Victorian Courts & Offences

• Offences are classified according to their level of seriousness.

Summary Offences

• Minor criminal offences, examples include:
  • Drink driving
  • Driving an unregistered vehicle
  • Disorderly conduct
• Many are listed in the Summary Offences Act 1966 (Vic).
• Hearings are generally held in the Magistrates' Court; juries are not used.
• The majority of offences committed in Victoria are summary offences.

Indictable Offences

• Serious criminal offences, examples include:
  • Murder
  • Culpable driving causing death
  • Drug trafficking
• Most are listed in Crimes Act 1958 (Vic).
• Trials are normally held in the County Court or the Supreme Court before a judge and jury.
• Trials for certain minor indictable offences may be heard summarily in the Magistrates' Court if:
  • The offence has a penalty not exceeding 10 years imprisonment
  • The court and accused agrees to have the case heard summarily
• Committal hearings are used when the accused pleads not guilty to an indictable offence.
• The accused will almost always prefer this option because the hearing will be quicker and cheaper.
• In many cases, the maximum penalty that can be imposed by the Magistrate will be lower than that which could be imposed by a County Court or Supreme Court judge.
• Purpose of committal hearings:
  • Determine if an indictable offence can be heard and determined summarily
  • Allow parties to present their case
  • Help the magistrate decide whether there is evidence of sufficient weight to support conviction
  • If yes, commit the person to stand trial at a later date in a higher court

Examples of indictable offences able to be tried summarily

• Recklessly causing serious injury
• Obtaining property by deception (under $100,000)
• Theft, robbery, and burglary (under $100,000)

Burden of Proof

• The responsibility of establishing and proving the facts of the case.
• In a criminal case, the burden of proof is on the prosecution, because they are accusing the alleged defender.
• In other words, if the police and prosecution are charging Jack with attempting to murder his sister by cutting her car brakes, it is up to the prosecution to PROVE to the jury that Jack has committed the crime – Jack does NOT have to prove his innocence.

Standard of Proof

• Level of evidence required to prove the case.
• In a criminal matter, the required standard is beyond reasonable doubt:
  • Absence of any doubt that is realistic
  • No other logical or reasonable conclusion can be reached
• To find Jack guilty of attempted murder, the prosecution must prove to the jury there is no other possible explanation of the crime.
• The right of a person accused of a crime to be presumed not guilty unless proven otherwise.
• This right is protected under the Charter of Human Rights and Responsibilities Act.

Presumption of Innocence

• Jack cannot have previous convictions brought up during a trial (this may bias the jurors).
• The news can't refer to Jack as an "offender"; he is an "alleged" offender until found guilty.

Bail

• A person charged with a criminal offence has the right to apply for bail.
• If bail is refused, they will be detained (remanded) in custody until the case is determined by a court.
• Obvious advantages to being released on bail:
  • Freedom to return to a normal lifestyle and to work
  • The opportunity to prepare for the court case
• Can occur:
  • After an arrest and on being charged at the police station
  • When the accused is before the Magistrates' Court, pending hearing of the charge
  • After conviction, pending an appeal
• People granted bail must sign a bail bond:
  • A form which sets out the date and place of the court hearing
  • Lists conditions on which bail has been granted
• Bail does not always involve a surety.
• Accused person has the right to be granted bail unless there are reasonable grounds for refusing it.
• The Bail Act 1977 outlines the circumstances in which bail may be refused:
  • There is an unacceptable risk because the person may:
    • Fail to appear at the court hearing
    • Commit an offence while on bail
    • Endanger the safety of the public
    • Obstruct the course of justice or threaten witnesses
  • The person has been charged with murder or treason
  • The person has been charged with trafficking or cultivating a drug of dependence, or with importing drugs
  • The person has failed to answer bail previously
  • The person requires protective custody
• The Bail Act 1977 states that the following factors should be considered in determining whether a risk is unacceptable:
  • Nature and seriousness of the offence
  • The character, prior convictions, associations, home environment, and background of the accused
  • The history of any previous grants of bail to the accused
  • The strength of the evidence against the accused

