VCAA Legal Studies The Victorian criminal justice system

Victoria Legal Aid (VLA) may have the role of providing legal aid to a person accused of flying a kite in a public place, as is required under their statute. VLA can provide the person with information about kite flying laws for free on their website or in brochures. If the accused is viewed as "needing advice most", they could also provide them with specific legal advice, and could even provide them with a grant of legal representation for even more targeted advice if the accused can satisfy a means test which assesses their income and wealth levels (among other factors). Hence, by providing information, advice or representation, VLA can uphold its role to provide legal aid.

Kite flying is a summary offence rather than an indictable offence as it is provided in the Summary Offences Act 1996, where the majority of summary offences are provided. In contrast, kite flying is not an indictable offence as the majority of these offences are provided in the Crimes Act.

Furthermore, kite flying is a summary offence because it is a minor criminal offence as is indicated through the nature of the crime which involves the ‘annoyance’ of another person, which is a relatively minor criminal offence as it is not causing substantial harm. Whereas indictable offences are serious criminal offences such as manslaughter and murder, therefore kite flying is not an indictable offence.

One factor that could affect the ability of the criminal justice system to achieve fairness in relation to the summary offence of kite flying is costs. In essence, there are significant costs associated with an accused defending a criminal charge, most prominently, the cost of legal representation. If an accused cannot afford legal representation in order to defend their charge, then they may not be able to understand the legal terminology and procedure used in the Magistrates’ Court, meaning they may not have a reasonable opportunity to present their case, reducing fairness.

However, if an accused cannot afford legal representation they may be eligible for assistance from Victorian Legal Aid, who can provide them with legal advice and support to help them to put their best case forward, ensuring fairness. Secondly, the high cost of defending their case may lead the accused to plead guilty to the offence of kite flying, despite having possible legal arguments and defences, due to inadequate resources, potentially leading to an unfair outcome, reducing fairness. However, the Magistrate can explain legal terminology and procedures to a self-represented accused person, assisting them to have a reasonable opportunity to present their case, and meaning the accused is less likely to feel obliged to plead guilty due to inadequate resources.

The right to trial by jury is an express right within s 80 of the Australian Constitution, which states 'the trial on indictment of any offence against the Commonwealth shall be by jury'. This appears to be a strong protection for those charged with indictable offences as the Constitution cannot be easily altered, however, there are two limitations to this section. Firstly, it only applies to indictable offences, meaning persons charged with summary offences are not entitled to this right. Secondly, the Commonwealth Parliament can determine what is an indictable offence. This means it can re-categorise offences, such as terrorism. These limitations render s 80 less effective by restricting a person’s right to a jury trial. Clearly, the right to trial by jury is not a right that is fully protected even by the Constitution.

The role of VLA and Victorian CLCs is to provide free legal information and advice. VLA provides free legal information and advice and can assist those facing charges for not paying their toll fines over the phone, on their website or in person and assist individuals by providing information on the procedures and steps required.

CLCs also provide free legal information over the phone, in one of their centres or through their published works, such as the Fitzroy Legal handbook, which can inform those facing charges in the Magistrates’ Court on the steps and procedures of court.

One reason why the toll road debt recovery system may not achieve fairness is because it may introduce delays in the wider courts system. By hearing lots of minor claims with individuals charged with not paying road tolls in the Magistrates' Court, this prevents the Magistrates' Court from hearing more pressing criminal claims. It takes up a great deal of time, which limits fairness by preventing accused persons from having access to the right to trial without unreasonable delay. This is a right enshrined in the Charter of Human Rights and Responsibilities Act. This limitation is particularly salient given there is a proposed change to alter road tolls to become a civil matter, enabling individuals to resolve their matter directly with Citylink or Eastlink rather than through the courts, which may allow for fairer outcomes and free up court resources and time.

One reason why the toll road debt system may be limited in achieving equality is because the current system disproportionately affects those living in the outer suburbs. Because individuals living in the outer suburbs are more likely to need to use the tollways on a daily basis to travel long distances to get to work, they are disproportionately punished by the current toll road debt system. By recording criminal convictions and potentially sentencing offenders to jail time for failing to pay these road debts, their disadvantage can be perpetuated. As expressed by the VLRC and CLCs, a change to this system could prevent the unequal outcomes for people that is a challenge with the current regime by penalising individuals who are already disadvantaged by their physical location, allowing for equality. This is because these groups are more likely to be financially unable to pay their debts, rather than simply choosing not to.

Damages are more appropriate in the recovery of road toll debt than fines are, and certainly more appropriate than imprisonment.

