U3-AOS 1

• Summary offences are minor criminal offences that are heard in the Magistrates' Court by a Magistrate with no jury. Eg. drunk driving, disorderly conduct and minor assault.
• Indictable offences are serious criminal offences that are heard in the County or Supreme Courts, they involve a committal hearing and are heard by a single judge and 12 jurors. eg. murder, rape and culpable driving.
• Indictable offences heard summarily are indictable offences that are heard in the Magistrates Court, only if the accused agrees, and only if the indictable offence is punishable by 10 years or less, as stated by the Criminal Procedure Act 2009 (VIC).
• The burden of proof is the responsibility of a party to prove the facts of the case. In a criminal case, the burden of proof falls onto the prosecution. The burden of proof can be reversed in cases of drug possession and when the accused person pleads a defence.
• The standard of proof is the strength of evidence needed to prove the case. In a criminal case standard of proof is beyond reasonable doubt. The case requires a unanimous verdict from the jury that states the accused is guilty beyond reasonable doubt.
• The presumption of innocence is the right of an accused person to be assumed innocent until proven guilty. The presumption of innocence is a very old common law right and is upheld in Victoria by the Human Rights Charter 2006 (VIC).
• The right for an accused to be tried without unreasonable delay is protected by the Charter of Human Rights and Responsibilities Act 2006 (VIC). The accused has:

  • the right to have their trial heard in a timely manner
  • the right for only reasonable delays to occur (such as complexity of case and legal processes involved)
• The right to silence is protected by both common and statute law. An accused person in a courtroom or in police custody is not forced to answer any questions, and no negative conclusions should be reached from the accused staying silent.
• The right to trial by jury allows for accused individuals to have a trial by peers. In Victoria, the Criminal Procedure Act 2009 requires a jury for all indictable offences. However, there is no right to trial by jury for any summary offences.
• The right for a victim to give evidence using alternative arrangements is protected by the Criminal Procedure Act 2009 (VIC). This Act allows for different ways in which victims can give evidence in a criminal case.
• Types of cases that allow for alternative arrangements are: sexual offences, family violence offences, obscene, threatening or indecent language or behaviour in public and offences for sexual exposure in public.
• A screen that obscures the vision of the accused from the victim during their testimony
• A closed-television system that records the victim from a separate room
• Requiring all legal personnel to not wear formal robes during the victim's testimony
• The court may limit the number of people in the courtroom during the victim's testimony
• The court may allow a person chosen by the victim to accompany them for emotional support during their testimony
• The court may require legal practitioners to be seated when asking questions to the victim
• The right to be informed of legal processes. The Victims Charter recognises that victims have a right to receive specific information regarding the proceeding and about the criminal justice system, including:

  • support services
  • possible compensation entitlements
  • available legal assistance
• The Victims Charter requires investigative agencies, prosecution bodies and victims services agencies to provide information such as, the outcome of the criminal proceeding, the length of the sentence, the charge of the offender and the date/time and place of the hearing, all to the victim affected by the criminal offence.
• The right to be informed of the likely release date of the offender is a right of the victim, protected by the Victims Charter Act 2006 (VIC). The Victims Register, a database maintained by Victoria about victims, requires the victims who are affected by violent acts to be informed of the likely release date of their offender.

  Criminal acts of violence, such as stalking, kidnapping and aggravated burglary, are offences that allow a person to be included on the Victims Register.
• Fairness: all people can participate in the justice system, and it's processes should be impartial and open.

