AOS 1 Criminal Justice System

• Summary offences

  • Minor crimes
  • Heard in Magistrate's Court by Magistrate
  • No right to Jury
  • Aka Hearing
  • Summary offences act 1966 (Vic) outlines summary offences.
• Examples of Summary Offences

  • Minor assault
  • Drink Driving
  • Unlicensed Driving
• Indictable Offences

  • Serious crimes
  • Heard in either County or Supreme Court by a judge
  • Aka Jury
  • Crimes act 1958 (Vic)
• Examples of Indictable Offences

  • Aggravated burglary
  • Theft
  • Drug trafficking
  • Homicide
• Indictable Heard summarily are indictable crimes that are heard summarily in the Magistrate's court if theft under $200,000 or penalty of 10 years or less. This is beause it is cheaper, more time efficient and lower maximum penalty. (Criminal Procedure Act 2009 Vic)
• Burdern of proof is the party that has the responsibily of proving the facts of the case. In criminal matters, it is the prosecution.
• Standard of proof is the strength of evidence. In criminal matters, it is beyond reasonable doubt meaning no other logical conclusions can be drawn and this must be proven by the prosecution.
• Presumption of innocence is a guarantee/common law right that when accused of a crime, they will be treated, as far as possible, innocent until proven guilty beyond reasonable doubt by the prosecution.
• POI is upheld by

  • System of bail
  • High standard of prosecution to prove its case (burdern of proof)
  • Right to silence
• Charter of Human rights and responsibilities is inline with an international treaty that contains the rights available to an accused in criminal proceedings. It aims to protect and promote human rights and ensures any statute passed by the Vic. Parliament is compatible with the human rights set out in the charter.
• Right to be tried without unreasonable delay

  • Entitled without discrimination to a guarantee that they will be tried without unreasonable delay. (regardless of age, gender, disability)
  • Heard in a timely manner (validity of evidence -> fair trial)
  • delays should only occur if considered reasonable
• Reasons why delays are reasonable

  • complexity of case (needs many witnesses or many victims are involved)
  • legal issues involved
  • plea negotiation
• Accused child <18 must be brought as quickly as possible to court as it could negatively impact the child's education.
• Right to silence is entitled to remain silent when questioned or asked to supply information by any person in authority. May be utilised by any person not just an accused.
• Right to trial by jury allows opportunity for community participation in legal processes.

  • Juries Act 2000 (Vic) Sc. 22 not protected by victorian human rights charter
  • S.80 of Commonwealth constitution
• Victim's charter recognises the impact of crime on victims and victims being offered certain information during investigation and prosecution process. Helps reduce secondary victimisation as a result of their interaction with the legal system.
• A victim is a person who suffered injury as a direct result, death of family member as a direct result or under 18 or incapable of mananing their own affairs.
• Right to give evidence using alternate arrangements

  • Victims may be a witness and have to give evidence in support of the prosecution's case.
  • Criminal Procedure Act protects vulnerable witnesses
  • Vulnerable when sensitive cases (sexual offence)
• Right to be informed about the proceedings

  • Victims charter act 2006 vic
  • prosecution provides details of the offence, the outcome, date, time or place of hearing
  • Investigatory, prosecuting and victim's service agencies provide clear, timely and consistent information like support services or possible compensation.
• Right to be informed of the likely release date of the offender

  • a victim of a criminal act of violence can apply to be on the victim's register. (e.g aggravated burglary, kidnapping, rape)
  • information the victim is entitled to receive:
  • likely date of release at least 14 days before their release
  • length of sentence
• Fairness means impartial and just treatment without discrimination or favouritism. Fair legal processes are in place and all parties receive a fair hearing.

  • understanding court processes
  • independent and impartial decision makers
• Access means the ability to approach or make use of the legal system (something). People understand their legal rights and have the ability to pursue their case.

  • Access to institutions (VLA/CLCs)
  • legal representation
  • support services
• Equality means the state of being equal (the same) in status, rights or opportunities regardless of personal characteristics or beliefs. All people are treated equally before the law with an equal opportunity to present their case.

  • Decisions should be independent and impartial.
  • Upholding rule of law through equal application of the law in court processes.
• Victorian Legal aid is an government agency that provides free legal advice to the community, and low-cost or no cost legal representation for people who can't afford a lawyer.

  • Free legal information
  • Legal advice
  • Legal representation
• VLA have duty lawyers that are based in the Magistrates Court and the Children's court. It can provide advice and representation based on an income test (centrelink card).

  • Information: fact sheets
  • advice: law, how it applies and what happens in court
  • In court advocacy: on the day if at court, may assist if facing a serious charge.
• VLA grants of legal assistance:

  • Means test (do you have means to pay for legal assistance): less than 360/week or if less than 540, some contribution is required.
  • Merits test (should VLA take on your case): benefit to the accused so they can get some help or if case is strong, they can give support.
• VLA

  Fairness: understand the criminal justice system, obtain legal advice and representation depending on a persons circumstances. However limits on access due to strict eligibility criteria.
• VLA

  Access: free legal information, grants for legal assistance. However free information publised online may be general in nature or may not be available to those without information.
• VLA

  Equality: ensures VLA eligibility criteria applies regardless of personal characteristics such as age, race and religion. However, missing middle (people who are not poor enough or rich enough).
• Community Legal Centres are not for profit independent organisations that provie free legal services (advice information and representation) to people who are unable to access other legal services. They provide specialist or general CLCs across Melbourne.
• CLC types of assistance include providing basic legal information such as handbooks online or free legal advice.

  • Specialist: Women's Legal Service CBD
  • Generalist: Fitzroy Legal Service Fitzroy
• CLC Fairness: understanding the criminal justice system. However, CLC casework and legal advice is limited to minor criminal matters so limited assistance for indictable offences.
• CLC Access: free legal information such as information about court proceedings or legal rights. However, there are very few CLCs in rural Victoria.
• CLC Equality: Specialist CLCs to assist those with particular personal characteristics (women, aged, young). However, those from low-socio economic backgrounds may not achieve equal treatment before the law without access to legal representation.
• Plea negotiations are discussions between the accused and prosecution involving incentives offered by the prosecution for the accused to plead guilty. This may result in the withdrawal of some charges, or a reduction in a severity of the charge.

  • Reduce money for a trial
  • Reduce stress, cost and trauma
  • Fairness: conviction reflects the severity of the criminal condcut.
• Plea negotiations are appropriate when there are issues with reliability of crucial witnesses and victims to give evidence. However, may not be appropriate when the accused wishes to have their day in court or when the case is a high profile case in the media.
• Purpose of Sanctions

  If accused is found guilty (or pleaded guilty), the judge or magistrate will decide on an appropriate sanction.
• A sanction is a penalty imposed by courts on a person who is guilty of an offence. The Sentencing Act (1991) sets out the court's powers to impose sanctions and establishes various types of sanctions.
• Purposes of Sentencing Act (1991)

  • To promote consistency of approach in sentencing
  • To provide fair procedures for imposing sanctions
• Purposes of Sanctions

  • Rehabilitation
  • Protection
  • Punishment
  • Deterrence
  • Denunciation