1. factors that affect the ability of the criminal justice system to achieve the principles of justice including in relation to costs, time and cultural differences
recent reforms and recommended reforms to enhance the ability of the criminal justice system to achieve the principles of justice.
Reforms
Key concepts

2. Key Knowledge
• Factors that affect the ability of the criminal justice system to achieve the principles of justice including in relation to costs, time and cultural differences

3. Cost factors

4. The cost of legal representation
The main costs involved are engaging a lawyer to provide legal advice or representation.
Costs tend to affect the accused more as they require legal representation to defend their case.
Not everybody can afford a lawyer, and legal aid is stretched.
The cost of legal representation

5. Principle
Cost of legal representation
Fairness
If the accused person can’t properly participate in a hearing, it may lead to an unfair result. In particular, the following can have an impact:
• lack of familiarity with the language of criminal trials
• lack of objectivity and emotional distance from what is happening in the case
• lack of knowledge of courtroom facilities
• lack of understanding of procedure.
Equality
If parties can’t afford representation, they are at risk of not being treated as equal before the law. For example, they might come up against skilled and experienced prosecutors who understand the law and its procedures, formalities and language. This places an unrepresented accused at risk of not being able to perform at the same level as their opponent.
Access
An accused who cannot pay for legal representation may have trouble accessing the courts and mechanisms that are used to determine the criminal charges. This may result in an accused person having to plead guilty to a crime they may not have committed because they do not have the means or ability to defend the case.

6. The principles of justice and the cost of legal representation
The availability of legal aid
A large part of the community is not eligible for legal aid.
VLA and CLC can only assist a limited number of people as their funding is not adequate to assist everyone who requires legal aid.
This impacts on vulnerable and disadvantaged people who rely on legal aid for help, such as those with a disability and those who are homeless.
Some of the most vulnerable are domestic violence victims and their children.
The principles of justice and the cost of legal representation

7. Principle
Availability of legal aid
Fairness
• Legal aid can assist a person to understand the criminal justice system, obtain legal advice and legal representation. This helps to ensure an accused receives a fair trial or hearing, as they are assisted with presenting the case before the judge, jury or magistrate.
• Limits on access to free legal services can impact an accused’s ability to present their case in the best possible light and receive a fair hearing. Lack of legal aid may result in people having to represent themselves.
• The lack of legal aid can also impact on victims and their families who want processes and need information about matters such as giving evidence. This can particularly hurt the most vulnerable such as domestic violence victims, Indigenous and Aboriginal Torres Strait Islander peoples and people with mental health issues.
Equality
• Legal aid aims to ensure that an accused is not disadvantaged because of their lack of legal presentation.
• An accused who is not eligible for legal aid is at risk of not being treated the same as the prosecution. It is usually the most vulnerable in our society who need legal aid, and therefore the ones most likely to be denied legal aid.
• A victim or their families who cannot afford legal representation may also be at a disadvantage by not being able to assert or understand their legal rights at the same level as someone who has private representation.
Access
• Victoria Legal Aid (VLA) and community legal centres (CLCs) aim to ensure that there is access to justice.
• A party who cannot get any form of legal aid through these institutions is at risk of not being able to access information, legal help, advice, assistance or representation, and may not be able to understand the processes involved.

8. Assistance to self-represented parties
The increase in self-represented parties means that judges, magistrates and court personnel may have to change their processes.
By way of example, in the Magistrates’ Court:
court staff typically establishes if someone has attained legal advice when people arrive
the accused may be able to see VLA’s duty lawyers for that day
volunteers are available at the Magistrate’s Court to offer practical and non-legal advice and support.
Judges and magistrates are also able to assist a self-represented party, but cannot represent the accused, gather evidence or overly interfere.
Assistance to self-represented parties

