VCE Legal Studies - Unit 2

Australian Securities and Investments Commission

- ASIC investigate breaches of legislation, where directors have acted in breach of their duties.

Australian Taxation Office

- ATO investigate serious tax-related fraud offences and prosecute summary offences such as failing to lodge tax returns. - They usually refer serious causes to the CDPP.

Arrest individual rights

- An individual may refuse to attend the police station unless they are under arrest (upholding person's right to freedom of movement). - Person must be informed the time of the arrest and the reason for the arrest, and be promptly informed of any proceedings brought against them. - HRC states that an arrested person must be promptly brought in-front of a court without unreasonable delay. - A person doesn't need to do or say anything other than provide their name and address. - If arrested, a person must be released or brought before a magistrate/bail justice within a reasonable time of being taken into custody.

Consumer Affairs Victoria

- CAV can take legal action in relation to breaches of consumer trading laws and tenancy laws.

Federal Police

- Established under Australian Federal Police Act 1979 (Cth) - Role is to investigate and enforce offences with a federal aspect. - These offences include offences that are against the law of the Commonwealth or a territory. - AFP provided with powers to enforce criminal law and may work with Vic Police to identify and arrest possible offenders.

Court proceedings institutional powers

- For summary offences, Magistrates Court will hear and determine charges and magistrate will decide guilt. - For indictable offences, Magistrates Court will determine if their is sufficient evidence to support a conviction at trial, before the matter is transferred to another court for pre-trial procedures and trial.

Rehabilitation

It's society's interest to try to help offenders change their ways, otherwise crime rates and prison costs will increase. This is done by providing offenders with improved opportunities in the form of education, training, assistance and supper, in order to change their ways making them law-abiding citizens.

Denunciation

Court may decide to impose a sanction that is harsh enough to show it's disapproval. This is designed to convey the message that this type of criminal behaviour will not be tolerated by courts.

Role of Victorian Courts

Determine a criminal case - If a accused pleads not guilty, the court must decipher if the accused is guilty by managing and hearing criminal proceedings. Impose a sanction - After the accused pleads or is found guilty, the court will set a date for a plea hearing. - Both parties submit relevant factors that should be taken into account for sentencing. - Following the hearing, the judge or magistrate will hand down a sanction at a sentencing hearing.

Community Corrections Order

Explanation: A sanction that allows an offender to remain in the community whilst serving their sanction. This sanction requires the offender to comply with certain basic conditions which are attached to the order. In addition, the offender must comply with one other 'optional condition'. Purpose: A CCO serves as a punishment as it can impose certain conditions on a offender that are an annoyance, such as a curfew. CCO Also may help rehabilitate the offender, this is particularly so if the treatment and rehabilitation condition or alcohol exclusion is imposed, which aim to address the reasons for offending. When can it be imposed: A CCO can be imposed if the offence is punishable by more than 5 penalty units, the offender consents to the making of a CCO and cannot be imposed on a offender who has committed a Category 1 or 2 offence (murder, rape etc.) Conditions: Mandatory conditions, which apply to every offender. Optional conditions, which are specific to an offender.

Deterrence

Law aims to discourage the offender and others in society from committing the same or similar crimes in the future by imposing a penalty that is severe enough that the offender and others may see the consequences of committing that crime.

Court proceedings individual rights

Many rights for court proceedings are protected by HRC, including: - Having the charge or proceeding decided by a competent, impartial court after a fair and public hearing. - Be presumed innocent until proven guilty. - Be informed promptly in detail the nature and reason for the charge. - Have adequate time and facilities to prepare the defence. - Be tried without unreasonable delay. - Have legal aid if the interests of justice require it. - Have the assistance of an interpreter if necessary. - Having the opportunity to challenge and rebut the evidence against them, including cross examining.

Factors that may reduce the sentence

Nature and gravity of offence - If the offending is on the low end of the scale, this will persuade the court to be less harsh with a penalty. Early guilty plea - If the offender has pleaded guilty, and the earlier the plea is, the court may impose a lesser sentence. This is done due to the saving of resources and inconvenience. Lack of prior offending - If the offender hasn't offended before, this is likely to work in his favour to show a one-off incident or lack of criminality. Remorse - If the offender shows significant remorse, then the court may take this into account, this is shown by apologises, corporations, admissions or a early guilty plea.

Factors that may increase the sentence

Nature and gravity of offence - If the offending is on the high end of the scale, it is possible the court may view a higher sentence as more appropriate. Previous offending - If the offender has engaged in previous criminal behaviour, this may result in sentence increasing. Impact of the offence on any victim - If the victim has suffered significantly as a result of the offence, then this can persuade the court in sentencing. This is demonstrated through the use of a victim impact statement which is read in court. Injury, loss or damage as a result of the offence - If there was a significant injury, lose or damage to property or a person, then this may increase the sentence.

Punishment

One purpose is to penalise the offender, allowing victims and their families to seek retribution without taking law into their own hands. If law was taken into individuals own hands, crime would increase and there would be no social cohesion. Therefore courts must take revenge in behalf of society by imposing a sanction that will punish the offender.

County Court - Criminal Jurisdiction

Original Jurisdiction: Indictable offences except murder, attempted murder, conspiracies, corporate offences. Appellate Jurisdiction: From the Magistrates' Court on a conviction or sentence.

Coroners Court - Criminal Jurisdiction

Original Jurisdiction: Investigations of sudden, violent deaths and deadly fires. Appellate Jurisdiction: No appellate jurisdiction

Children's Court - Criminal Jurisdiction

Original Jurisdiction: Offences committed by children between 10 and 17 (except for certain offences). Appellate Jurisdiction: No appellate jurisdiction

Supreme Court (Trial Division) - Criminal Jurisdiction

Original Jurisdiction: Serious indictable offences Appellate Jurisdiction: From the County Court or the Supreme Court (with leave).

Magistrate Court - Criminal Jurisdiction

Original Jurisdiction: Summary offences, indictable heard summarily, committal proceedings, bail and warrant applications. Appellate Jurisdiction: No appellate jurisdiction.

Arrest institutional powers

Police may arrest anybody without a warrant if they believe it is necessary to: - Ensure the appearance of the offender in court - Preserve public order - Prevent the continuation of an offence or the commission of a further offence - Ensure the safety of the public or the offender

Imprisonment insitutional rights

Prison Officers are provided with various powers to enable them to manage the prisons, including: - