Legal Studies: Key Principles of the Criminal Justice System - PDF

Key Principles of the Criminal Justice System -Summary offences are minor criminal offences and are resolved by a Magistrate in the Magistrates Court. Sanctions imposed are small fines or short terms of imprisonment. Summary offences are set out in the Summary Offences Act 1966 (Vic). Examples are...

Key Principles of the Criminal Justice System -Summary offences are minor criminal offences and are resolved by a Magistrate in the Magistrates Court. Sanctions imposed are small fines or short terms of imprisonment. Summary offences are set out in the Summary Offences Act 1966 (Vic). Examples are assault, disorderly conduct, etc. -Indictable offences are serious criminal offences resolved by a judge and jury in the County or Supreme Court. Sanctions are severe and offences are laid out in the Crimes Act 1958. Examples are manslaughter, arson, etc. -Indictable offences heard summarily are less serious indictable offenses that can be heard summarily in the Magistrates Court. Can be heard summarily if punishable by a term not exceeding 10 years prison, the accused agrees and court determines its appropriate. Examples are theft or robbery no more than $100,000. -Burden of proof is the responsibility of a party to prove the case held by the party that initiates the case (prosecution in criminal law). -The standard of proof is the strength of evidence needed to prove a legal case. The prosecution must prove the case beyond reasonable doubt (must be realistic doubt) -Presumption of innocence is the guarantee to accused persons that they are innocent until proven guilty. An accused doesn’t need to prove innocence and can remain silent. Rights of an Accused -The right to be tried without unreasonable delay is the right to the accused to have charges heard in a timely manner and delays should only occur if they are reasonable depending on a range of factors. Protected in the Victorian Charter of Human Rights and Responsibilities 2006. -The right to silence enables the accused to not have to answer questions during an investigation (other than name and address) or during a trial. Not required to give evidence in court, can refuse questions, cannot be forced to give evidence, silence not interpreted as guilt. -The right to trial by jury is if a person is charged with an indictable offence they are entitled to be tried by peers. In S.80 of constitution and Criminal Procedure Act, when an accused pleads not guilty to an indictable offence, jury trials only small percentage of criminal offences.  Rights of Victims -The right to give evidence using alternative arrangements are processes that protect vulnerable witnesses when they are giving evidence in cases of sexual offences or family violence. Alternative arrangements help to relieve stress, trauma and intimidation. Found in Criminal Procedure Act. -The witness may give evidence from a close circuit television , screen to remove the accused from victims, a support person beside the witness, or a legal practitioner may not be dressed in robes. -The right to be informed about proceedings means victims should be knowledgeable about the case they are involved in, achieved through the Victims Charter. The charters require prosecution to give the victim information about details of offence, if no charges are the reason why, how victim can find out time, date and place, outcome of proceedings and details of appeal. -The right to be informed of the likely release date of an offender means a person who is a victim of crime may apply to be on the victims register, enabling them to be notified of release of the offender. The information will be told 2 weeks before release. The Principles of Justice During a Criminal Case -Fairness means all people can participate in the justice system and its processes should be impartial and open. The burden of proof lies with the prosecution, judges, juries and magistrates should be impartial, hearings are public, victims can give victim impact statements, and use lawyers. -Equality means all people engaging in the justice system and its processes should be treated the same way. But if the same treatment causes disadvantages, measures should be implemented to allow all people to engage in a system without disparity. Eg. Translators, specialist courts, alternative arrangements. -Access means all people should be able to engage with the justice system and its processes on an informed basis. Eg. Resolution of case with minimal delay, legal aid, victims informed on proceedings, courts across state.  Victorian Legal Aid and Community Legal Centres -Role of VLA; -VLA is a government agency that provides free legal information to the community, legal advice, and legal representation for people who cannot afford to pay for a lawyer by prioritising fair, just, inclusive society. -VLA aims to provide legal aid in the most effective, economic, and efficient manner. Provide community with improved access. Manage legal aid available at a reasonable cost to the community. -Why do we need VLA & CLC’s; right to receive a fair trial; legal representation for serious cases can’t always be afforded - court can be adjourned until acquired - VLA & CLC’s available when can't afford. -’Legal aid’ is not the same as legal representation in court - free legal information, free legal advice, duty lawyer, help to pay a lawyer. -Victims are not a party in a criminal case and legal aid won't be the same. -Legal aid for accused; –Free legal information - through website, resources, VLA