Unit 3 AOS 1 - unit 3 legal notes PDF

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Unit 3 AOS 1 Legal Studies The Victorian Criminal Justice System

Dot Point 1 from the VCAA study design (DP): The principles of justice: fairness, equality and access Key Skill from the VCAA study design (KS): Link to different types of questions Fairness  Fairness: To treat parties in a just and impartial manner, without prejudice.  Fairness doesn’t necessarily involve both parties being treated exactly the same. Sometimes, parties need to be treated differently to be treated fairly. For example, it may not be fair to conduct a trial in a non-Koori court for an Indigenous person convicted of a crime, even though that may be fair for a non-Indigenous person.  In the criminal justice system, people should experience fair processes prior to and after trial, and a fair trial. Equality  Equality: To treat parties the same (not advantageously or disadvantageously), regardless of their personal traits.  Personal traits are things like gender, religion, age, height, occupation and financial status.  Courts must treat parties equally. This means that the law should be applied without unlawful advantage or disadvantage to anyone and processes should be equal. Access  Access: Everyone should have the ability to utilise the criminal justice system.  Access relates to a wide range of things, such as whether people can afford to get justice, find information easily, be closely located to legal institutions, whether the legal system can be used by vulnerable people (e.g. people with disabilities) etc.

Tip: You can be asked to link these principles of justice to your evaluate and discuss questions (more likely) and any other questions (less likely). As you go through this AOS, think about what content can be linked to each principle of justice. 

DP2: Key concepts in the Victorian criminal justice system KS: Define, and apply to actual and/or hypothetical scenarios Summary and indictable offences  Summary offences: Minor, less serious, criminal offences that are heard in the Magistrates’ Court before a Magistrate and no jury. Summary offences don’t have committal proceedings and can be heard without the accused present at their hearing. E.g. Road traffic offences, minor assaults and property damage.

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Indictable offences: More serious criminal offences that are heard in the County or Supreme Court before a judge and a jury. Indictable offences usually have committal proceedings in the Magistrates’ Court and can’t be heard without the accused present at their trial. E.g. Murder, rape and drug trafficking. o Some ‘minor’ indictable offences can be heard summarily if certain criteria are met (e.g. the accused consents), meaning they’re heard in the Magistrates’ Court as if they’re summary offences. Tip: Know the differences between summary and indictable offences as this is testable as per the Legal Studies study design.

Sample Q: Distinguish between summary offences and indictable offences in the criminal justice system. 3 marks A: Summary offences are less serious criminal offences that are heard in the Magistrates’ Court, whereas indictable offences are more serious criminal offences that are usually heard in the County or Supreme Court (unless they’re heard summarily in the Magistrates’ Court). Summary offences are heard before a Magistrate but no jury, whereas indictable offences are heard before a judge/justice and a jury. A hearing involving summary offences can be heard without the accused being present at the Magistrates’ Court, whereas a trial involving indictable offences can only be heard if the accused is present at the County or Supreme Court.

The burden of proof  Burden of proof: Refers to who has the responsibility of proving the accused is guilty  The burden of proof lies on the prosecution in criminal cases  It reverses to lie on the defendant if they’re pleading a defence (e.g. self-defence) or statute says so for the particular situation

The standard of proof  Standard of proof: Refers to the standard or extent that the evidence of the accused’s guilt needs to be proven to  The standard of proof is beyond reasonable doubt in criminal cases. This means that there can’t be a reasonable doubt in the Magistrate’s or jurors’ minds that the accused is guilty. If there is a reasonable doubt that the accused guilty, the Magistrate/juror must give a verdict of not guilty.  Note: The standard of proof can be on the balance of probabilities for some elements of defences that the accused tries to prove, but this depends on specific legislation.

The presumption of innocence  Presumption of innocence: An accused of a criminal case is assumed to be innocent or not guilty of the crime, until they are proven guilty by a Magistrate or jury.  This presumption is upheld in many ways in the criminal justice system. E.g. An accused’s prior convictions of crimes can’t be revealed in a trial until after they’ve been found guilty and are being sentenced. This is so the jury doesn’t jump to the conclusion that the accused is guilty.

