3.1.0 - How to Tackle Legal Studies
Advise – use your knowledge of the legal process, incorporate the stated facts of the case and draw a conclusion.
Example: Kellie has been charged with culpable driving, having been in a car accident that caused the death of Lachlan. The prosecution know Lachlan’s family are devastated and want to see Kellie punished severely. Senior Constable Angela, who attended the horrific scene of the accident and interviewed Kellie, has since taken stress leave. Kellie’s boyfriend is reluctant to give evidence about her drinking alcohol prior to the accident. Kellie’s barrister approaches the prosecution indicating she would be prepared to plead guilty to the lesser charge of dangerous driving causing death. Advise the prosecution as to whether a plea negotiation is appropriate in this instance. Justify your response. (4 marks)
- I feel a plea negotiation is appropriate/not.
- One reason I advise that a plea negotiation is appropriate is…
- A second reason I advise that a plea negotiation is appropriate is…
- On the other hand, the prosecution does need to consider that…
- However, given the benefits regarding securing a conviction for the criminal act, I believe that (draw a conclusion)
Justify your opinion
– state your position and if you agree, justify your position through strengths and weaknesses if relevant, rebut the opposing argument and link back to the question and the principles of justice.
Example: The author of a journal article wrote the following opinion: ‘Juries should not decide matters of fact. It should all be left up to the judge.’ To what extent do you agree with this opinion? Justify your answer. (8 marks) 0
- I disagree…
- The first reason I disagree is…
- Additionally, I disagree with this statement because…
- Further, this statement is…
- Judges shouldn’t determine the outcome of trial and matters of fact because…
– show both sides of the arguments and the concept’s positives and negatives; do not need to reach a conclusion.
Example: Sam, 23, has prior convictions and drug and alcohol addictions. Sam has been charged with three indictable offences, including armed robbery. The prosecution alleges that Sam was in possession of high-heeled shoes when committing the armed robbery and, therefore, possessed an ‘offensive weapon’ within the meaning of the Crimes Act 1958 (Vic). Sam meets with lawyers at their office and is advised that there is no precedent for whether high-heeled shoes are an ‘offensive weapon’. Provide
one sanction that may be imposed if Sam is found guilty and discuss
the ability of that sanction to achieve its purposes. (5 marks)
- One sanction that may be imposed is...
- A purpose of sanctions is...
One way (sanction) promotes (purpose) is
However, (sanction) can be limited in the achievement of its purpose as...
- A second purpose of sanctions is...
(Sanction) strives to achieve this purpose by...
Conversely, (sanction) can impede the achievement of its purpose through...
Discuss the extent to which
– how much does this concept achieve (eg principles of justice, its purpose)? Make a statement ie damages achieve their general purpose to a large or limited extent. Go on to explain ways in which damages achieve their purpose and ways in which they do not, then link bank to the facts of the case.
– describe both strengths and weaknesses of a body or process, link back to the question’s subject, incorporate the principles of justice where appropriate and draw a conclusion about the topic’s overall value or worth.
- Typically, (subject) is very effective at...
- A reason for (subject)’s effectiveness is its use of...
Conversely, (subject) can hinder its achievement of (ie principles of justice), thus its overall effectiveness, as…
- Additionally, (subject) strives to honour its effectiveness through...
Contrarily, this is limited by…
- Despite these limitations, the significant benefits of (subject), being (advantage one) and (advantage 2), mean it is...
Whilst similar, discuss is simply considering the strengths and weaknesses, whereas evaluate requires a thorough consideration of strengths and weaknesses and reaching a conclusion about the subject’s overall value as an element of the legal system.
Do you agree?
– make a statement regarding your position and justify this opinion by giving reasons and discussing the strengths and weaknesses of the concept. Often a task word which requires a response to a prompt – often a quote. Remember to address every element of the prompt and incorporate it into your answer.
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Unit 3 AOS 1 Brief Overview
- Under the Australian Constitution, laws regarding criminal justice falls under the jurisdiction of the State Parliament (legislation), not the Commonwealth (federal).
- The state is repped by a prosecutor on behalf of the Crown (typically DPP) v the accused. Victim is not a party in court proceedings. Vic. Pol., VicRoads & Worksafe Vic can pros. in Mag.