officers - all accused people -Free legal advice - given over phone, in person, from duty lawyer - those need it most -Duty lawyer services - help people at court on day, give info, advice, represent - only in Mag court, not indictable offences, committal proceedings, pass income test, vulnerable prioritised -Grants of legal assistance - people who can't afford help, prepare, resolve matters, given a lawyer - meet means test, consider benefits and disadvantage Types of assistance for victims of crime; - Free legal information - all victims -Free legal advice - victims needing assistance getting financial compensation for loss suffered -Duty lawyer services - to victims most in need (vulnerable prioritised) -Grants to legal assistance - reasonableness test satisfied -Strengths - free legal information available to everyone, free legal advice/assistance for eligible people, information in 30+ languages, online tools for regional people -Weaknesses - info might not be enough for people charged with indictable offences, not everyone eligible, VLA budget means fewer people eligible, not everyone has access if they don't have technology -CLC’s - Centres that provide free quality legal information and can do case work, advice, representation and education for people experiencing disadvantage. Advocating for changes in law. -Generalist CLC is a community legal centre that provides a broader range of legal services to people in a particular geographical area of VIC. -Specialist CLC is a community legal centre that focuses on a particular group of people or law -Role of CLC’s -Provide the accused with information, legal advice, and assistance in a case. Provide legal education to the community for greater awareness and advocate for changes in the system. -VLA funds CLC’s in VIC through commonwealth and state funding, some CLC’s get grants, volunteers assist. Funding is an issue due to demand for assistance, they prioritise people who need help the most. -Types of assistance for accused; -Basic legal information -Legal advice and assistance (can be help writing letters or doing forms, applying for grants) -Ongoing case work (representation) -Types of assistance for victims; -Basic legal information (fact sheets) -Legal advice and assistance -Duty lawyer services (could be seeking family violence protection, or protection order) -Ongoing case work (representation) -Strengths; free legal information available on CLC website, information provided in different languages, free interpreter, educating community -Weaknesses; insufficient funding, some don't assist people charged with indictable offences, not enough staff to meet needs -Difference between CLC & VLA - CLCs are independent, VLA is government funded, VLA operates statewide compared to CLC’s. VLA is primarily funded by the government with a larger budget whereas CLC’s rely on grants and volunteers not located everywhere. VLA primarily serves those who meet eligibility, CLC helps those who might not meet legal aid standards.  Plea Negotiations -Discussions between prosecutor and the accused about charges against the accused. (pre trial discussions) -The aim is to resolve the case by agreeing on an outcome to the criminal charges. Accused pleads guilty in exchange for a concession or agreement by prosecution. - Fewer charges, agreement reached about facts on which plea is based, lesser charges -How they work; -Accused indicates to prosecution willingness to discuss charges -Discussed on a ‘no prejudice basis’ - wont be used against accused in court if negotiations fail -Usually occur when there are multiple charges -Don’t determine sentence and are private -When; can occur at any stage, victims should be consulted -Purposes; -Ensure certainty of outcome - charges must reflect seriousness of wrongdoing -Save cost, time and resources -Achieve prompt resolution to a criminal case without stress, trauma and inconvenience - witness and victims don't have to relive experience When is it appropriate; -In public interest -Accused is willing to cooperate in investigation -Whether there is strong evidence against accused -Whether accused is represented -Witness reluctant to give evidence -Possible negative consequences of a full trial -Time an expense and views of victim Strengths; help prompt determination of case avoiding full trial or hearing proceeding to sentencing, save trauma, inconvenience, victims views are consulted, save cost and resource, certain outcome Weaknesses; is private does not need to be disclosed, could be seen as prosecutor avoiding proving case beyond reasonable doubt, victims don't have final say, self represented party may feel pressure to accept deals  The Victorian Court Hierarchy & Criminal Cases -Courts are ranked on severity and complexity of cases they hear. The Magistrates court at the bottom and the Supreme court (divided into trial and appeal division) is the highest state court. It deals with the most serious indictable offences. -Each court has its own jurisdiction - Original jurisdiction is the power of a court to hear a case for the first time. Appellate jurisdiction is the power of a court to hear a case in which a decision is being reviewed on a particular ground, being appealed to a higher court. -The magistrates court hears summary offences, the county and supreme court hear indictable with supreme court hearing cases of murder or manslaughter. -The high court is a federal court that hears appeals from state courts of appeal, the high court needs to give consent to a party who wants to appeal. Speculation - each