Sample Q: Tim has been accused of manslaughter and had his trial at the Supreme Court of Victoria. Before jury deliberations, the justice instructed the jury to find Tim guilty of manslaughter because “Tim’s attitude proves his guilt”. Identify and explain the key concept of the Victorian criminal justice system that has been breached by this justice. 2 marks A: The key concept that has been breached by this justice is the presumption of innocence. The presumption of innocence is the assumption that an accused of a criminal case (in this case, Tim) is not guilty of a crime (manslaughter) until they are proven guilty by a jury. The presumption of innocence has been breached because the justice is presuming that Tim is guilty due to his attitude, before the jury has found Tim guilty.

DP3: The rights of an accused KS: Explain The right to be tried without unreasonable delay  People who have been accused of a crime have the right to have their case heard without unreasonable delays. This means that their case must be heard in a timely fashion.  This right comes from ss 21 and 25 of the Victorian Charter of Human Rights and Responsibilities (a Victorian Act of Parliament that contains rights of Victorians and rules relating to them).  It is unfair to make an accused of a crime wait (either in custody or on bail) wait for their trial for a long time as it may infringe their right to liberty and the presumption of innocence.

The right to a fair hearing  An accused of a crime has the right to a fair or just hearing.  This right comes from s 24 of the Victorian Charter of Human Rights and Responsibilities.  There are several ways in which the right to fair hearing is fulfilled. For example, the judge presiding the case must treat the accused impartially, without discrimination, and ensure the accused has just processes.  The trial should also be open to the public to view, meaning that people from the public (like yourself) can walk into a courtroom and hear the trial. This ensures the public can keep the court accountable in giving the accused the right to a fair hearing. (Note: Sometimes courts have the power to make a particular case not open to the public’s viewing e.g. some sexual offence cases)

The right to trial by jury  Accused persons of criminal cases have the right to have their trial heard by a jury for indictable offences.  This right is important because the accused is tried by members of the community who are their peers (instead of legal professionals).  This right comes from s 80 of the Australian Constitution (but this right from the Constitution is limited because it only applies to indictable offences under Commonwealth law) and the Criminal Procedure Act 2009 (Vic) (for indictable offences under Victorian law).  This right isn’t given to someone accused of a summary or indictable offence heard summarily, or to an accused who pleads guilty (they just have a sentencing hearing).

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The jury is made up of usually 12 jurors for criminal cases and they reach a verdict of guilty or not guilty.

Sample Q: Explain one right that an accused of a criminal case has in the criminal justice system. 3 marks A: One right that an accused has is the right to a fair hearing. This means that the accused must receive a just hearing by a just court. This right comes from s 24 of the Victorian Charter of Human Rights and Responsibilities. There are several ways in which the right to fair hearing is fulfilled. For example, the judge presiding the case must treat the accused impartially, without discrimination, and ensure the accused has just processes. The trial should also be open to the public to view, to ensure that people can check that the court is giving the accused the right to a fair hearing (accountability). (Sometimes courts have the power to make a particular case not open to the public’s viewing though e.g. some sexual offence cases.)

DP4: The rights of victims KS: Explain The right to give evidence as a vulnerable witness  If a victim is a witness of the crime that victimised them, they may be required to give evidence to court. These victims have a right to give evidence in certain ways to minimise trauma and the possibility that they get flustered and provide unreliable evidence to the court, especially if they’re a vulnerable witness (e.g. sexual offence or family violence case).  These protections for victims are from the Criminal Procedure Act 2009 (Vic) and the Evidence Act 2008 (Vic).  Examples of protections: The victim being video streamed into the courtroom whilst giving evidence instead of physically attending the trial, the victim having someone to support them whilst they give evidence, screens put in between the victim and accused to prevent them from seeing each other, a non-open (public) courtroom, the victim not being crossexamined by the accused but by their legal representative if they’re classified as a protected witness, not allow improper questions to the victim (questions that are intimidating, rude, embarrassing or confusing) etc.