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3.1.1 THE PRINCIPLES OF JUSTICE
- Fairness is impartial and just treatment w/o prejudiced discrimination. Differs & overlaps w/ equality. Demonstrated through jury, presumption of innocence, legal aid, healthy discrimination like interpretation & additional assistance, bail system, knowledge of court proceedings & opportunity to present a defence.
- Equality is equal treatment regardless of personal characteristics/beliefs, free from bias (impartial). Demonstrated through same rules for all parties, use of juries & representativeness, sentencing indications, due process, availability of legal aid.
- Access is the ability to access and make use/sense of the criminal justice system. Demonstrated through legal aid & education, access to courts & other institutions, committal proceedings (paint swatch), plea negotiations & sentence indications free up court backlog and participation in jury duty serving.
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3.1.2 KEY CONCEPTS IN THE VICTORIAN CRIMINAL JUSTICE SYSTEM
- Summary offences are minor, heard in Magistrates Court by a Magistrate, not judge or jury. Can be heard in absence of accused, final hearing is called a hearing. Includes petty theft, disorderly conduct, and vandalism. Statute = Summary Offence Act 1966 (Vic)
- Indictable offences are serious, heard before judge and jury of 12 if accused pleads not guilty, cannot be heard in absence of accused. Original jurisdiction, County & Supreme. Can be heard and tried summarily in Mag if appropriate; cheaper, quicker, lesser sanction. Includes homicide, rape, culpable driving causing death. Final hearing is called a trial, statute = Crimes Act 1958 (Vic)
- Burden of proof lies refers to the onus of the prosecution to prove the guilt of the accused beyond reasonable doubt. Can be reversed if accused pleads self-defence, defence must then prove the accused’s innocence. Supports fairness and the presumption of innocence.
- Standard of proof refers to the degree of proof required to secure a conviction; in a criminal trial, this is beyond reasonable doubt. Supports fairness.
- Presumption of innocence is the notion whereby an accused is to be considered innocent until proven guilty beyond reasonable doubt in a court of law, and thus, shall be treated accordingly. Guaranteed by Charter of Human Rights and Responsibilities Act. Maintained by burden of proof and the bail system. Includes right to silence, and prior convictions to be revealed to the court during the sentencing process only and no earlier.. Supports fairness.
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3.1.3 RIGHTS AVAILABLE TO AN ACCUSED IN A CRIMINAL TRIAL
Charter of Human Rights and Responsibilities Act 2006 (Vic) (Human Rights Charter) protects and promotes rights. Based on and mirrors International Covenant on Civil and Political Rights 1966, Australia is signatory.
- Right to be tried w/o unreasonable delay, entitled to trial in timely manner, only reasonable delay (prepping cases, large-scale cases). W/o discrim. (age, prior history, disability). Minors to be tried asap. Recognises basic right to liberty & security, upholds fairness and the presumption of innocence.
- Right to fair hearing, charge to be determined by competent, independent & impartial court after public hearing. Open to media & public scrutiny of law application and processes and ensures transparency. Mag. can deem closed hearing from public and media if may cause undue distress to victims (eg. sexual offences), eg. Dietrich v The Queen (1992) 177 CLR 292.
- Right to trial by jury, protected by Constitution and statute law, not HRC. Provides fair trial by peers in community. Jury empanelment necessary for non-guilty plea for indictable, no right to jury for summary. Must be sure of guilt beyond reasonable doubt.
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3.1.4 THE RIGHTS OF VICTIMS IN A CRIMINAL TRIAL
Victims Charter Act 2006 (Vic) (Victims Charter) recognises impact of crime on victims and provides guidelines for provision of information.
- R to give evidence as a vulnerable witness, someone req. to give evidence considered impressionable/ at risk. Eg. minor, cognitive impairment or victim of a sexual offence. Criminal Procedure Act recognises distress associated w/ giving evidence. Four protections include: alternative arrangements include evidence via CCTV, screens to block vision, support person in cases of sex. offence, family violence or public indecency, protects witness and the reliability of testimony. Automatically available to complainant. Protected witness declaration, only to be cross-examined by defence attorney, not accused. Special arrangements, exam-in-chief via audio/visual-recording to be played in court, only authorised people to be present in courtroom. Evidence Act gives court power to disallow improper questions that are humiliating, confusing or embarrassing.
