Legal Revision: Summary and Indictable Offences and Criminal Justice System

The distinction between summary offences and indictable offences Summary offences Offences are classified according to their level of seriousness. Summary offences are minor criminal offences such as drink driving, driving an unregistered vehicle or disorderly conduct. Many of these are listed in...

The distinction between summary offences and indictable offences Summary offences Offences are classified according to their level of seriousness. Summary offences are minor criminal offences such as drink driving, driving an unregistered vehicle or disorderly conduct. Many of these are listed in the *Summary Offences Act 1966* (Vic). Hearings for summary offences are generally held in the Magistrates' Court. Juries are never used in the Magistrates' Court. The majority of offences committed in Victoria are summary offences. Indictable offences are serious criminal offences such as murder, culpable driving causing death or drug trafficking. Most of these are listed in *Crimes* *Act 1958* (Vic). Trials for indictable offences are normally held in the County Court or the Supreme Court before a judge and jury. Summary offences Trials for certain minor indictable offences can be heard summarily in the Magistrates' Court. An indictable offence may be tried summarily IF \- The offence has a penalty not exceeding 10 years imprisonment -The court and accused agrees to have the case heard summarily The accused will almost always prefer this option as the hearing will be quicker and cheaper. Additionally, 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. 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) - - - - Committal hearings - - - - - Question 2 (2023 exam) Explain one difference between and indictable offence and a summary offence. (3 marks) Question 1 Guy was the victim of an attack by Tom. He suffered significant injuries, including a fractured eye socket and a broken nose. Tom was charged with intentionally causing serious injury, a crime that carries a maximum penalty of 20 years' imprisonment. He pleaded guilty at the committal hearing and was sentenced by the County Court to four years' imprisonment. Guy's injuries required significant medical treatment, including major surgery. He is now unable to work. Guy wants to take civil action against Tom to recover the cost of his medical treatment and \$150000 in loss of earnings. He is unable to afford legal representation and has been researching how to represent himself in court. Guy believes the pre-trial procedures will add to the time it will take to have the case heard. He does not understand why these procedures are needed. a\. Was Tom charged with a summary offence or an indictable offence? Give one reason for your answer. 3 marks Question 1a.\ For full marks, students needed to state that Tom was charged with an indictable offence, and detail one reason why, with reference to the stimulus material. Many responses stated that Tom was charged with an indictable offence. The main error made was that their one reason for this was not clear. Some responses gave multiple reasons but did not give enough detail for the first one to obtain full marks. Other responses did not make the link between the reason and the information in the stimulus material. For example, some responses stated only that Tom was charged with an indictable offence because his case was heard in the County Court. The response needed to also state that this must mean that Tom was charged with an indictable offence because the County Court only sentences people charged with committing an indictable offence. Reasons: - - - - - - *Please note, this is new wording in the study design. We now have key principles of [the criminal justice system], AND the [principles of justice]* These are DIFFERENT THINGS. The burden of proof means the responsibility/job of establishing and proving the facts of the case. In a criminal case, the burden of proof is on the prosecution. The prosecution is accusing the alleged offender of committing the crime, so the prosecution has the job of establishing the relevant facts. 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 The standard of proof is the level of evidence required to prove the case. In a criminal matter, the required standard is beyond reasonable doubt. While this term is not defined in legislation, it can be taken to mean the absence of any doubt that is realistic - there is no other logical or reasonable conclusion that can be reached In other words, in order for Jack to be found guilty of attempted murder, the prosecution must be able to prove to the jury that there is no other possible explanation of the crime - - What does this mean for Jack? Jack cannot have previous convictions brought up during a trial (this may bias the jurors) The news cannot refer to Jack as an 'offender' -- he must be an 'alleged' offender until the time he is found guilty - - - - - - - Generally, an accused person has the right to be granted bail by police, bail justice, magistrate or judge unless there are reasonable grounds for refusing it. The *Bail Act 1977* outlines the circumstances in which bail may be refused. These include situations where: - - - - - Would Jack be granted bail? - - - - - - - The Rights of the Accused The study design requires that you know and understand the 'Rights of the Accused.' - The study design specifies that you know; - - - Because these are the only specified, I won't confuse you by adding more. How do we provide for it? The *Criminal Procedure Act 2009* (Vic) creates time limits for the start of trials. If an accused is charged with an offence other than a sexual offence, the trial must start within 12 months of the day on which the person is committed for trial. -Bail What does this mean? The *Charter of Human Rights and Responsibilities Act 2006* (Vic) requires a person who is arrested or detained on a criminal charge to be promptly brought before a court and be brought to trial without unreasonable delay. A reasonable delay will depend on the legal issues involved and the complexity of the case and can include time to find witnesses, gather evidence & extenuating circumstances such as a global pandemic - - *\*It may be worth noting that this is not the case in all countries. In many places, and individual can be imprisoned indefinitely without a trial.* What does this mean? 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 does not need to answer any questions (other than give their name and address) to police, or during a trial. How do we provide for it? Juries are directed not to make inferences because an accused remains silent, does not defend themselves, or does not give any statements If an accused is silent, they cannot be pressured into making a confession due to a power imbalance between themselves and the prosecution or police Reinforces that the burden is on the prosecution to prove the case beyond reasonable doubt -- it is NOT up to the accused to prove their innocence What does it mean? - How do we provide for it? - - - - - - - - Sam is charged with moderate range drink driving. His trial commences in the Supreme Court. Sam applies for Legal Aid, but is denied representation on the basis that he has full-time job and \$20000 in savings, so can afford his own legal representation. The judge considers the facts of the case and determines that Sam is guilty of the offence. Sam considers appealing the verdict as he believes he has been denied procedural fairness by not receiving legal representation through legal aid. He did not understand the trial process as an unrepresented defendant. The Court of Appeal follows the precedent set in Dietrich v The Queen in determining that he did not have a fair trial. 