Basics of CJS
Who are the parties in a criminal case?
Prosecution and the accused
1) The right to be tried without unreasonable delay
2) The right to silence
3) The right to trial by jury
Describe the principles of justice
Fairness - open and impartial process
Equality - without disadvantage
Access - have the knowledge to participate in the justice system
Identify the purposes of sanctions
Protection, denunciation, punishment, deterrence (specific and general), rehabilitation.
Distinguish between summary and indictable offences
Summary offences is a minor offence generally heard in the Magistrates' Court. Whereas, indictable offences are serious offences generally heard before a judge and jury in the County or Supreme Court of Victoria.
Compare the burden of proof and standard of proof in a criminal case
Possible response:
- Both uphold presumption of innocence
- Burden is on prosecution, standard is beyond reasonable doubt
Explain what "the right to give evidence using alternative arrangements" means
A victim may be a witness in a case and if they are a victim who has experience family, sexual, violent offences, they are entitled to do so with measures put in place to give evidence in a different way.
What is the overall role of VLA?
Provide free legal information to the community and legal advice and representation for people who cannot afford a lawyer. Priority for people who need it the most to make a fair, just, and inclusive society.
Not a burden/high enough: If the offender is rich, they will just pay the fine and it will not act as a punishment at all, because they can afford it.
Define indictable offence heard and determined summarily
A serious offence that is dealt with as a summary offence if the court and the accused agree
The presumption of innocence is an old common law right. What does this mean?
It was law made by judges through decisions made in cases.
Are all victims entitled to receive information about the likely release date of the prisoner? Explain your answer.
Only those who is a victim of a criminal act of violence and included in the Victims Register
Possible:
- Free information: online enables all people to engage in the system and understand the criminal process and system – which many people, victims and accused are not aware of otherwise. Many CLCs publish free information online.
- Limited information: CLCs information is limited to some disputes – often mostly criminal and emergency law (e.g. fines, summary offences, and domestic violence) as such only promoting understanding for certain issues.
Distinguish between mitigating and aggravating factors using an example for each.
Mitigating factors are facts or circumstances about the offender or the offence that can lead to a less severe sentence, for example, an early guilty plea as this saves the court time and money. Where as, aggravating factors are those that increase the severity of the sentence, for instance, if there was a violent action towards a child, the offender would receive more of a severe sentence.
Define committal hearing. Are they any for summary offences?
A court hearing that is held as part of the committal proceeding in the Magistrates' Court. At a committal hearing, the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charge. Only for indictable offences.
What is an example of when the burden of proof can be reversed?
If the accused is pleading a defence such as mental impairment - the onus is on them to prove this
An accused child
Describe two possible outcomes of plea negotiations
The accused to plead guilty to fewer charges with remaining charges not proceeding
The accused to plead guilty to a lesser charge (e.g. manslaughter instead of murder)
The accused to plead guilty based on an agreement about the facts on which the plea is based (e.g. the nature of the offence, victimisation, impact or offender)
Describe how imprisonment may not uphold specific and general deterrence
Specific deterrence: Because the high recidivism rates in Victoria show us this. Depends on offender characteristics such as homelessness, availability of drugs, etc.
General deterrence: If the public are unaware of the sentence, it will not deter them
Would a minor assault case be entitled to a jury?
No, this is a summary offence. No entitlement for juries in the Magistrates' Court.
Outline three was in which the presumption of innocence is upheld
Examples:
The Standard of Proof - imposing a high standard on the prosecution to prove a case beyond reasonable doubt.
The Burden of Proof - ensures the prosecution is responsible for proving guilt, rather than the accused proving their innocence.
Reasonable Belief - police officers are required to have reasonable belief that a person committed an offence in order to arrest them.
Bail - Accused persons have the right to apply for bail and be out in the community as if they are innocent, until proven guilty in court. Sometimes they may be remanded though.
Legal Representation: An accused has the right to legal representation to best understand the legal system
Right to Silence: Every accused has the right to silence and that right should not be interpreted as a sign or admission of guilt.
Appeal: A person convicted can appeal their conviction, upholding the right to pursue their innocence.
Where can you find the right to trial by jury in law?
Statute law for state indictable offences (Juries Act 2000 (Vic))
Constitution for cwlth indictable offences
Discuss how specialisation upholds equality
Possible:
- Appeals available to everyone All people, with valid grounds for appeal, may appeal (or request) an appeal regardless of their individual characteristics such as race, gender, disability, etc.
- Cost of Appeals: Many people are unable to afford the costs of appeals. This may disproportionately disadvantage poorer individuals from pursuing their case further, as only wealthy and well-funded prosecution may have the resources to appeal
Discuss how CCOs may uphold rehabilitation
- Rehabilitation focus in conditions: There are specific conditions set out in the CCO that will help the offender rehabilitate themselves. So long as they meet the needs of the offender.
- Protection: Offender is still out in the community or will be within 2-5 years