  • FOR EXAMPLE: Section 25 of the Human Charter protects the right of an accused to be presumed innocent until proven guilty, according to law.
• FAIRNESS: Open processes:

  • All court processes should be open to the public
  • Allows the media to scrutinise judgements and outcomes of cases
  • Ensures accountability of decision-makers to the community
• FAIRNESS: Impartial processes:

  • Courts and personnel should be independent and impartial
  • Decisions should not be influenced by bias
  • Decisions must be based on law, not individual prejudices
• FAIRNESS: Participation:

  • People should be able to participate in the criminal justice system
  • They should know the case against them
  • They should have the right to use a lawyer and prepare a defense
• • Plea negotiations avoid the need to go to trial
  • They take place between the prosecution and the accused about the charges against the accused.
  • Result in an agreement between the two parties
  • Where the accused pleads guilty to the charge and the prosecution agrees to withdraw some charges from the accused
  • Plea negotiations do not determine a sentence
• Equality: all people engaging with the justice system and its processes should be treated the same way; if the same treatment causes disparity or disadvantage, adequate measures should be implemented to ensure that all parties engage with the justice system without disparity or disadvantage.

  • FOR EXAMPLE: Section 8 of the Charter of Human Rights and Responsibilities Act 2006 (VIC) provides that every person has the right to recognition as a person before the law, and every person is equal before the law and is entitled to equal protection of law without discrimination.
• • Same treatment: 'formal equality' - where all individuals are treated the same and given the same levels of support, regardless of gender, race, marital status etc.
• • Different treatment: 'substantive equality' - when treating people the same way could create disparity, hence adequate measures must be implemented in order to ensure that one party is not disadvantaged when engaging with the justice system.
• Access: all people should be able to engage with the criminal justice system on an informed basis, understanding their legal rights and having the ability to pursue their case.
• • Engagement: people should have the means and ability to use and participate in the system. Including physical, technological and financial access.
• • Informed basis: people should be able to engage on an informed basis with the justice system, meaning they should be able to 1) understand their rights and 2) obtain or be provided with sufficient information to make reasoned and sensible decisions.
• • Purposes of plea negotiations
  • To ensure certainty of outcome of a criminal case.
  • To save on costs, resources and time.
  • To achieve a prompt resolution to a case without the stress, trauma and inconvenience of a trial.
• • Reduce delays and costs by ensuring an early guilty plea
  • Helps with prompt determination of criminal cases
  • Saves costs of full hearing or trial
  • Increases public confidence in the system
  • Frees up court resources for other cases
  • Increases access for other people needing to pursue their case
  • However could make the community question the justice system, as the offender would be left with a lesser, more lenient sentence.
  • Lack of transparency
  • Reducing fairness as open processes are not achieved with plea negotiations, and nothing is open to public scrutiny
• • Reduces stress and trauma
  • Victims, family and witnesses are saved having to relive a crime by hearing evidence and facts that may be distressing during the trial
  • However, this may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt
  • Undermines the presumption of innocence
• • Reduced sentence
  • The accused will be advantaged with a reduced sentence because of an early guilty plea
  • However, an innocent person may feel pressured to agree to an early guilty plea
  • Instead of going through the long trial process and being found guilty of a more serous offence with a longer trial
  • Self-represented person may feel pressured
  • Additionally, as plea negotiations are held in a private environment, a self-represented individual may experience disadvantage as they are not receiving the same treatment due to their lack of knowledge of the legal system.

   
• Equality CLCs: CLCs offer individuals equal support, so all parties to a case receive the same level of treatment. For example, some legal information is provided on a day-to-day basis, in various languages and therefore is a measure to ensure equality.
• Summary offences are minor criminal offences heard in the magistrates court, by a magistrate and no jury; with a maximum penalty of 2 years imprisonment. For example, drunk driving, disorderly conduct and minor assault.
• Indictable offences are serious criminal offences heard in the county or supreme courts. They are heard by a judge and a jury of 12, and involve committal hearings. For example, murder, rape and culpable driving.
• Indictable offences heard summarily involve serious offences being heard in the Magistrates' court only if the accused agrees. This can only occur if the offence is punishable by 10 years or less; stated under the Criminal Procedures Act 2009 (VIC).
• Burden of proof is the responsibility of a party to prove the facts of the case. In a criminal case, the burden of proof is on the prosecution. If the accused pleads a defence the burden of proof can be reversed.