The right to be informed about the accused’s proceedings  The victim has the right to be given information about the accused’s proceedings (what occurs prior to the accused’s trial, during the trial and after the trial).  This right is from ss 7-9 of the Victims’ Charter Act 2006 (Vic).  Victims will be told a range of things about the accused’s proceedings, as long as it doesn’t interfere with investigations and the victim is okay with receiving the information.  Examples of what the victim is informed about: The progress of the police’s investigations into the crime, the offences charged against the accused (if any), notification that they can attend their accused’s hearing, how to access the details of the accused’s hearing, the outcome (end result) of the accused’s hearing and other proceedings, whether the accused or prosecution has decided to appeal etc.

The right to be informed of the likely release date of the accused  Victims of a criminal act of violence (e.g. rape, kidnapping, stalking, dangerous driving causing death or serious injury) on the Victims Register (a Victorian database) have the right to be told when a related offender will be released from prison and/or released on parole, at least 14 days before the prisoner is released.  This right is from s 17 of the Victims’ Charter Act 2006 (Vic).  These people who have been victims of acts of violence have a right to know this out of respect for their safety and fears, and because the offender will no longer be imprisoned away from normal society (and the victim him/herself).

Sample Q: Explain the victim’s right to be informed of the likely release date of an accused. 2 marks A: A victim on the Victims Register has the right to be given information about when a prisoner involved in the crime they were victimised in will be released from prison and/or released on parole, at least 14 days before the prisoner is released. This right is from s 17 of the Victims’ Charter Act 2006 (Vic). This right respects the victim’s safety and informs them that the offender will be back in society with them.

DP5: The role of institutions to assist an accused KS: Explain Victoria Legal Aid (VLA)  Victorian Legal Aid (VLA) is a governmental institution that provides free to low cost legal representation to Victorians who can’t afford representation, as well as free legal advice and information to the community.  The general role of the VLA is to provide free or low cost legal services (i.e. legal aid), including information about the legal system and legal representation in court, to Victorians in the community who otherwise can’t afford legal services. This enables people to access justice.  Other roles of the VLA: To make recommendations about law reform to the Victorian Government, control the Legal Aid Fund (where the VLA mainly gets their money from) and to run educational programs to educate the community about the legal system.  The VLA provide free legal information on their website (https://www.legalaid.vic.gov.au/) on a variety of topics and free legal advice over the phone, in person or via a video call.  The VLA also provide free duty lawyer services, which is where a duty lawyer working for the VLA can give legal advice and/or legally represent an accused in the Magistrates’ Court or Children’s Court for their hearing that day. Most people have to satisfy the income test (prove that they have limited income) to gain these services.  The VLA also provides full legal assistance to accused’s who past the means test (assesses the accused’s income, assets and expenses). If they gain legal assistance, a VLA lawyer may give them advice, prepare their legal documents and/or represent them in court (can be longer than a day trial).

Community legal centres in Victoria  Community legal centres (CLCs) are independent legal services that provide free legal advice and information to people in the community and in some cases, legal representation at court.  The general roles of CLCs are to provide legal advice and information to people in the community (via their websites or in person – can be very specific to their situation if in person), provide free duty lawyer services or provide free legal representation in rare circumstances.  Generalist CLCs provide legal services on a wide range of issues to a particular area in Victoria (e.g. Monash Oakleigh Legal Service), whereas specialist CLCs focus on a particular demographic or area of law (e.g. Animal Law Institute).  CLCs get their funding from the Commonwealth Government, Victorian Government and private donations.  CLCs help average people in the community (like yourself or your friends) who wouldn’t know what exactly to do if they got charged with an offence and can’t afford a lawyer to tell them what to do.