- R to be informed about proceedings, Victims Charter enables victim certain info about proceedings and criminal justice system. Police, DPP, Victims of Crime Commissioner (investigatory agencies) to provide clear and consistent regular info about support services, compensation entitlements and legal assistance and the status of investigation. Not required if unwanted or may jeopardise investigation. Also, info about details of offence, name of offender, outcome of bail proceedings, sentencing and appeal details, time/date/place of hearing.
- R to be informed of likely release date of offender, victims of violent crimes need to apply to Victims’ Register (database which provides info on offender and likely release date) through the Department of Justice. Can receive info on likely release/parole, sentence length, escapee - needs to be provided at least 14 days in advance.
Other rights include victim impact statement (considered when sentencing, states injury, loss or damage as result of crime).
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3.1.5 THE ROLE OF INSTITUTIONS AVAILABLE TO ASSIST AN ACCUSED
Legal aid is advice, education and info about the law and provision of legal services. If accused cannot afford legal rep, VLA & CLC’s (generalist and specialist) can help.
- Vic. Legal Aid provides free/low-cost legal rep to those from low socio-economic backgrounds providing they meet the means and income test. Purpose to provide help in economic and efficient manner, provide community w/ access to the legal system, manage its resources to make legal aid reasonably priced on an equitable basis.
- IT is for duty lawyers (VMC) on the day, eligible if provide current Centrelink card. MT is for legal assistance (rep), takes into account assets. Eligible if earning less than $360 per week. Criminal Procedure Act 2009 gives court power to adjourn trial until VLA provides legal rep should the absence of counsel subject an accused to significant disadvantage that may compromise a fair trial.
- Community Legal Centres provide info, advice, duty lawyer assistance & legal casework services to those who can’t afford it. Rarely take on criminal cases/legal rep. Generalist CLCs provide broad legal services to geographical areas, specialist CLCs focus on certain populations (eg. youth, refugees, those with cognitive impairments) and specific sectors of the law. CLCs consider nature of legal matter, if VLA assistance is available, if CLC can actually help, chance of success. Mostly deals with summary offences.
- VLA funded by Vic & Comm, received $140.7mill in 2015-16, mostly from Vic Gov. Low funding means they have to deny many applicants, thus inhibiting access and fairness. CLC funded by state and federal government and private donations. Provide help to 200,000+ annually; turn away 150,000+ due to lack of resources.
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3.1.6 THE PURPOSES OF COMMITTAL PROCEEDINGS
Committal proceedings are criminal pre-trial procedures. Occurs if accused has one or more indictable charges and has plead not guilty. Consists of a number of stages, including main & final, committal hearing. If Magistrate determines evidence of a sufficient weight exists to support a conviction, case will proceed to trial. Accused is committed to stand trial and released on bail, unless a flight risk, in which accused will be held in remand. If not enough evidence, accused is discharged, but if further evidence is found in the future, case can be brought before court again. When committed, DPP will receive documents and file an indictment in the VCC or VSC. Indictment is a written statement of charges and filing will commence a criminal proceeding.
- Purposes: filters out weak cases, allowing only cases with sufficient evidence to support a conviction to go to trial (prima facie & paint swatch), thus increasing access by ensuring weak cases don’t further contribute to the congestion of the courts. Also preserves the resources of the court and its personnel; ACCESS. Determines if appropriate to be heard summarily. Also ensures a fair trial due to disclosure of evidence between parties and opportunity to cross-examine; as such, enables defence to construct an adequate defence, thus upholding fairness and equality.
- Strengths include saving court resources and time by filtering weak cases, accused to be informed of pros. case, supports presumption of innocence through burden and standard.
- Weaknesses include complication (cross-examinations, submissions), added cost for accused, can add to delay for already strong cases (reduces access) and contributes to stress and trauma for all parties, thus potentially hindering the achievement of access and fairness.
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3.1.7 THE PURPOSES AND APPROPRIATENESS OF PLEA NEGOTIATIONS AND SENTENCE INDICATIONS
PLEA NEGOTIATIONS are pre-trial discussions between pros. and accused aimed at resolution through an agreed outcome (less or fewer charges). Free negotiation and any offers cannot be used against them if unsuccessful. Does not determine sentence, only charges being plead guilty to. Can happen at any stage, even before charges laid. Victims views to be taken into account (appropriateness).