Firstly, as the debt collector is a privately owned company, it is more appropriate that they utilise the civil system- as other privately owned companies must, and therefore receive damages, rather than the penalty of a fine being imposed. Damages still allow the debt to be recovered, and thus ensures tolls are being paid.

However, in the civil system, if the defendant cannot afford damages, it is difficult for the debt collector to enforce them, and thus may limit the ability of the road toll company to recover the debt. Additionally, if the defendant is overseas or unreachable, the damages also may not be paid. Therefore, this may limit the appropriateness of damages, and mean another option- such as a fine, where a long-term payment plan could be installed, and the payment is more enforceable, may be more appropriate.

Imprisonment may be effective at deterring others from not paying, and deterring the offender from avoiding tolls again, thus minimising the need for the company to avoid debt, it is not as appropriate as damages. This is because imprisonment is the 'sanction of last resort', and used to punish the offender for serious crimes. Given this is against a privately owned company, and there is no damage to property or person, it is not an extremely serious crime, therefore meaning imprisonment is less appropriate than damages.

Thus overall, damages are the most appropriate method of road toll debt recovery given this should be a civil issue, because it involves a privately owned company, although there are some limitations to damages enforceability.

The current toll road debt recovery system has a negative impact on the already overburdened criminal system, thus reducing access.

Currently, the criminal justice system is overburdened, causing delays in hearings and trials. Cases may be delayed by anywhere from a few weeks, to many months. These delays impact negatively on the accused, given they must retain legal representation for an extended period of time, and there is a long period of limbo for both the accused and the victim where they are unaware of the outcome of the case. This severely reduces access to a timely trial, and may mean an accused cannot afford legal representation. Moreover, delays decrease the reliability of evidence, and first hand witness accounts, which can subsequently reduce access to a fair trial. The current road toll debt recovery system substantially contributes to this issue given the fines matters are heard in courts, even though they ‘do not involve risks to public safety’, and instead just ‘[fill] up the courts’. Therefore, the current system reduces access by increasing delays.

However, there are a number of other issues also contributing to delays and the overburdening of courts, such as lengthy committal proceedings which many experts believe to be unnecessary, meaning that toll road debt recovery is not the only factor that contributes to time in the courts.

The reforms by some CLC's and VLA's recommended only using the criminal justice system for the specific purpose of ‘punishing … and deterring the most serious offenders’, which would significantly reduce the burden of cases on the criminal justice system. Subsequently, this would increase access by reducing the delays in cases being heard, allowing more access to a timely trial and allowing for greater access to being able to afford legal representation.

Thus, the reform proposed would increase access by reducing the burden on the courts system.

A role of community legal centres is to provide an accused with basic legal information. This information is available for free and can give the accused valuable information regarding their rights and the processes that will be used in their hearing/trial. The information can be sought via their website and the accused can also phone a community legal centre to inquire about information.

One purpose of plea negotiations in Grant’s criminal case would be to procure a guilty verdict without the need for a full trial in the court. A full trial would require costs, time and many resources as well potentially the victim of the aggravated assault, Andy and Maya, to give evidence, which could retraumatize them. Hence by being able to procure a guilty verdict through plea negotiations it would prevent the need to make them come to court and reduce stress for both the victims and the court resources.

Both the prosecution and the plaintiff, Andy have ongoing disclosure obligations. This means that they must disclose to Grant the relevant documents and evidence that they intend to rely on and use against Grant during their trial or hearing. Another similarity is that they both have the role to participate in the trial or hearing. This includes cross-examining and examining witnesses and opening and closing addresses to the jury panel (if one is present in Andy’s civil hearing).

On the other hand, the standard of probabilities with Andy and the prosecution differs since the prosecution must prove Grant’s guilt ‘beyond reasonable doubt’, which is a more higher and difficult standard to achieve.

The court hierarchy is necessary in determining criminal cases to enable the operation of the doctrine of precedent. The doctrine of precedent is the common law principle by which the reasons for the decisions of higher courts (ratio decidendi) is binding on courts ranked lower in the same court hierarchy where the material facts are similar (stare decisis). The formation of precedent is necessary in the role of courts in law making (common law) and is applied in determining criminal cases. Without the existence of the court hierarchy – courts ranked from low severity to high severity – the doctrine of precedent would not be operational; thus, it is necessary in determining criminal cases.