9. Principle
Assistance to self-represented parties
Fairness
• The ability and responsibility of court personnel, including judges and magistrates, to provide assistance may decrease some problems associated with self-representation. Although it may be limited to procedural matters, such assistance can reduce the possibility of an accused being denied the right to a fair hearing.
• A judge can stay a trial until an accused obtains legal representation if there is a risk that there will not be a fair trial.
Equality
• When a party is self-represented, the judge or magistrate must ensure the hearing is conducted so that equality before the law is promoted.
• If there is something about the self-represented party that means they could be discriminated against – such as disability or mental illness – it is the responsibility of the judge or magistrate to make necessary accommodations to ensure those people can participate in proceedings.
Access
• The fulfilment of the responsibilities of the judge and the magistrate to ensure a self- represented accused receives assistance goes some way towards helping the accused understand legal jargon or legal procedures, or his or her rights.
• The assistance cannot extent to the judge or magistrate acting for the accused or giving legal advice, and so the accused will still need to navigate his or her way through complex and difficult procedures, understand aspects such as cross-examination and make decisions about how to conduct the trial.

10. Time factors

11. Delays in preparing a case for hearing or trial
Most criminal cases involve gathering evidence, interviewing witnesses, determining what happened and determining what charges should be laid against an accused.
The more complicated a case is the more resources that the Office of Public Prosecutions needs to invest in preparing the matter for trial.
Many see delays as a result of the nature of our justice system, which has an over- reliance on hard copy documents and the need for committal proceedings.
Example: the Bourke Street tragedy which will take some time before it is heard.
Delays in preparing a case for hearing or trial

12. Principle
Delays in preparing a case for trial
Fairness
• Delays in criminal cases can result in emotion strain for the accused and his or her family, the stigma of being charged with a crime, the possible loss of a job, and disruption of family life. The impact on the victim and his or her family can be just as significant – victims have to wait for the case to be heard, and may not be able to move on until it is over.
• If the accused is being held on remand, there are physical and mental effects of spending time in prison, and it may be difficult to prepare a case adequately. Delays could also mean that witnesses may be unavailable, or their memories may become cloudy. This can reduce the likelihood of a fair outcome.
Equality
• Delays can impact on those who are most vulnerable, putting them at risk of not being treated equally before the law. For example, delays can be particularly distressing for people with mental illness or disability, those who are aged, or victims who have suffered significant trauma. Delays can therefore place someone in a more disadvantageous position than they otherwise would have been.
Access
• The greater the wait in having a case heard and determined, the less the courts become accessible to the parties. The negative impact of delays can be particularly difficult for victims of trauma or sexual offences.
• On the other hand, a timely and speedy determination of a criminal case can ensure that the courts remain accessible to people, and people have confidence in the criminal justice system.

13. In addition to preparing a case for trial, parties also have to wait for a hearing date.
The court system is stretched due to an increasing number of self-represented parties, more complex matters, and more cases being brought before the courts.
The legal community are concerned about the long wait times for hearings.
Court Delays

14. Principle
Court delays
Fairness
• A fair hearing includes the right to be tried without unreasonable delay. Court delays in setting a matter down for trial or hearing can be considered unfair given the strain it can have on the accused, victims, families and society.
• Long delays can also impact on evidence. For example, witnesses lose their memory over time, and victims often find it traumatic to have to wait so long for justice.
Equality
• Delays can impact on those who are most vulnerable, putting them at potential disadvantage in comparison to those who are not as vulnerable. Delays can therefore place someone in a more disadvantageous position than they otherwise would have been.
Access
• The greater the wait in having a case heard and determined, the less accessible the courts are to the parties. This can cause parties to compromise in order to finalise the case early, when there might otherwise be a strong case for and against the accused.
• The negative impact of delays can be particularly difficult for victims who suffer trauma from violence or sexual offences.