- Purposes: can result in early resolution (access) and ensures charges adequately reflect committed crime. Rids usual process that causes stress, trauma, hefty cost and excessive waits.
- Appropriateness: if in public interest; cooperation of accused taken into account; strength of prosecution case, likelihood of long trial, reluctant witnesses in regards to evidence provision. Thus, can achieve access and fairness, though the latter may be compromised due to an accused typically receiving a lesser sentence due to typically pleading guilty to a lesser charge
- Strengths include prompt determination, saving money, court resources (ACCESS) and trauma/distress of trial, certainty in outcome.
- Weaknesses include possibility of lenient sentence, self-represented accused may feel pressured to accept, avoiding the need to prove the case beyond reasonable doubt.
SENTENCE INDICATIONS are statements made by the judge to an accused in regards to the potential sentence they’re facing if pleading guilty. A means other than plea negotiations to encourage an early resolution, supporting access, and to result in a guilty plea without a full trial.
- Criminal Procedure Act allows them in County & Supreme for summary and indictable. In indictable cases, indications must be applied for with the consent of the prosecution, unlike summary, which can be given at any time. Mostly an indication of the likelihood of an immediate sentence of imprisonment. Sentence indications cap the maximum sentence imposable given that the accused pleads guilty at the first available opportunity. If the defendant doesn’t plead, a different judge will preside and they will not be bound.
- Purposes: provides clarity about the likely sentence and enables an accused to make an informed decision as to whether they’re to plead guilty (ACCESS). Also saves time, costs and resources of the courts (ACCESS).
- Appropriateness; nature of the offence, Sentencing Advisory Council states they may not be appropriate for sensitive cases, court hearing the charge (Supreme cases are likely to result in custodial sentences), the strength of evidence against the accused.
- Strengths are early determination, saving money and resources, certainty about likely sentence, procedural fairness as accused does not have to accept indication and plead guilty. VIS can be considered in the indication, different judge will hear case if no guilty plea. Weaknesses include judge not obliged to grant request, denies victim day in court, indication may occur before all facts are laid out.
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3.1.8 THE REASONS FOR A VICTORIAN COURT HIERARCHY IN DETERMINING CRIMINAL CASES
- Original, a case’s first port of call to be heard in court; appellate, a court’s power to hear a case being reviewed from a lower court.
- SPECIALISATION: The individual jurisdiction of each court enables judges to develop a high level of expertise hearing cases within their jurisdiction. This can lead to increased efficiency within the judiciary and a higher likelihood of a just outcome. The VSC is highly specialised in hearing serious indictable offences (murder, treason, etc.); the VCC hears all other indictable offences; the VMC hears all summary offences that proceed to court (traffic offences, public intoxication, etc.). The VSCA and its judges are also highly trained to hear appeals from the VCC and VSC as well as those from VCAT on points of law, in cases heard by the president or vice-president.
- APPEALS: Should the prosecution or defendant be dissatisfied with a sentence (its severity or leniency), conviction, acquittal or point/question of law, either party may appeal to a superior court of the same hierarchy to have the decision reviewed and any errors corrected. Party who appeals, appellant, other, respondent. Provides fair outcomes and allows for mistakes to be revisited and corrected in a higher court. No hierarchy would not allow for this system to work.
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3.1.9 THE RESPONSIBILITIES OF KEY PERSONNEL IN A CRIMINAL TRIAL
Key personnel are judge, jury, parties and legal practitioners.
- Judge must act impartially, not favour, no connection with prosecution or accused. Play an integral role in ensuring all legal personnel are complying with legal processes and carrying out correct procedures (due process). Act as an umpire. They manage the trial, attend to jury matters and explain foreign concepts in depth, give directions to the jury and sum up case, hand down a sentence, order legal rep via VLA, uphold principles of justice, not interfere and assist a self-represented party.
- Jury is decider of facts and the verdict, do not have any part in sentencing. Comprises 12 jurors representative of the diversity of a community who are sworn to deliver a verdict based on presented evidence and no outside factors. Must be unbiased and have no connection to any parties, this can result in a discharge. Listen to and remember evidence, select a foreperson, understand direction and summaries, deliver the verdict, honour confidentiality of trial. Deliberations are to be free of coercion and should represent the true beliefs of each juror. If a unanimous verdict isn’t settle upon, a majority verdict will suffice, except in cases of treason, murder or some drug crimes.
