Outcome 1 REVISON NOTES Part I Unit 3 Outcome 1 REVISON NOTES Part I

On completion of this unit the student should be able to explain the rights of the accused and of victims in the criminal justice system, discuss the means used to determine criminal cases and evaluate the ability of the criminal justice system to achieve the principles of justice.

Key concepts the principles of justice: fairness, equality and access key concepts in the Victorian criminal justice system, including: the distinction between summary offences and indictable offences the burden of proof the standard of proof the presumption of innocence the rights of an accused, including the right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury the rights of victims, including the right to give evidence as a vulnerable witness, the right to be informed about the proceedings, and the right to be informed of the likely release date of the accused Key concepts

Key Knowledge • the principles of justice: fairness, equality and access

The principles of justice: fairness, equality and access

Fairness Fairness can have many meanings, but in the justice system can relate to fair processes and fair hearings. Fairness does not always mean everyone is treated equally. Fairness in the justice system may require people to be treated differently to reach a fair outcome. Factors influencing fairness may include: the availability of legal representation whether laws have been properly applied the time it takes for a case to be heard whether the accused can present their case or understands the legal process/has assistance whether the judge and jury have acted according to their responsibilities.

Equality In the justice system, people should be as equal before the law with an equal opportunity to present their case. No person should be at an advantage or disadvantage because of a personal characteristic (such as gender, race, religion, ability, age, sexuality). Factors influencing equality may include: the way differences are treated or if there are inherent biases whether the legal system disadvantages certain groups (e.g. lower socio- economic) whether laws are applied equally to everyone.

Access Access is the ability to approach or make use of something. In the justice system, access refers to people’s ability to access legal institutions (such as the courts), or organisations that offer legal information or assistance. Factors influencing access may include: the availability of means to finalise cases the availability of legal representation and advice the costs and delays associated with legal cases the extent to which members of the community understand legal rights the availability of courts the formalities associated with the legal process.

Summary Offences and Indicatable Offences Indictable offences minor criminal offences (Summary Offences Act 1966 [Vic] and other statutes and regulations) heard in the Magistrates’ Court no jury the final hearing is called a hearing serious criminal offences (Crimes Act 1958) heard in the County Court or Supreme Court jury trial if the accused has pleaded not guilty the final hearing is called a trial

The burden of proof The burden of proof refers to the party that has to establish the facts of the case. In a criminal case, the burden of proof lies with the prosecution. The burden of proof can be reversed where the accused raises a defence.

The standard of proof The standard of proof refers to the strength of evidence needed to prove the case. In a criminal case the prosecution must prove the case beyond reasonable doubt. A reasonable doubt is one that is not imaginary or fanciful, but a realistic possibility. The standard of proof on an accused is on the balance of probabilities.

The presumption of innocence The presumption of innocence is a guarantee that an accused will be assumed to be innocent until the charge has been proved beyond reasonable doubt. The presumption of innocence is upheld through the high standard placed on the prosecution to prove its case beyond reasonable doubt, as well as through the bail system.

Key Knowledge the rights of an accused, including the right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury

The rights of an accused The right to be tried without unreasonable delay A person charged with a criminal offence is entitled to be tried without unreasonable delay. This means that an accused is entitled to have his or her charges heard in a timely manner (delays should only occur if they are considered reasonable). This right is ‘without discrimination’, regardless of prior history or personal characteristics. A child (or person under 18) who is accused must be brought to trial as quickly as possible to reduce any possible impact on the child.

The rights of an accused (…cont) The right to a fair hearing A person charged with a criminal offence is entitled to have the charge decided by a competent, independent and impartial court after a fair and public hearing (Human Rights Charter). A competent, independent and impartial court must decide the proceeding or charge. A hearing must be fair, and public. This ensures that the trial and trial processes are transparent and not hidden in secrecy. The public or media may be excluded from the courtroom if their presence will cause undue duress or embarrassment to participants.

The rights of an accused (…cont) The right to trial by jury A person charged with an indictable offence is entitled to be tried by his or her peers. There is no right to a jury trial for summary offences. A criminal jury is made up of 12 jurors. The jury will hear the case and will need to reach a verdict on whether the accused is guilty or not guilty. The jurors must make a decision beyond reasonable doubt.

Key Knowledge • the rights of victims, including the right to give evidence as a vulnerable witness, the right to be informed about the proceedings, and the right to be informed of the likely release date of the accused

The rights of victims The rights of victims are recognised by a number of statutes in Victoria, including the Victims’ Charter Act 2006 (Vic), known as the Victims’ Charter. The right to give evidence as a vulnerable witness (a person who is required to give evidence in a criminal case and is considered to be impressionable or at risk (e.g. a child, a person with cognitive impairment or a victim of sexual assault).) A vulnerable witness is Four of the main protections in place for vulnerable witnesses are: alternate arrangements (put in place to protect the witness and their testimony) classification as a protected witness (when a criminal case involves a sexual offence or family violence offence) a protected witness is not cross-examined by the accused – they can only be cross-examined by the accused’s legal representative special arrangements for children or the mentally impaired (to reduce trauma in victims) for cases involving a sexual offence, an indictable offence, or an offence involving child pornography arrangements can include: the victim will not give evidence in the same room as the accused; the accused will not see or hear the victim give evidence; the evidence will be given on closed-circuit television; only authorised people will be present in court when the testimony of the victim is given; the victim will not be cross-examined without the permission of the court protection from improper questions (which are confusing, harassing, intimidating, offensive or humiliating).

The rights of victims (…cont) The right to be informed about the proceedings Victims who are adversely affected by an alleged crime have a special right to be kept informed about the criminal proceedings relating to that alleged crime. Investigatory agencies (including the police and Office of Public Prosecutions) must inform victims about: their rights to support services, legal assistance and possible compensation the progress of the criminal investigation. Once the prosecution has started, the prosecution must inform the victim of any charges laid, how they can find out details of the trial and the outcome of any proceeding, including appeals.

The rights of victims (…cont) The right to be informed of the likely release date of the accused Victims of certain violent crimes (e.g. rape, indecent assault, assault, stalking) can apply to the Department of Justice to be included on the Victims’ Register: if they are included, they will receive certain information on the offender who has been imprisoned including the length of the sentence, if the offender escapes or their likely release date. The victim may also be able to make a submission to a parole hearing relating to the offender.

Questions Define the term ‘justice’ as it applies in our legal system (1 mark) Describe one element of justice and explain two resources or processes in the legal system that help to achieve it (3 marks) Explain two problems that can make it difficult for particular individuals or groups to achieve access to the legal system (4 marks) Suggest a change that could be made to improve fairness in our legal system (3 marks)

Questions (…cont) Describe two key concepts of Victoria’s criminal justice system (2 marks) Outline how delays in the criminal law system can inhibit the achievement of justice (2 marks) Distinguish between a summary offence and an indictable offence. Provide an example of each (2 marks) Explain why you think victims should be kept informed about criminal proceedings against an accused (3 marks)