court develops expertise -Supreme court of appeal - specialises in determining criminal appeals in appeals in indictable offences, has expertise in sentencing principles -Supreme court trial division - most serious indictable offences developed expertise in the trial process such as giving evidence. -County Court - hearing particular indictable offences (drugs, sexual offences, theft) -Magistrates court - summary cases that need to be dealt with quick and efficiently as well as committal proceedings -Specialist courts - children's court specialises in young people charged with crime. Coroners court investigates death and fires involving suspicious circumstances or unknown cause of death. Appeals; where a party who is dissatisfied with a decision in a criminal case can take matters to a higher court to challenge the decision. Grounds for appeal - appealing on a question of law, appealing a conviction, severity of sanction imposed Consent - Appellant will need consent of court that hear appeal -Strengths; allows specialise in different types of crime, more efficient, allows for appeals -Weaknesses; can be confusing for people who don't understand system, does not allow automatic right to appeal The Roles of Key Personnel in a Criminal Case The Judge & Magistrate -Magistrate in magistrates court for summary and committal proceedings for indictable offences -Judge in county or supreme courts for indictable offences and appeals 1. Act impartially 2.Manage trial or hearing 3.Decide and oversea outcome 4.Sentence an offender Act impartially; -Feature of a fair trial -Ensures public confidence -No bias -No apprehended bias -Applies during entire case Manage trial or hearing; -Correct procedures followed, both parties have equal opportunity to present case -Ask questions of a witness -Make decisions during trial or hearing -Adjusts processes if needed to reduce disparity Decide or oversea outcome; -Magistrate decides whether accused is guilty beyond reasonable doubt -Judge gives direction to jury to ensure fair trial, summarises case, oversea jury verdict Sentence an offender; -Oversea plea hearing - prosecution and defence present info that should be considered when sentencing - victim impact statement -Hand down sentence -May publish sentencing judgement to superior courts Strengths; judge or mag acts impartial, manage hearing process, rules followed, equal opportunity, assist self represented Weaknesses; judge and mag at risk of apprehended bias , lack of diversity, can't overly interfere in case The Jury -Decides the facts which are true, has 12 members, used in county or supreme court when accused has pleaded not guilty, randomly selected, not all community members can be jury members Roles of jury 1.Be objective 2.Listen to and remember the evidence 3.Understand directions and summing up 4. Deliver a verdict Be Objective; -Bring an open mind to task -Put aside prejudices -Not have any connection to parties -Base decisions on fact not bias Listen to and remember the evidence; -Can take notes -Must continue to pay attention while doing so -Must not undertake own investigation Understand directions and summing up; -Directions are given by judge to a jury either during or at the end of a trial -The judge will also sum up the case for jury while deciding the case -Jurors may ask for an explanation of legal points they don't understand Deliver a verdict; -Takes place in the jury room and are confidential -Form a collective opinion as to which party they believe -Undertaken freely and without pressure for other jurors -Decision must be make on facts -Aim to reach unanimous verdict -Majority verdict accepted in some circumstances Strengths- randomly picked, allows people to participate in system, collective decision making, represent community Weaknesses- may have unconscious bias, complex, further delay, not all people can participate Parties -Each party has control over the way the case will run -They comply with —> courts rules, directions, and orders —->any laws imposing duties on parties Roles of prosecution -Has burden of proof -Disclose information to the accused -Participate in trial or hearing -Make submissions about sentencing Disclose information to the accused; -Must disclose all relevant matters to the accused —-> evidence that will be used against accused —--> any material that may assist in accused case -Extends to disclosing any relevant convictions of prosecution's witnesses; gives accused legal representation opportunity to cross examine on things suggesting witness is not credible Participate in trial or hearing; -Present the opening address outlining prosecutions case so jury/magistrate can understand issue and what evidence will be -Present the evidence that supports the case: call witnesses -Cross examination of witnesses called by accused -Present the closing address - evidence based Make submissions about sentencing; -If accused pleads guilty or is found guilty -Submissions can be made at the plea hearing -Prosecutor can inform court about —-> laws that apply, anything about offence related to sentencing -Duty of prosecutor to assist the court with determining the sentence Roles of the accused; -Different to prosecutor as does not have burden of proof, and can choose to remain silent -Participate in trial -Make submissions about sentencing Participate in trial; -Accused has the choice to fully participate in trial or remain silent and do nothing -If they choose to present a defence then the accused will; present an opening address, present evidence supporting case, cross