- Parties are the prosecution (Crown or State) vs the defendant. Prosecution must be present at all proceedings in relation to their case, act on behalf of the interest of the State. Responsibilities of defendant include liaising with representation (direct attorneys and inform them of decisions), to lodge a plea, to be present at all court proceedings in relation to their case (indictable). Must both give an opening address, assist the judge in jury matters, present the party’s case, give a closing address, make submissions about sentencing, attend trial, brush up on relevant law and act in such a way that does not seek to bias the court against the accused.
- Legal practitioners represent accused, prepare and conduct a case (solicitor, draft documents, communicate with opposing party, research law and develop evidence, instruct the barrister, who presents evidence and argues the case on behalf of the accused with direction of solicitor). Key duty of prosecution is to secure a just conviction, defence is to pursue an acquittal and defend their client to the best of their ability. Pros must investigate and collate evidence against the defendant, declare said evidence to defence, source and prepare prosecution witnesses, to question & present arguments and negotiate with defence (plea neg). They must be prepared, comply with their duty to the court, The defence must present the case in the best possible light, educate the accused on their rights, source and prepare witnesses (expert, coroner, or eye witnesses), collate evidence to present to pros, negotiate with the prosecution and defend the accused irrespective of any personal beliefs.
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3.1.10 THE PURPOSES OF SANCTIONS
Sentencing Act 1991 sets a court’s power to impose sanctions. It strives to promote consistency of approach in sentencing and to provide fair procedures in the imposition. Purposes of sanctions include punishment, which should penalise offenders and should be adequate and appropriate, providing justice for victim and their family as well as retribution for impact of crime. Rehabilitation aims to treat the offender and address underlying issues, tries to change their behaviour and encourage integration back into the community as well as preventing recidivism (cycle of offending). CCOs can encourage rehab, also rehab programs in prison. Deterrence aims to discourage the general public (general) from committing similar crimes and also discourages offender from recommitting (specific). Denunciation demonstrate community and court disapproval and condemnation of offence. Protection aims to keep community safe from offender through removal from society, non-custodial sentences (CCO’s) can keep offenders busy and discourage criminal activity.
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3.1.11 FINES, CCOS & IMPRISONMENT AND THEIR SPECIFIC PURPOSES
Upon sanction imposition, fundamental sentencing principles of totality and proportionality are paramount. Must weigh up harm to victim & society, agg & mit factors against freedom deprivation, loss of money and reputation
- FINES are from Level 1 to 12, 2 is highest, $460,000 (court cannot fine L1, incredibly serious, murder). Payable to State of Victoria. Deterrence, denunciation, punishment. Considers factors include wealth of offender, denunciation ability, more appropriate sanctions. One penalty unit is $158.57 (L12). Sentencing Act 1991 (VIC) grants Magistrate power to impose fines. Minimum charges ensure equality, taking into account financial situations ensures access & fairness.
- Whilst fines seek to punish offenders for misdemeanours, the extent to which this is achieved is subjective. Dependent on the offender’s socio-economic background, such a sanction may have a significant impact on one individual whilst scarcely affecting another. Similarly, fines may deter offenders from low-income backgrounds, whilst those from fortunate financial circumstances mayn’t be discouraged from engaging in criminal behaviour, and thus may further contribute to the cycle of recidivism. Further, fines – whilst not typically aiming to do so – can act to denounce offenders. For example, this is especially so when a court acts to convey their condemnation of licensed venues’ provision of alcohol to minors. As such, a hefty fine may be imposed to simultaneously deter similar behaviour from other licensed establishments.
- CCOs are supervised sentences served in community under conditions. Opportunity to stop crim behaviour and be rehabilitated. Only imposable if convicted of crime more serious than 5 penalty units, pre-sentence report received and offender consents. Can be combined with fine or one yr imprisonment. Cannot be used for Cat1 or 2 (murder, rape, manslaughter). Must include at least one special conditions, including unpaid community work, curfew, rehab, area, person or alcohol exclusion. Punishment, spec. deterrence & rehab. Includes core conditions; mustn’t commit another offence (imprisonment), report to CC centre within two days of order, report to and receive visits from CC officer, mustn’t leave state w/o permission, comply with directions. Fairness as gives offenders second chance, equality as imposition of CCOs are available for many offences.