Rights of the Accused

• The study design specifies knowledge and understanding the "Rights of the Accused".
• Pertains to the 'rights' that someone who is accused (but not yet found guilty) of a crime is entitled to in Australia.
• Include:
  • The right to be tried without unreasonable delay
  • The right to silence
  • The right to trial by jury

The Right to be Tried Without Unreasonable Delay

• The Criminal Procedure Act 2009 (Vic) creates time limits for the start of trials.
• For offences other than a sexual offence, the trial must start within 12 months of the day on which the person is committed for trial.
• Reasonable delay depends on legal issues, complexity, time to find witnesses, and gather evidence, including extenuating circumstances.
• A person not yet found guilty should not be 'punished' or have the case hanging over their head for an extended time.
• An accused must have appropriate time to prepare their case and seek legal advice.
• The case must be heard 'reasonably' quickly to prevent unrest in the community.

The Right to Silence

• The presumption of innocence is upheld by the right to silence as an accused does not have to say anything to achieve this presumption.
• An accused need not answer any questions (other than give their name and address) to police or during a trial.
• Juries cannot make inferences because an accused remains silent, does not defend themselves, or give statements.
• Silence of the accused cannot be pressured into making confession.
• Reinforces that the burden is on the prosecution to prove the case beyond reasonable doubt; the accused is NOT required to prove their innocence.

The Right to Trial By Jury

• A jury is a group of people selected at random from society to hear and determine the outcome of a trial.
• Section 80 of the Commonwealth Constitution establishes the right to trial by jury for a Commonwealth indictable offence.
• In Victoria, indictable offences are heard before a judge or magistrate and a jury of 12 citizens.
• A trial by jury ensures our justice system is balanced, people in our community should get a say in how the law is applied.

The Rights of Victims

• In Victoria, victims are broadly categorized as those who:
  • Have suffered because of a criminal offence (primary victim)
  • A family member of a person who has died as a result of a criminal offence
  • A family member of a person under 18 or has a mental impairment, and that person has suffered because of a criminal offence
  • A child under 16 who has been groomed for a sexual offence, and their family
• Rights in Victoria are covered mainly by legislation:
  • Giving evidence using alternative arrangements
  • Being informed about the proceeding
  • Being informed of the likely release date of the accused
• Victims Charter Act 2006 (Vic)*
• The Criminal Procedure Act 2009 (Vic)*
• Criminal Procedures Act 2009 (Vic)*
• A victim may gives evidence in a criminal case.
• Vulnerable witnesses include:
  • Children/persons under 18
  • Those with cognitive impairment
  • Witnesses to sexual assault cases (trauma and injury are significant)
  • Witnesses within violent family cases (trauma and injury are significant)
  • Those 'vulnerable to' formality of the courtroom, the presence of the accused, etc
  • Those likely to suffer added trauma or whose evidence is jeopardized
• Protections help vulnerable witnesses and help to avoid unnecessary contact between the accused and the victim and to lessen the formality of the court (intimidating).
• Alternative arrangements for a particular case (e.g. sexual assault, family violence):
  • Evidence can be given via closed circuit television from a different location.
  • Barristers can stay seated and not dressed in robes when asking questions
  • Screens can be used to remove the accused from the line of vision of the witness
• A witness is declared a protected witness (sexual offence and family violence):
  • Cannot be cross examined by the accused (if unrepresented), only the accused's legal representative.
  • Avoids direct contact between accused and witness
• Special arrangements can be made for sexual offences, child pornography, and indictable assault charges:
  • Accused not in the same room as witness
  • No unauthorized person allowed in the courtroom while evidence is being given
  • Closed circuit must be used to give evidence (witness testimony)
• The Victims' Charter recognizes those who have been adversely affected by crime, entitling them to:
  • Information about the proceeding and the criminal justice system
  • Includes timely, clear, consistent information from police, DPP and Victims Commissioner) about:
    • Support services
    • Possible compensation entitlements
    • Legal assistance available
• Victoria police informs victims, at reasonable intervals, about the progress of the investigation.
• Upon commencement of the prosecution, the prosecution must provide victims with:
  • Details of the offence charged, or reason why no charges have been made
  • Instructions for locating the date, time, and place of the hearing
    • The outcome, including sanction, of the criminal proceeding and details of an appeal (if any)
• A person who is a victim of a criminal act of violence may apply to be placed on the victims' register.
• Information Victims are entitled to includes:
  • The likely date of release
  • Information about likelihood or granting of parole (at least 14 days prior to release)
• Criminal acts of violence include: - Rape and sexual offences, stalking, child abuse, kidnapping and culpable driving causing death
• Victim Impact Statements are an opportunity for the victim to tell the court how he or she was affected by the time. It could include:
  • The emotional impact of the crime
  • such as the victim's loss of enjoyment of life
• the physical impact of the crime
  • such as injuries sustained
• the social impact of the crime
  • such as how the crime has affected the victim's social
• the financial impact of the crime
  • such as any loss earnings or expenses caused by the crime