examine witnesses, make closing statement Make submissions about sentencing; -Offender will try to obtain the least possible sentence available -Must not mislead court Strengths- obligation to disclose relevant matters (no trial by ambush), both parties can present a case, the accused has no obligation to present evidence. Weaknesses- early disclosure is an issue, complex processes, right to silence means truth may not come out. Legal Practitioners in a Criminal Case Reasons to employ a criminal lawyer -reduces stress -familiar with judges and court -realistic advice -reduces costs -best possible outcome Why are legal practitioners needed? -Human right -Pillar of rule of law -To ensure adequate opportunity to test evidence against the accused -Ensure no mistakes made -Possibility of restriction on liberty Specifically- -Skill and experience required to navigate the criminal justice system and test evidence includes —> plea negotiations, trial processes, examination of witnesses -Objectivity - lawyers not emotionally invested in outcome -For traumatic and difficult cases avoids situation where accused might directly question a victim -Court and judges can't overly advocate on behalf of self represented accused person Protected by law- -Courts have the power to adjourn (delay case) a trial and order that accused obtains legal representation, can be provided by VLA - the courts must satisfy that the accused wont recieve a fair trial without representation and can't afford a lawyer Strengths- legal practitioners are experts, assist in conducting closing and opening address, have objectivity in making decisions such as accepting agreements, help avoid delays Weaknesses- not all practitioners have same level of experience, not everyone can afford legal representation, legal representation alone may not assist accused The Impacts of Costs, Time & Cultural Differences Costs -Legal representation -Court fees -VLA - can't assist everyone, limited to who they help, increase in self rep pressure on court -CLC Time -Delays - right to trial without unreasonable delays -Covid - backing of cases -Long trials -Retrial due to juror misconduct -Adjournments Cultural differences -Language barriers - migrants, indigenous people -Cultural norms -Direct eye contact -Bias against a race/culture Costs -Not everyone who cannot afford a lawyer is eligible to receive assistance from VLA; must satisfy income test for a duty lawyer, must meet means test to be eligible for a grant, must be able to obtain pro bono, if an accused can’t get assistance they have to self represent Addressing issue of cost - Creates challenges for legal system; self represented lack understanding of law and procedures, trials and hearings take longer because judge/magistrate has to explain along the way -Self represented are often vulnerable; homeless, disability, young -Legal organisations and courts provide more information online Committal proceedings -Filter out weak cases so that cases don’t go to unnecessary trials -Opportunity to resolve case early → accused can choose to plead guilty after hearing evidence against them -Reduces costs Pleas negotiations -Resolve criminal cases quickly -Trial is avoided -Cost of trial avoided Time -Court delays - complex cases -Delays in case being ready for trial -Impacts on backlog - stress and trauma -Accused may be on remand 1.Right of an accused to be tried without unreasonable delay 2.Delays affect ability of the criminal justice system to achieve justice Court Delays -Pre trial tasks including; gathering evidence, locating, interviewing witnesses, determining what happened, laying charges -The more complicated the case the longer it takes to get to court -Wait time for hearing date → backlog Addressing issue of time Plea negotiations; help to reduce delays, achieve early guilty plea saving time, courts free up to determine other cases, judge only trial Digital Technology; allow for remote hearings rather than in person allowing parties to appear from remote locations Cultural Differences -Language barriers -Lack of understanding -Distrust in justice system -Lack of interprets -Challenges for first nations people Language barriers; many first nations communities have their own language Body language; direct eye contact considered disrespectful Cultural taboos; some things can't spoken about Direct questioning; not apart of culture, group discussion and telling stories to settle dispute Lack of understanding of court procedure; not understanding why have to keep repeating same story - think they have to change the story Additional issues -Over representation of first nations people in system - 14 times more likely to be jailed -Social and economic disadvantage Addressing issue Koori Court - Magistrates/county court for those who plead guilty, informal, support from elders, plain english spoken Free Interpreters - for summary offences - mag court pays. For indictable offences - prosecutor pays not available in all courts Purposes of Sanctions -The purposes of sanctions are the aims or objectives for imposing a particular sanction on an offender Rehabilitation -Designed to address the underlying causes of offending and treat the offender based on those causes -Aim → help offender change attitude and behaviour with goal or preventing them from reoffending -Offender must demonstrate remorse for rehabilitation to be relevant Punishment -Designrf to penalise the offender for actions that are unacceptable to society -Aim → to demonstrate to the victim and community that justice has been done and punish