15. Plea negotiations and sentence indications
The use of plea negotiations and sentence indications have helped significantly in addressing the delays faced by the courts and prosecution in criminal matters.
Plea negotiations can reduce delays by achieving an early guilty plea in a case.
Sentence indications can also reduce delays by providing an accused with an opportunity to plead guilty once they know what sentence is likely to be imposed.
The DPP and OPP stated that guilty pleas were achieved in 77 per cent of matters in 2015/2016 and that this contributes to effective, economic and efficient prosecutions.
Plea negotiations and sentence indications

16. Principle
Plea negotiations and sentence indications
Fairness
• An accused person is given the opportunity to negotiate a plea, or seek a sentence indication. The accused does not have to accept any negotiation or sentence indication. He or she has an opportunity to decide whether to plead guilty.
• Plea negotiations are intended to ensure that the charges reflect the accused’s criminality, ensuring that there is fairness in what is being negotiated. Similarly, sentence indications are based on the information available to the judge or magistrate.
• Plea negotiations and sentence indications avoid the burden of trial for victims and witnesses.
• Victims and members of society may see both of these methods as unfair in that the accused is seen as being ‘let off’.
Equality
• Plea negotiations and sentence indications are generally available to all accused persons, therefore everyone has an equal opportunity to negotiate with the prosecution or seek a sentence indication.
• Victims may feel they are themselves disadvantaged because an accused does not have to face trial (though equally they may avoid the trauma and stress involved in a trial).
Access
• Guilty pleas avoid the trauma, stress and inconvenience of trial, when enables better access to parties and victims to the criminal justice system.
• In plea negotiations, victims are often consulted about their views, ensuring the prosecution considers their view when negotiating charges. The victim’s views, however, do not determine plea negotiations.

17. Expedition of Appeals in the Court of Appeal
Since 2011, criminal appeals in the Court of Appeal have been conducted under the reforms known as the Ashley-Venne reforms. These include:
the filing of grounds of appeal and supporting arguments early in the process of applying for leave
having more detailed and uniform paperwork.
This has resulted in reducing backlogs and delays. It now takes just six months to finalise an appeal in the Court of Appeal.
Expedition of Appeals in the Court of Appeal

18. Principle
Expedition of appeals in the court of appeal
Fairness
• Appeals can add to the trauma of victims and other parties involved, as they involve additional steps in the final determination of a case. Having the appeal heard quickly can reduce that trauma.
• Hearings should be heard without unreasonable delay, so the reforms assist in ensuring a fair hearing.
Equality
• The reduction in time can reduce the stress, trauma and inconvenience involved, thus ensuring equality before the law, particularly for those who are more vulnerable to delays.
Access
• Reducing the time it takes for a matter to be finally determined can increase access to justice – if appeals took years and an accused was wrongly found to be guilty it would significantly decrease access to a final determination the chance to establish an accused’s innocence, or have a sentence reviewed.

19. Cultural factors . Problems during questioning and giving evidence
Aboriginal and Torres Strait Islander peoples can suffer the following difficulties:
Language barriers: There are subtle differences in the way language is used by Indigenous people that can cause misunderstandings.
Different cultural groups in society may have difficulty in accessing the law equally and fairly. These groups include people for whom English is their second language and Aboriginal and Torres Strait Islander peoples

20. Principle
Problems during questioning and giving evidence
Fairness
• The way questions are asked and answered may risk the accused person making confessions or admissions he or she may not otherwise make.
• An Indigenous person’s different customs and lack of understanding of court processes can leave them at risk of procedural unfairness, as they may not be able to present their case as required by the criminal justice system. They may therefore be treated unfavourably.
Equality
• Cultural differences can significantly impact on the ability of a party to be seen to be equal before the law, and have an equal opportunity to present their case. Aboriginal and Torres Strait Islander peoples, charged with a crime that they have pleaded not guilty to, have to adapt to a system that is different from their own.
• Unfamiliarity with the justice system and cultural differences can impact on a person being able to equally present their case.
Access
• Inability to understand legal processes and terminology, legal rights and the court system can impact on a person’s ability to access the system without some adaptation of processes or assistance.

