Criminal Prosecution and Offences

Prosecution

• The party that starts criminal proceedings against an accused person on behalf of the state.

Offences

• Summary offence: A minor offence, generally heard in the Magistrates’ Court under the Summary Offences Act 1966 (Vic).
• Indictable offence: A serious offence, generally heard before a judge and jury in the County Court or Supreme Court of Victoria under the Crimes Act 1958 (Vic).
• Indictable offences heard summarily: Serious offences dealt with as summary offences if the court and accused agree.

Differences Between Summary and Indictable Offences

• Seriousness: Summary offences are minor, while indictable offences are serious.
• Courts: Summary offences are heard in the Magistrates’ Court, while indictable offences are heard in the County Court or Supreme Court.
• Acts: Summary offences are governed by the Summary Offences Act, while indictable offenses are governed by the Crimes Act.

Committal Proceeding

• Pre-trial hearings and processes held in the Magistrates Court for indictable offences.
• Committal hearing: A court hearing within the committal proceeding where a magistrate decides if there is sufficient evidence to support a conviction.
• Committal proceedings don't exist for summary offences.

Purposes of Committal Proceedings

• Prevent inadequate evidence from going to trial.
• Allow the accused to plan their plea.
• Disclose the prosecution case to the accused for a fair trial.
• Allow the accused to present a case early and cross-examine witnesses.

Costs of Trials and Court Processes

• Taxpayers fund courts, prosecution, and legal aid.
• Defendants pay for private lawyers if they don’t qualify for legal aid.
• Convicted offenders may cover costs like fines or victim compensation.

Principles of the Criminal Justice System

Burden of Proof

• The obligation of a party to prove a case.
• Usually rests with the party who initiates the action (prosecution or plaintiff).

Standard of Proof

• The level of certainty or strength of evidence required to prove a case.
• Beyond a reasonable doubt: The standard in criminal cases, requiring the prosecution to prove there is no reasonable doubt the accused committed the offence.
• Balance of probabilities: The standard in civil disputes, requiring the plaintiff to establish that their claim is more likely true than not.

Presumption of Innocence

• The right of an accused person to be presumed not guilty unless proven otherwise, as per the Charter of Human Rights and Responsibilities Act 2006 (Vic).
• Features that uphold the presumption of innocence:
  • Right to silence.
  • Police must have reasonable belief a person committed a crime.
  • Prior convictions cannot be revealed until sentencing.

Principles of Fairness, Equality, and Access

• Fairness: Requires impartial processes and open trials.
• Equality: Requires the same treatment, with measures to address disparities.
• Access: Requires people to be well-informed of their rights and able to engage with the system.

Rights of an Accused

Human Rights Charter

• Sections 23 to 27 outline the rights of an accused.
• The charter aims to protect and promote human rights as per the Human Rights and Responsibilities Act 2006 (Vic).

Right to Be Tried Without Unreasonable Delay

• S21 (5) of the Human Rights Charter entitles an accused to have their charges heard in a timely manner, with delays only if reasonable.
• Reasonableness depends on the complexity of the case and legal issues.
• Due to the impact a trial can have on a child, it should be heard ‘as quickly as possible’ instead of ‘without reasonable delay’.

Right to Silence

• The right to refuse to answer questions or give information during an investigation.
• Cannot be forced to give evidence, answer questions, file any defense, or call a witness.
• Must always give name and address to police.
• Protected by common law and statute law, including S89 of the Evidence Act 2008.

Right to Trial by Jury

• The right to have a person’s peers decide the outcome of the case, providing community participation.
• Protected in the Juries Act (for state indictable offences) and S80 of the Australian Constitution (for Commonwealth indictable offences).
• State indictable offences require a jury of 12, with additional jurors possible.
• Commonwealth indictable offences entitle anyone charged to a trial by jury.

Rights of Victims

Victim

• A person who has suffered directly or indirectly as a result of a crime.

Victims’ Charter

• Recognizes the impact of crime on victims and provides guidelines for informing victims.
• Aims to reduce the likelihood of secondary victimization as per the Victims’ Charter Act 2006 (Vic).

Definition of ‘Victim’ Under the Victims’ Charter

• A person who has suffered due to a criminal offence.
• A family member of a person who has died due to a crime.
• A family member of someone under 18 or with a mental impairment.
• Under 16 who has been groomed for sexual conduct.

Right to Give Evidence Using Alternative Arrangements

• The Criminal Procedure Act 2009 (Vic) allows alternative arrangements to protect certain witnesses.
• Alternative arrangements:
  • Giving evidence from a place other than the courtroom.
  • Screens to remove the accused from direct line of vision.
  • Support person for emotional support.
  • Restrictions on who is allowed in the courtroom.
  • Legal practitioners not wearing formal robes and seated.
• Aims to reduce trauma and intimidation for witnesses.