- IMPRISONMENT removes offender from society for period, levels one to nine; nine (months) least serious, one (life). Sentenced to longer than two years, must be minimum non-parole. Concurrent runs at the same time as another sentence; cumulative is served straight after another sentence. Aggregate applies to multiple instead of separate sentences for each offence. Indefinite is a term for non-minors convicted in Supreme or Court for indictable. Only imposable if the offender poses a great risk of danger to the community due to their character, past history and nature of offence. Recidivism, rate of return prisoners within two years is forty percent. Sanction of last resort, loss of liberty and freedom. Protects society, punishes offender, chance of rehab due to prison programs, form of deterrence (general and specific), denunciation through disapproval of court, reflected in sentencing.
- However, imprisonment achieves its purposes only to a limited extent. Whilst typically effective in the protection of society due to the removal of an offender for the duration of their sentence, the release of accused parties on bail and offenders on parole may subject the community to danger and enable such parties to inflict harm. Such was the case with the Bourke Street rampage in 2017 (accused released on bail) and the tragic murder of Jill Meagher in 2013 by an offender out on parole. The high rates of recidivism also postulate that imprisonment mayn’t be an effective means of deterrence nor rehabilitation (approx. 40% of prisoners return within two years of release). Further, whilst imprisonment typically punishes offenders in a manner that adequately reflects the impact of their actions on victims and society in general, the use of plea negotiations may lead to a lesser sentence which may be seen as lenient.
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3.1.12 FACTORS CONSIDERED IN SENTENCING
- AGGRAVATING FACTORS can increase seriousness of offence and offender culpability and result in a more severe sentence. Includes use of violence, victim vulnerabilities, hateful or prejudiced motivations, breach of trust (parents and child).
- MITIGATING FACTORS are circumstances to be considered upon sentencing that can decrease the offender’s culpability and as such, may result in a lesser sentence. This includes if the offender was provoked by the victim, if they show remorse, cooperation with authority, early guilty pleas, youthful offender, efforts made towards rehabilitation, acting under duress etc. The earlier a guilty plea is made, the possibility of a less-severe sentence is more likely.
- GUILTY PLEAS are considered in sentencing process (how far into the case did they plead?) Early plea – before trial or hearing – can result in a lesser sentence. If offender knows GP can reduce sentence, may cooperate earlier to avoid going to trial and enduring its time, cost and emotional upheaval.
- VICTIM IMPACT STATEMENTS contain details of damage, injury or loss as a result of offence and is taken into consideration upon sentencing. Impact on victim, peers and personal circumstances of victim. Requests to have VISs read aloud in open court. Allows victims to have their say in sentencing process. Depending on the contents of the VIS, may act as an aggravating or mitigating factor.
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3.1.13 FACTORS THAT AFFECT THE ABILITY OF THE CRIMINAL JUSTICE SYSTEM TO ACHIEVE THE PRINCIPLES OF JUSTICE
COST FACTORS can impede or enhance the ability of the criminal justice system to achieve justice.
- Costs of legal representation restricts, mostly impacts accused. Law Council of Australia considers it necessary to adequately uphold the law, should be available to everyone. MC plea, $1100 - $3850. MC contest $2000 - $ 8450. MC bail app $1100 - $4400. CC plea $3000 - $10756. CC 5d trial $6500 - $19500. Fees payable to solicitor. Legal aid can be sought although restrictive, many forced to self-represent, contradiction of right to fair hearing HRC. Fairness; lack of familiarity with court procedures, facilities and emotional distance from trial. Equality; risk of inequality and less chance to defend themselves as with a seasoned professional. Access; cannot afford, may be pressured to pleading due to lack of defence means.
- Availability of legal aid restricts, many ineligible due to lack of VLA funding, CLCs are stretched in their ability. Institutions tighten eligibility criteria, 159 220 were turned away 14-15, 74 000 granted. Impacts vulnerable (disability, cog.imp, dom.vio, Indigenous), LA avai. to less than 8% of Australians. Domestic violence victims are particularly impacted. Fairness; can assist to access CJS and obtain assistance but lack can impact victims & acc and risk an unfair hearing. Equality; aims to diminish disadvantage but ineligible may not be treated same as pros. Access; aims to increase access but ineligible may be disadvantaged and self-represent.
