  Details of any appeal The right to be informed of the likely release date of the accused is sourced from Section 17 of the Victims’ Charter as those that are a victim of a criminal act of violence and have then o

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registered on the Victims Register may receive information about release date and if applicable, release on parole – Information must be provided at least 14 days before the release of the prisoner o Criminal acts of violence are identified:  Rape and other sexual offences  Aggravated burglary  Kidnapping  Stalking  Child stealing  Offences involving assault or injury punishable by imprisonment  Culpable driving causing death  Dangerous driving causing death or serious injury  Failing to stop after a motor vehicle accident causing death or serious injury o Other rights from the victims register include the right to know the length of the sentence, right to be told if the offender escapes from prison and right to make a submission if the imprisoned offender may be released on parole

Key knowledge – Determining a criminal case The role of institutions available to assist an accused, including Victoria Legal Aid and Victorian community legal centres  Victoria Legal Aid is a government agency that provides free legal advice to the community with low-cost or no-cost legal representation for people who cannot afford to pay for a lawyer o VLA prioritises people who need it the most and cannot get legal assistance any other way o VLA has four types of assistance:  Free legal information – VLA’s website has free publications and resources, information about criminal cases, and a public law library that includes case law and other legal materials. Legal information is also available over the phone – This is available to everyone  Free legal advice – Advice is provided in person, by video conference or over the phone – This is available to those who:  Cannot afford a private lawyer  Have a disability or are in psychiatric care  Are homeless  Are children  Cannot speak, read or write English well  Are Indigenous Australians  Are at risk of family violence  Are in custody  Free duty lawyer services – This is a VLA lawyer who is at court (on duty) on a particular day and who can help people who are at court for a hearing on that day. They can give fact sheets about what happens in court, offer legal advice, or represent an accused in court on that day. Duty lawyers are only available in the Magistrates’ Court and the Children’s Court; they are not available for indictable offence trials – Availability:  Fact sheets are available to everyone  Legal advice is for those who satisfy the income test and are facing a straightforward charge. People in custody are given priority and do not need to satisfy the income test

The income test is the test applied by VLA to determine whether a duty lawyer can represent an accused. The test is satisfied when the accused can show they have limited income. If the accused has a current Centrelink benefit card (showing they are receiving welfare benefits) or pensioner concession card they will meet the needs of the income test.  For legal representation at the hearing, the accused must satisfy the income test, and either be facing a significant charge or be one of the people that VLA prioritises. Duty Lawyers prioritise those who are in custody and are being brought to court for the first time on that charge  Grants of legal assistance (getting a lawyer to run the case) – VLA may be able to grant legal assistance to people who cannot afford a lawyer. This may include legal advice, helping the accused resolve matters in dispute, preparing legal documents and representing the accused in court – This is available to those who satisfy the means test. VLA also considers other matters such as whether helping the accused can benefit them and the public, and whether the matter has merit  The means test is the test applied by VLA to determine whether an applicant qualifies for legal assistance or representation in court (beyond the services of the duty lawyer on the day). It considers income, assets and expenses. If an accused is receiving more than $360 per week in income after living expenses are deducted, then they are not eligible under the means test. However, if VLA denies an accused person of legal assistance, they can apply to have the decision reviewed by an independent reviewer. A decision made by the independent reviewer can then be appealed to the Supreme Court of Victoria Section 197 of the Criminal Procedure Act 2009 (Vic) gives the courts power to adjourn a trial until legal representation from VLA has been provided For example of VLA refusing to provide legal assistance because helping the accused would not benefit the public, Bayley v Nixon and Victoria Legal Aid (2015) and Bayley v The Queen (2016)  Bayley requested leave to appeal to the Court of Appeal against the convictions in two of the three trials and the sentences imposed in all three trials. He applied to VLA for legal assistance. His application was refused and he asked for a review of the decision of VLA leading to the independent reviewer confirming the decision of refusal to legal assistance noting that the public needed to be confident in VLA and that it was unreasonable to provide Bayley with legal assistance. Bayley obtained free legal assistance and appealed the reviewer’s decision to the Supreme Court of Victoria. Justice Bell noted that the provision of legal aid is closely connected with human rights, and that legal aid can be critical for people who are seeking vindication of their rights through the legal process. Justice Bell found that it was unlawful to reject an application for legal assistance on the sole ground that the person is ‘a notorious and unpopular individual who has already been convicted of and sentenced to heinous crimes’. He concluded that the review was invalid and that Bayley’s application should be heard before a different reviewer. Bayley filed a second application with VLA, but that application was also refused. Pro bono lawyers ultimately represented him at his appeal in o

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relation to the sentences and convictions. On 13 July 2016 the Court of Appeal handed down its decision and fixed a new non-parole period of 40 years, reducing Bayley’s sentence by three years. In handing down its decision the Court of Appeal said: ‘Legal aid was, we were told, declined for the preparation and presentation of the applications in this Court. We were not told why that was so. In our opinion, that decision was regrettable. The applicant’s case required the assistance of experienced and competent counsel. He was in no position adequately to represent himself. Any proper appraisal of the available material would have made it abundantly clear that, at worst, the applicant had a strongly arguable case for acquittal in relation to the convictions that he sustained in the first trial. As regards the third trial, his application, though ultimately unsuccessful before this Court, was at least arguable’ 

Victorian community legal centres o Community legal centres are one type of independent legal assistance service provider in Australia that gives free legal services, including advice, information and representation to those who are unable to access other legal services. o There are two types of community legal centres:  Generalist CLC’s – which provide broad legal services to people in a particular local geographical area  Specialist CLC’s – which focus on a particular group of people or area of law o Those who are prioritised include those who have a disability or mental health issues, refugees, people in domestic violence situations, the homeless, young people and those who cannot afford a lawyer o Assistance includes:  Basic legal information – CLC’s provide basic legal information on a day-today basis, some of which is online  Initial legal advice – CLC’s provide legal advice and information such as preliminary assistance, and help with writing short letters and completing forms. CLC’s offer a free legal advice service that allows people to visit the CLC without an appointment. Phone advice is also available  Duty lawyer assistance – Duty lawyers provide advice or representation...