Principles of Justice (POJ)

• Include Fairness, Equality & Access

Fairness

– all people can participate in the justice system and its processes should be impartial and open.

• Involves being treated impartially/justly and applies to the participation and the processes involved in the criminal justice system.
• Fairness should ensure that an accused person:
  • Knows the case that is being made against them
  • Can present their own case
  • All processes should be impartial and open
• The criminal justice system ensures fairness with: Use of appeals
  • Impartial judge and jury
  • Rules of evidence and procedure
  • Committal hearings

Equality

• all people engaging with the justice system and its processes should be treated in the same way
  • ensures there is no advantage or disadvantage due to financial status
• 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;
• The criminal justice system ensures equality with: Victoria Legal Aid/Community legal centres
  • Interpreters
  • Rule of law

Access

• all people can participate in the justice system and its processes should be impartial and open.
• Individuals can understand their legal rights and can pursue their legal claims in the justice system.
• The criminal justice system ensures access with: Victoria Legal Aid/Community legal centres in providing information
• Legal representation in explaining rights and info

Victoria Legal Aid (VLA)

• Can be contacted to for legal assistance for both the accused and victims of crimes
• Legal assistance is linked to the right to a fair trial for an accused person
• Lawyers, solicitors, and barristers have expertise to deal with the legal system, including: Understanding complex leal terminology
• Questioning witnesses and test evidence to win case
• Develop a case from previous precedent
• What are the rights: what laws are being used against the accused
• The case of Dietrich v The Queen made the common law principle of the right to a fair trial be inclusive of the need for legal representation.
• By law, from this case, a judge or magistrate must 'stay or adjourn' for accused to seek legal advice
• Offers free legal advice and low cost/no cost legal representation
• Focuses on people who need assistance the most, and meeting certain criteria:
  • Pursuing innovative means to provide legal aid
  • Provides legal aid
  • Improved access to justice and remedies
  • Community relations
• Types of legal aid:
  • Free legal information for everyone
  • Free legal advice those who need it most ( low socio, indigenous, migrants, disabled, in custudy)
  • Free duty lawyer(Limited to summary and children's court)— income tested(pension/medicare) or be the most needed
  • Grant legal to represent in court (income and merit tested)

Community Legal Centres (CLCs)

• CLCs provide free legal services, advice, and information representation to low-income individuals and other vulnerable groups
• There are about 50 in Victoria, and focus on the the needy, domestic violetnt, and refugees 2 TYPES:
  • Generalists - Provide legal services within an area
• CLCs focus on people who assistance based of personal. Eg
  • DV. Homes. Refugees etc
• There are elilgbiloty cruiterua
• Role of CLCs
  • ELigibiity critiera to determine who and can assist minor crimnal matters
  • Assistance
  • Legal Information, advice is given(help or in person as required)
  • Also help with filling applications
  • Legal Casework
  • Take legal case on but takes hours for the lawyer(can't take any crime as some lawyers work over time)
• Very really CLCs a criminal matter as these legal and require ongoing assistance and most Dont offer assistance
• Need has to be heard
• Other assistance is need or VLA
• If one has the chance to succeed

Explore the Victorian legal system covering summary and indictable offences, court jurisdictions, and the burden of proof. Understand the roles of the Magistrates', County, and Supreme Courts, and the standards of evidence required for conviction.