- Ass. to self-represented parties can enhance to an extent, some choose, some forced. Can challenge court, unfamiliarity with court procedures/laws. C. personnel, magistrates and judges can assist self-repped parties but not overly interfere. C.pers. can provide procedural advice, point to legal ass. and pro bono schemes. Judges & mag are obliged to ensure a fair hearing and equal treatment. Doesn’t mean gather evidence, present case or overly interfere. Fairness; judge can stay trial until rep found. Equality; judge or mag ensure trial is equal, disadvantages should be accommodated to ensure discrimination is diminished (cog.imp, disability) Access; obligation to assist ensures partial understanding of rights and procedures, fair trial. Does not mean over-interference, must still navigate complex processes.
TIME FACTORS can restrict or enhance ability of CJS to achieve justice. Justice delayed is justice denied.
- Case preparation delays (hearing) can impede, large--scale cases require more time and resource to prepare matter for trial (OPP). Average time is 19.2 months. Delays mainly due to gathering evidence, over-reliance on hard copy documents and committal proceedings in ‘straight-forward’ cases. Affects principles of justice - fairness; delays result in emotional strain, stigma of charge, disruption of employment and family life. (Vic & acc) Equality; can impact vulnerable and risk being treated properly before the law (elderly, cog.imp, traumatised). Access; greater wait means less accessible courts, particularly difficult for sexu.off.
- Court delays can impede, parties often have to wait for hearing date, court system stretched in its ability. Courts have to deal with issues such as complex cases, self-repp., and increasing number of cases. County Court applicants can wait between 8 & 12+ months for trial. Fairness; hinders right to be tried without unreasonable delay, significant strain on vic and acc. Can also impact evidence (memory loss, large crime scenes). Equality; potential disadvantage to vulnerable compared to less v. Access; less accessible courts for long waits which may result in compromise between parties for early resolution.
- Plea negotiations and sentence indications can enhance, may achieve early resolution or finalisation, resources to be used elsewhere. SIs can encourage acc to plead guilty once they know likely sentence. “77% guilty pleas finalised”. Fairness; opportunity to plead or seek SI but no obligation. Ensure charges adequately reflect offence, avoid burden of trial, although some in society see these as lenient. Equality; available to most acc, equal opportunity to negotiate or seek, although victims may feel disadvantaged or cheated of justice. Access; avoid trauma, stress and inconvenience of trial and enables better access to courts. Victims are often consulted although do not determine plea negotiations.
- Expedition of appeals in VSCA can enhance, Ashley-Venne appeal reform include filing of grounds of appeal/sup. Arguments early in leave (permission) application, more detailed and uniform paperwork. Significant reduction on time to finalise appeal, six months compared to 12.5 in 2010-11. Fairness; quicker appeal process can reduce trauma of parties and reduce excessive periods before finalisation, honours fair/hearing without unreasonable delay. Equality; time reduction can reduce trauma and inconvenience, ensuring equality specifically vuln. Access; time reduction can increase access to justice and an adequate outcome.
CULTURAL FACTORS can restrict or enhance ability of CJS to achieve justice.
- Difficulties faced by Indigenous populations during questioning and giving evidence can impede, complex laws and customs. Language barriers and misunderstandings with definitions,, eg kill or story. Direct questioning may make people look evasive or dishonest when they’re being respectful. Direct eye contact, potentially disrespectful. Shyness and submissiveness, may answer to please questioner or plead even if not guilty w/o realising implications. Cultural taboos, forbidden to speak name of some. Lack of understand of court procedures, confusion about exam-in-chief or cross-exam. Fairness; questions may risk accused making unintended admissions of guilt, risk of procedural unfairness due to different customs and LoUnd. Equality; cultural diffs impact ability to be seen equal before law, unfamiliarity can cause confusion about case processes. Access; inability to understand processes and terminology, rights and CSystem can affect access to CJS.
- Overrepresentation of Indigenous populations in prison can restrict, Indigenous population over 18 2% of Aus pop, 27% of prison pop. 8% VIC pop, 84% NT pop. Fairness; language amongst other issues can cause misunderstandings between lawyers and Indi, resulting in unfair processes and hearings. Equality; over-rep demands greater court attention to honour complexity of their legal needs, which can inhibit justice. Access; lack of legal resources can result in poor access to justice, vulnerable and over-repped.