21. Over-representation of Aboriginal and Torres Strait Islander peoples
Aboriginal and Torres Strait Islander peoples are over-represented in the criminal justice system.
This includes overrepresentation in the prison population as well as victims of certain types of crime.
An Australian Law Reform Commission (ALRC) inquiry has been launched into the factors leading to over- representation in order to make recommendations for reform.
Over-representation of Aboriginal and Torres Strait Islander peoples

22. Principle
Over-representation of Aboriginal and Torres Strait Islander peoples
Fairness
• Language and other issues can lead to misunderstandings between Aboriginal and Torres Strait Islander peoples and their lawyers and court personnel, resulting in unfair processes and a possible unfair trial or hearing.
Equality
• The over-representation of Aboriginal and Torres Strait Islander peoples demands greater attention by courts and those involved in the justice system to the complexity of their legal needs. If courts fail to understand these needs and taken them into account, they risk denying them equality before the law.
Access
• The lack of legal resources and legal aid for some Aboriginal and Torres Strait Islander peoples faced with the criminal justice system can result in poorer access to justice. Since they are some of the most vulnerable, and are over- represented, they often have the least access to legal services and assistance.

23. Division of the Magistrates’ Court, the County Court and the Children’s Court
The following conditions must be met before the Koori Court can be used:
the accused must be an Aboriginal person
the offence must be within the jurisdiction of the relevant court (the Koori Court cannot be used for sexual offences)
the accused must consent to the matter being dealt with in the Koori Court
depending on which court is involved the accused must plead guilty or intend to plead guilty.
The Koori Court is only used for sentencing.
The proceedings are informal and conducted in a way that they can be understood by the accused.
An oval table is used and Koori elders or respected persons can advise the court on Aboriginal cultural issues.
The accused sits with their family rather than in the dock.
The Koori Court

24. Principle
The Koori Court
Fairness
• Koori Courts can help limit the possibility of an unfair trial by ensuring that people can communicate in a way that is familiar to them.
• The informality and layout of the courtroom will be more familiar for an offender, enabling them to actively participate in the hearing with elders present.
Equality
• The Koori Courts help to overcome some of the problems arising from the cultural differences of the Indigenous community. The differences and values of the Indigenous community are recognized in sentencing, which upholds equality. The informality and equality shown here reflect the strengths of Aboriginal ways of communicating and the importance of elders.
• The Koori Court is limited to sentencing, and so does not address equality issues that may exist in a hearing or trial to determine guilty.
Access
• The informality of the Court, the requirement that the offender and the Indigenous community are able to understand the proceedings, and the involvement of an Indigenous elder or respected person, assists the court to address some of the inequalities faced by Indigenous people.
• The Koori Court provides access to only guilty offenders, and not to those who wish to defend the charges.

25. The use of interpreters
Having a language other than English can affect people’s understanding of the legal system.
The Human Rights Charter guarantees that a person charged with a criminal offence has the right to have the assistance of an interpreter at no cost if they cannot understand English.
The use of interpreters

26. Principle
The use of interpreters
Fairness
• People from non-English-speaking backgrounds can find it difficult to present their case well. Legal processes and language are unfamiliar. This increases the likelihood of an unfair outcome. This is equally the case for victims and other parties whose first language is not English.
• The use of interpreters can bridge the language gap by ensuring that what the person wants to say is communicated.
Equality
• A person who cannot communicate well in a court setting may risk being treated differently, or may not be abler to perform as well as an experienced prosecutor who does not suffer the same issues, thereby jeopardisng the right to equality before the law.
• The use of interpreters can help people who are not familiar with the English language to communicate with their lawyers and with the court, and to present their case in a way that ensures they are not discriminated against, making them more equal in the process.
Access
• Unless information and advice is presented in a different language or an interpreter is available, people of a different cultural and linguistic background will find it difficult to understand processes and their legal rights. People may also come from different legal systems and therefore not understand our own processes.
• Interpreters can help people access legal advice and information in a way that they understand.