1. 2. 3. THE RIGHTS OF VICTIMS - - - - - Rights available include, but are not limited to: Rights of the victims in Victoria are covered mainly by the following two Acts of parliament Give evidence using alternative arrangements Be informed about the proceeding Be informed of the likely release date of the accused [[*Victims charter Act 2006* (Vic)]](http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/LTObjSt6.nsf/DDE300B846EED9C7CA257616000A3571/708C1624FE7C8EB9CA257981000DA419/%24FILE/06-65aa011%20authorised.pdf) [[*The Criminal Procedure Act 2009* (Vic)]](http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/5E48BD2A65EA4DA3CA2575750009099E/%24FILE/09-007a.pdf) *Criminal Procedures Act 2009* (Vic) - - - - - - - - - - - - - - - - - The Victims' Charter recognizes those who have been adversely affected by crime. They must be entitled to: - - - - - - - - - - - - A person who is a victim of a criminal act of violence may apply to be placed on the victims' register. Information they are entitled to includes: - - Criminal Acts of violence include: - - - - - - - - - - - Find a victim impact statement and mention what sort of things that the victim wanted taken into account during sentencing. Share back with the class - a. b. The principles of justice: Fairness, Equality and Access The concept of 'justice' is difficult to define as: - - In determining whether justice has been achieved in a case, three principles of justice can be considered: - - - Fairness involves being treated impartially/justly. It applies to the *participation* and the *processes* involved in the criminal justice system. Fairness should ensure that an accused person: - - - *The criminal justice system ensures fairness through:* - - - - - - - - *The criminal justice system ensures equality through* - - - - - - - - - *The criminal justice system ensures access through* - - - - - Fairness: all people can participate in the justice system and its processes should be impartial and open Equality: all people engaging with the justice system and its processes should be treated in the same way; 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 Access: all people should be able to engage with the justice system and its processes on an informed basis *Note; when defining/describing the POJ, try to use synonyms e.g. you wouldn't say 'fairness is about being treated fairly' as that doesn't explain anything, it just restates the word.* - - - - - - - How do you think Jack's circumstances might impact on the achievement of the principles of justice? Discuss with the person next to you. The role of Victoria legal Aid and Community Legal Centres in assisting an accused and victims of crimeWhy is legal assistance important FOR THE ACCUSED Legal assistance is linked to the right to a fair trial for an accused person -- but why? - - - - - - 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, and from this case, a judge or magistrate must 'stay or adjourn' a case for the accused to seek legal advice. Everyone needs legal representation Many people who can afford it, will pay for it. Groups within the community who may need extra assistance with legal representation include: - - - What is Victoria Legal Aid? Pursue innovative means to provide legal aid Provide legal aid Provide community with improved access to justice and remedies Manage its resources Types of legal aid -- who gets what? - - - - - Introduction to Community Legal Centres - - - - - Role of CLCs - - - +-----------------------------------+-----------------------------------+ | Assistance | Description | +===================================+===================================+ | Basic legal information | Basic legal information on a | | | day-to-day basis. Much of this is | | | provided online | +-----------------------------------+-----------------------------------+ | Initial Legal advice | - - | +-----------------------------------+-----------------------------------+ | Duty lawyer assistance | Advice or representation in court | | | for urgent matters that will be | | | completed in one day | +-----------------------------------+-----------------------------------+ | Legal casework | Very rarely will CLCs take on a | | | criminal matter as these involve | | | legal representation and require | | | ongoing assistance. Each CLC have | | | their own eligibility | | | requirements and many do not | | | offer legal representation or | | | assistance for indictable | | | offences | +-----------------------------------+-----------------------------------+ - - - - - - Similarities Differences ---------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Both CLCs and VLA provide a range of free legal assistance to anyone seeking to access it, including online. VLA can provide legal assistance and representation for indictable offences, but CLCs very rarely provide legal assistance for indictable offences Many CLCs use the VLA means test as a way to decide whether they should provide legal assistance for a case, and will prioritise vulnerable groups such as refugees. When taking on cases, VLA have a generalised means test. Each CLC has their own eligibility requirements when taking on casework -- which may or may not be the same as VLA. Both CLCs and VLA provide duty lawyer assistances for some cases. CLCs ordinarily operate from a physical office where legal advice can be given on the spot; VLA does not operate in this way where people can come without an appointment, though advice can be given over the phone. VLA and CLCs both exist to serve people who would not be able to afford a lawyer. VLA exists to serve anyone looking for legal advice or assistance; specialist CLCs provide legal advice or assistance only to a certain group of people. Both are funded by state and Commonwealth governments There is one single VLA that operates out of various offices across Victoria, but there are about 50 CLCs, all of which have a different focus in terms of specialty area, or geographical location. - - - - Question 1 (2 marks) 2020 exam - Question 2 (3 marks) 2018 sample - Would here elaborate on how CLC's are available to assist those who need it most - The legal process can be overwhelming and intimidating for victims. Victims are not considered a party in a criminal case, as the Office of Public Prosecutions prosecutes the accused on their behalf. VLA and CLCs role is to help victims of crime access justice through their support services providing an avenue through the legal proceedings to ensure courtesy, dignity and respect. A close-up of a newspaper Description automatically generatedA diagram of a legal service Description automatically generated with medium confidenceDarcy (Jack's alleged victim) is a well paid member of the Australian Defence Force. - - - - - Indictable offences Indictable offences heard and determined summarily - - - - -