Right to Be Informed About Proceedings

• Victims’ Charter requires the prosecution to provide victims with details of the offences charged, hearing dates, outcomes, and appeal details.
• Victims are entitled to attend court hearings.

Right to Be Informed of Likely Release Date

• Victims’ Register: Provides victims of violent crimes with information about adult prisoners.
• Victims will know about the release of the prisoner on parole 14 days before release
• Victims have the right to know the length of the sentence, to be told if offender escapes, and to make a submission if prisoner may be released on parole.

Victorian Legal Aid (VLA)

• A government agency providing free legal information, advice, and representation to those who can’t afford a lawyer.
• Priorities people who need it the most and can’t get legal assistance any other way.
• VLA's Objectives:
  • Provide legal aid effectively and economically.
  • Manage resources equitably.
  • Improve access to justice.
  • Minimise the need for individual services.
  • Ensure coordination of information.

Types of Assistance for Accused People

• Free Legal Information: About the law, court processes, and legal principles.
• Free Legal Advice: Including the Help Before Court service and duty lawyers.
• Duty Lawyer: A VLA lawyer at court to help people on a particular day.
• Grants of Legal Assistance: For people who can't afford a lawyer.

Income Test vs. Means Test

• Income Test: Determines eligibility for duty lawyer representation.
• Means Test: Determines eligibility for grants of legal assistance.

Types of Assistance for Victims of Crime

• Free legal information for understanding rights and processes.
• Assistance with protection orders and financial compensation.
• Duty lawyer services for personal safety intervention orders.
• Grants of legal assistance for financial aid or intervention orders.

Strengths and Weaknesses of VLA

• Strengths: Free legal information, prioritization of vulnerable individuals, multilingual information, online access.
• Weaknesses: Limited information for indictable offences, resource constraints, reliance on awareness and technology access.

Community Legal Centres (CLC)

• Independent organizations that provide free legal services.
• Generalist CLCs: Provide a broad range of legal services in a specific area.
• Specialist CLCs: Focus on a particular group or area of law.
• Funding: Funded by VLA through Commonwealth and state funding, with volunteer assistance.

Role of CLCs

• Provide information, advice, and ongoing assistance to accused.
• Offer legal education to the community.

Types of Assistance for Accused People

• Basic legal information and legal education.
• Legal advice and assistance with applications.
• Ongoing casework, though often only for minor criminal matters.

Considerations When Assisting an Accused

• The type of legal matter.
• Availability of other assistance.
• Likelihood of success.
• CLC availability.

Types of Assistance for Victims of Crime

• Basic legal information and details on financial assistance.
• Legal advice and assistance with applications.
• Duty lawyer services for protection orders.
• Ongoing casework for assistance or intervention orders.

Strengths and Weaknesses of CLCs

• Strengths: Free information, multilingual services, community education.
• Weaknesses: Insufficient funding, limited assistance for indictable offences and victims, staff shortages.

Plea Negotiations

• Pre-trial discussions aimed at resolving a case by agreeing on an outcome.
• May involve pleading guilty to fewer charges, a lesser charge, or agreeing on the facts.
• Negotiations are conducted on a ‘without prejudice’ basis.
• Victim's views should be taken into account during plea negotiations

Purpose of Plea Negotiations

• Ensure certainty of outcome.
• Save costs, time, and resources.
• Achieve a prompt resolution without the stress of a trial.

Advantages

• Reduced sentences for the accused.

Appropriateness

• Depends on factors like cooperation, strength of evidence, willingness to plead guilty, representation, witness availability, consequences of a trial, and victim views.

Strengths and Weaknesses of Plea Negotiations

• Strengths: Prompt resolution, trauma reduction, cost savings, outcome certainty.
• Weaknesses: Lack of transparency, avoidance of proving guilt, victim’s input not considered, pressure on self-represented, failure to engage early.

Victorian Court Hierarchy

• Courts are ranked based on the severity and complexity of the cases they hear.
• Jurisdiction: The lawful authority to decide legal cases.
  • Original jurisdiction: The power to hear a case for the first time.
  • Appellate jurisdiction: The power to review a decision.

Reasons for a Court Hierarchy

• Specialization: Courts have expertise in specific areas.
  • Court of Appeal: Specializes in indictable offences and sentencing principles.
  • Supreme Court (Trial Division): Specializes in serious indictable offences.
  • County Court: Expertise in particular types of indictable offences.
  • Magistrates’ Court: Expertise in summary offences.
• Appeals: Allows a party to challenge a decision in a higher court.
  • Appealing on question of law (law has not be followed e.g. inadmissible evidence allowed(
  • Appealing on a conviction (only appealed by offender)
  • Appealing the severity (or leniency) of a sanction imposed
  • Prosecutors cannot appeal an acquittal (accused person has been found NG)

Strengths and Weaknesses of Court Hierarchy

• Strengths: Specialization, appeals.
• Weaknesses: Confusion for those unfamiliar with the system, restricts ability of accused to access the appeal hierarchy, particular the self-represented.