27. Key Knowledge
• Recent and recommended reforms to enhance the ability of the civil justice system to achieve the principles of justice

28. Recent reforms addressing costs factors
Greater access to legal services in the Hume/Goulburn region – A new VLA office was opened in Shepparton in A new courthouse has also been designed for the Hume/Goulburn region for delivery of justice.
Free online tool – In 2016 a free online tool called Robot Lawyers was released. It is designed to help people who cannot afford a private lawyer and don’t qualify for legal aid.

29. Recent reforms addressing time factors
Increase in use of court technology – The County Court and the Supreme Court are increasingly aiming to become paperless and increase their use of digital processes.
Removal of time limit for jury deliberations – Previously, it was mandatory for jurors to take six hours in a criminal trial to get to a unanimous verdict before a majority verdict was accepted. This requirement has been removed to reduce delays.

30. Recent reforms addressing cultural differences factors
Expansion of the Koori Court – In 2016 a new Koori County Court opened so that Aboriginal and Torres Strait Islander peoples in the Mildura region have access to the sentencing court.
Funding for Aboriginal prisoner’s programs – In the Victorian Government announced grants worth almost $2.5m to support programs designed to rehabilitate Aboriginal prisoners.

31. Recent reforms addressing other factors
Changes to bail laws – In 2016 and changes were made so that persons charged with certain offences can only be granted bail in exceptional circumstances.
Changes to jury decisions in sexual offence cases – Judges are now required to direct the jury that victims ins sexual offence trials do not remember all the details of a sexual offence, may describe it differently at times, and that this does not mean the witness is being untruthful.

32. The ability of recent reforms to achieve the principles of justice
To consider this you need to ask the following questions for each reform:
What problem, difficulty or issue is it designed to overcome?
Is it a short-term or long-term solution?
What principle of justice is the reform achieving?
Are there any statistics, data or evidence to show that the reform has improved the criminal justice system?
What else needs to be done in addition to the reform, or is it a total solution to the problem, difficulty or issue it is trying to overcome?

33. Recommended Reforms

34. Recommended reforms addressing costs factors
Increase in funding for legal assistance – The Victorian Access to Justice Review Report recommended that additional funding is provided for legal assistance, with priority for duty lawyer services, family violence services and Aboriginal legal services.
Improving the availability of pro bono services – The Victorian Access to Justice Review Report recommends that the Victorian Government, Justice Connect and the legal profession work together to improve pro bono services.
Alternative funding options – The Australian Bar Association (ABA) and other organisations are considering sources of funding other than government funding.

35. Recommended reforms addressing time factors
Abolition of committal proceedings – Some people believe that committal proceedings remain a problem and add to delays in the criminal justice system.
Case management by Supreme Court – The Victorian Government proposed reforms for some indictable offence cases to allow the Supreme Court to manage those cases from the time a person is charged through to trial.

36. Recommended reforms addressing cultural differences factors
Formal recognition for communication services – The Australian Human Rights Commission (AHRC) recommended formal recognition of the need for an interpreter service, a communication support worker or hearing assistance when dealing with Aboriginal and Torres Strait Islander peoples.
Improving access to interpreters – The Victorian Access to Justice Review has recommended adequate availability of interpreters in all courts.
Continued focus and expansion of the Koori Court system – There is continued calls for the Koori Court to be expanded throughout Victoria.

37. Recommended reforms addressing other factors
Trials by judge alone – In 2017 following the charging of Cardinal George Pell for historic sex offences it was questioned by senior barristers if there should be an option for trial by judge along in high profile cases.
Appointment of professional intermediaries – In November 2016 the VLRC recommended that a scheme to appoint professionals who could assist in obtaining evidence from child victims and victims who have a disability.

38. The ability of recommended reforms to achieve the principles of justice
To consider this you need to ask the following questions for each reform:
What problem, difficulty or issue is it designed to overcome?
Is it a short-term or long-term solution?
What principles of justice is the reform achieving?
Are there any statistics, data or evidence to show that the reform has improved the criminal justice system?
What else needs to be done in addition to the reform, or is it a total solution to the problem, difficulty or issue it is trying to overcome?