- Use of Koori Court for sentencing can enhance, div of Mag, County & Children’s. Provides fair, equitable and culturally relevant justice services and greater protection. Indigenous person + within court juris (not used for sexual offences) + consent of acc + guilty/intended guilty plea = Koori Court sentencing. Proceedings are informal, understandable by all parties and others present. 11 adult Koori Courts and 12 Children’s Koori in VIC, established 2002. Fairness; limits possibility of unfair trial by ensuring comm, informality and layout is more familiar and elders and involved. Equality; can overcome some cultural difference issues, informality and involvement of elders reflect equality. Access; informality, involvement of elders and understanding of proceedings can address inequities and access to only guilty offenders.
- Use of interpreters can enhance, right to free interpretation covered by HRC to those EAL. OPP solicitor arranges and pays, Mag in summary. Area for possible reform. Fairness; use of interpreters can bridge language gap and ensure smooth comm. Equality; inability to communicate may affect treatment and jeopardise case – helps ensure that case ensures no discrimination and comm w/ legal bodies. Access; CALD persons can be assisted by use of interp. and ensure legal advice and info. in languages understood.
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3.1.14 RECENT REFORMS AND RECOMMENDATIONS FOR REFORM TO ENHANCE THE ABILITY OF THE CRIMINAL JUSTICE SYSTEM IN THE ACHIEVEMENT OF THE PRINCIPLES OF JUSTICE
Recent reforms addressing cost factors
- Greater access to legal services in Hume/Goulburn region - provides access to courts and legal aid for sig pop, focuses on vulnerable (fam.vio and child prot); does not address funding issues, strict VLA eligibility – many gaps to fill via reforms by lack of legal aid. 2016
- Free online pro bono assistance tool – Robot Lawyers helps fill gaps in legal services and assists self-repped, accessible to many except those without computers, doesn’t address all gaps. 2016
Recent reforms addressing time factors
- Increase in court technology – VCC and VSC aiming to become paperless to increase efficiency. VCC records info so it can easily be replayed for convenience, time and cost factors. Good for witnesses and parties, efficiency and environment. 2017
- Removal of jury deliberation time limits – Juries Act 2000 amended in 2017 so majority verdict can be accepted earlier than original six hours to accept unanimous. May reduce by only short period, more efficient, doesn’t apply where unanimous verdict is required.
Recent reforms addressing cultural difference factors
- Expansion of Koori Court – Mildura court opened to allow greater access to Indigenous populations for sentencing, emphasis on importance, doesn’t address prison overrepresentation, sentencing only. 2016
- Funding for Indigenous prisoners’ programs - $2.5mil grants from VicGov to rehab Indigenous prisoners, focusing on cultural strengthening, parenting and tackling fam vio. Aiming to reduce overrepresentation in prisons, limited funding and short-term solution. 2017
Recommended reforms addressing costs factors
- Increase in funding for legal assistance – Victorian Access to Justice Review Report recommends additional state funding for LA, priority for duty lawyers, fam.vio and Indigenous legal services. Comm funding also, taking into account pop growth and demand. Most recent increases are unlikely to suffice; governments often reduce instead of increase.
- Increased pro bono schemes – VAJRR recommends an online service in which CLCs and others who offer pro bono can advertise their need and be matched with lawyers. Will enable greater comm. and access to lawyers, although requires lawyers willing to work for free and unlikely to fill entire gap. VicGov agreed to implement recommendation in May 2017.
Recommended reforms addressing time factors
- Abolition of committal proceedings – consideration of VicGov in 2012, not currently priority. Stated that they cause backlogs and unnecessary for some, adding delays, excess stress and cost. Abolition may deny accused right to test evidence and risk rule of law & pres of inn.
- Case management by VSC – proposition of flexible early case management for some indictable offences for VSC to manage case from original charge to trial. Draws on VSC expertise early, may assist with delays but could require significant resources and unclear whether substantial delay reduction would occur.
Recommended reforms addressing cultural differences reforms
- Improving access to interpreters – VAJR recommended adequate availability of interpreters in courts, which has since lead to VicGov’s commitment for additional funds, although its sufficiency is unclear. Likely to be $$ and may not meet demand.
- Continued focus and expansion of Koori Courts – it is expected that the County Koori Court will face expansion into other areas of Vic. Will help ensure equality in sentencing, allows greater access but does not address over-rep issues.
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