offender Deterrence -Designed to discourage others from committing similar offences General deterrence -discourage others from committing similar offences -depends on community knowing the sanction imposed Specific deterrence -discourage offender from committing further offences -particularly if there is a history of offending - want this to discontinue Denunciation -Designed to demonstrate the communities disapproval of offenders actions -Aim → to reinforce the communities expectations and values and behaviour is condemned Protection -Safeguard community from offender preventing them from further offending by imprisonment -Aim → to ensure community are safe from harm caused by offender -CCO can protect community because it keeps offender busy -Indefinite sentence can help protect community Types of Sanctions Fines -Fines are an amount of money ordered by the court to be paid by the offender to the state of victoria. -They are expressed in levels, with level 2 as the highest level and level 12 the lowest Determining amount of fines; -Financial circumstances -Whether other orders have been made -ANy loss or destruction or damage to property as a result of the offence -The value of any benefit to the offender as a result of the offence Purposes of fines; -Punishment - financial circumstances of the offender and their ability to pay fines need to be high enough to act as a punishment, take into account financial circumstances and nature of the offending -the amount of the fine = high enough to be a burden -Whether fine is paid and/or able to be enforced -Specific deterrence - financial circumstances of the offender and their ability to pay fines need to be high enough to impact the offender and deter them from committing further crimes -the amount of the fine = high enough to be a burden -Whether fine is paid and/or able to be enforced -General deterrence - the amount of the fine and the circumstances of people in the community - a larger fine more likely to act as a general deterrent -whether fine is enforced - people are less likely to be deterred if there are no repercussions -the extent to which the sentence is known to the community Denunciation - The nature of the offence and the fine imposed CCO’s -A community correction order is a non custodial sanction (doesn’t involve prison sentence). This sanction is served in the community with conditions attached to it. -Helps address criminal behaviour Conditions attached to CCO -must not commit another offence punishable by prison -report to a community correction centre within 2 working days of order coming into force -must report and receive visits from community corrections officer -must not leave victoria without permission Additional conditions -unpaid community work -treatment and rehab -curfew -place and area exclusion -residence exclusion Purposes of CCO’s Punishment - depending on length of CCO - short CCO less punishment, mandatory conditions imposed, more restrictions feel like a burden to punish offender Specific Deterrence - depending on length of CCO less likely to deter, mandatory conditions imposed, minimise risk of reoffending General Deterrence - nature of CCO - lots of hours of community work, harsh conditions deter others Denunciation - Length of CCO - longer CCO sends strong message, harsh conditions show disapproval Rehabilitation - conditions imposed - treatment can address programs seeking to address underlying conditions Protection - whether offender is rehabilitated and deterred, additional conditions imposed Imprisonment -Involves being removed from society and having to spend time in prison, losing freedom and liberty -sentences should be given with parole, parole board review whether prisoner can be released -life imprisonment can be imposed -prison terms are expressed in levels from 1 to 9 - 1 being the most serious and 9 being the least Purposes of imprisonment Punishment - the length of prison term, ultimate punishment, loss of freedom, contact with family, friends, job Specific Deterrence - the length of prison - longer sentence will discourage from reoffending General deterrence - length of sentence - long sentence discourage others from offending Denunciation - long prison term send a strong message behaviour isn't accepted Rehabilitation - programs available, prospects of rehab - if offender is remorseful and wants to address underlying causes, length of sentence Protection - length of sentence - safeguard community while offender is in prison, parole impacts protection Factors Considered in Sentencing Aggrivating factors -facts or circumstances about the offender or an offence that can lead to a more severe sentence -increase offender culpability -nature of offence -prior convictions -violence -use of weapon Mitigating factors -facts or circumstances about the offender or an offence that can lead to a less severe sentence -decrease offender culpability -offender show remorse -no prior convictions -under duress -effort to rehab -pleads guilty Guilty plea -when an offender formally admits guilt, which is then considered by the court when sentencing -guilty plea in early stage before trial can reduce sentence -act as a mitigating factor Victim Impact Statement -a statement filed with the court by a victim that is considered by the court when sentencing. It contains particulars of injury, loss or damage suffered by the victim as a result of the offence -victims can give statements to court if a person is found guilty of an offence -can be read aloud in court -allows victims to have a say in sentencing process