Sample Q: Jenny is a 30 year old woman who got charged with a hefty speeding fine last week. Since she has never got a speeding fine this big before, she is unsure of how to pay it and whether she can dispute it. Explain the role of community legal centres in assisting Jenny. 3 marks A: Community legal centres (CLCs) are independent legal services that provide free legal advice and information to people in the community and in some cases, legal representation at court. The general roles of CLCs are to provide legal information to the community person, provide free duty lawyer services or provide free legal representation in rare circumstances. A CLC would be able to assist Jenny by Jenny looking up information about speeding fines on their website, or seeing the CLC in person to gain legal advice on how to pay the fine and whether she can dispute it. If Jenny decides to dispute the fine in court, the CLC may be able to provide her a free duty lawyer service since her case would be heard in less than a day.

DP6: The purposes of committal proceedings KS: Explain, and discuss and justify Committal proceedings  Committal proceedings: A criminal pre-trial procedure with hearings and processes in the Magistrates’ Court for an accused charged with an indictable offence who has pleaded not guilty.  The main stage of the committal proceedings is the committal hearing.

Purposes of committal proceedings  Main purpose: A Magistrate determines whether a prima facie case exists at the committal hearing – meaning whether there’s evidence of sufficient weight to support a conviction by jury at trial. If there is, the accused will face trial in the County or Supreme Court. If there’s not, then the accused will be acquitted.

Other purposes of committal proceedings as set out in the 2012 VCAA Examiner’s Report:  To determine whether an indictable offence is appropriate to be heard summarily in the Magistrates’ Court (for the actual hearing)  To ensure that the prosecution case is adequately disclosed  To enable the accused to hear the evidence against them and to cross-examine the witnesses  To enable the accused to put forward a case at an early stage  To enable the issues in contention to be adequately defined

Discuss and justify the appropriateness of committal proceedings as a mean used to determine a criminal case Strengths Committal proceedings filter cases without prima facie (cases with insufficient evidence) out of court, and clarify issues before going to trial. This is a strength as they help save the time and resources of higher courts and prevent a case with flimsy evidence going to a full trial and wasting time. Committal proceedings give the accused the opportunity to become aware of the prosecution’s case against them. During the committal hearing, they can hear the prosecution’s evidence and examine their witnesses. This is a strength as it aids fairness by giving the accused the opportunity to prepare their best case/rebuttal possible. Committal proceedings give the prosecution the opportunity to combine or withdraw charges against the accused. This is a strength because it provides an opportunity for the accused to not be charged with as many offences and saves the time of higher courts at trial.

Committal proceedings uphold the presumption of innocence because the prosecution has the responsibility at the committal hearing to prove that the accused has evidence of sufficient weight to be found guilty. This is a strength as committal proceedings uphold the rights of the accused and a foundation of our legal system.

Weaknesses Committal proceedings add to delays already experienced. They’re an extra stage that needs to be passed before the case goes to actual trial. This is a weakness as it drags out reaching the outcome of a case, hindering the timely resolution of disputes and adding to court backlogs. Committal proceedings are extremely complex. Due to this, an inexperienced or unrepresented accused would be unable to utilise the opportunity to discover the case against them. This is a weakness as an accused at a disadvantage would not be on equal ground to an experienced prosecutor, hindering equality. Committal proceedings add to the costs, stress and inconvenience of those involved in the case. The accused has to pay more costs and may be more stressed, and any victims of the crime are waiting even longer for an outcome. This is a weakness as committal proceedings cause unnecessary costs and trauma to those involved in the crime. Committal proceedings are a waste of time for cases that are likely to have evidence of a sufficient weight to convict the accused at trial. Perhaps committal proceedings should be skipped for most indictable offence cases. This is a weakness because committal proceedings waste the parties’ time and add to court backlogs.

DP7: The purposes and appropriateness of plea negotiations and sentence indications in determining criminal cases KS: Explain, and discuss and justify

Plea negotiations  Plea negotiation: A discussion between the prosecution and the accused, with the aim of agreeing on certain charges for the accused to plea...