THE FOLLOWING IS AN EXCERPT ONLY:

In civil trials particularly, the proceedings are high in complexity and are difficult for jurors to understand, particularly in understanding the evidence presented such as in a defamation claim which are substantially complex. This limits the ability of access to be achieved in civil jury trials. However it is also important to consider that by allowing community members to experience juror duty in both civil and criminal matters, it is allowing them to participate in legal proceedings, enhancing their ability to understand and access the criminal and civil justice systems and upholding access to jury trials.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

Similarly, sanctions, like fines & imprisonment can act to punish offenders; fines by imposing a monetary penalty on the individual & imprisonment by fully revoking their liberty. These sanctions can both act as specific & general deterrents if they are severe enough, by conditioning the offender to alter their ways & sending a strong message to the community that criminal behaviour is not tolerated & will be met with consequences.

That being said, criminal sanctions are not without their limitations. Imprisonment, for instance, can subject people to negative influences of hardened criminals, undermining the changes that the offender will be rehabilitated from future offending. Victoria’s high recidivism rate (44%) suggests imprisonment is rather ineffective at rehabilitating people. Similarly, if a fine or CCO is perceived as too lenient (e.g. if the fine is easily payable or the CCO is too short), then offenders may not be properly punished, & may also not be deterred from re-offending.

To a limited extent fines achieve the purposes of rehabilitation and protection. Fines are a monetary value paid as a sanction for minor offences. As a fine does not address underlying issues which cause offenders to break the law, rehabilitation is not achieved by a large extent through fines. A fine may show an offender the errors of their ways and prevent them from reoffending in the future so to a limited extent fines may achieve the purpose of rehabilitation.

Protection is achieved to a limited extent by fines as the offender may avoid undertaking behaviour which would result in a future fine and would put the community at risk. Therefore if a fine prevents future dangerous, law breaking behaviour the community may be safer and protection may be upheld. Yet fines do not physically prevent offending in the future so protection is not upheld to a large extent as the safety of the community can not be ensured by giving an offender a fine.

A victim impact statement is a submission made to the court by the victim detailing the extent of any injury, harm or loss suffered as a result of the offender's actions. They are used in sentencing to help the judge gain an understanding about the long-term effects of the offence on the victim, as well as the degree of harm done to the victim. When sentencing Jai, the judge would have considered Georgia's impact statement in order to assess the level of protection Georgia may need from Jai due to seriousness of the harm she has suffered. As this is an attempted murder case it is likely that Georgia will suffer serious long term effects from Jai's actions which may prompt the judge to increase Jai's sentence to correspond to his offending. Thus the statement may be considered as an aggravating factor, as it increases Jai's culpability and may lead to the judge imposing a harsher sentence due to the severe harm caused by Jai's offence.

One circumstance in which sentencing indication would be appropriate in determining a criminal case is in the instance that the accused individual is willing to consider a guilty plea. By handing down a sentence indication, the judge would be able to provide a level of certainty and security in terms of informing the accused as to the likely outcome (in terms of the type and length) of a sanction that they would receive. As part of this, if the accused were to then plead guilty following the indication, the judge would not be able to dramatically exceed the severity of the sanction that was promised (for instance, they would not be able to hand down a sentence of imprisonment if that was not a part of the indication).

Hence, by providing this certainty of a sentencing indication, it is likely that the accused would actually plead guilty, saving the court and any potential victims the time and stress associated with a formal trial/hearing. If that accused had already not been receptive to the idea of a guilty plea, the sentencing indication would likely have less of an impact in swaying the accused to solidify that plea.

One participant in the plea negotiation process is the prosecution.

Another participant in the process is the accused.

Plea negotiations may be inappropriate in determining a criminal case if the case is of such a nature that it is not in the public interest for the prosecution to negotiate. For particularly vile crimes, such as rape or murder, especially if they have been widely reported in the media, undergoing plea negotiations may be inappropriate, as society may prefer that such a severe case is properly dealt with by the justice system in court, rather than the fate of the accused being privately negotiated. Plea negotiations may also be inappropriate depending on the views of the victim. If the victim wants their ‘day in court’ and would prefer a jury to determine their case, then plea negotiations may be inappropriate because they would deny the victim this opportunity.

One difference between an indictable offence and a summary offence is the severity of the offending. Indictable offences are considered to be severe offences, causing a significant impact. These involve murder, rape, homicide or commercial drug offences, and are contained in the Crimes Act and heard in higher courts. Whereas summary offences are relatively minor in comparison, and have a far less detrimental impact than indictable offences. Summary offences include theft or minor assault; these are contained in the Summary Offences Act and heard in lower courts. As such, the severity and detrimental impact indictable offences have, in comparison to the less severe impact of summary offences is a key difference.

When handing down a sentence, a judge must consider the impact of the crime on any victim and ensure the sentence given reflects this. To do this, judges will refer to a victim impact statement which is given by a victim of the crime and outlines particulars of any loss, harm or injury suffered as a direct result of the offending. This can prompt a judge to give a more severe sentence where the impact is substantial.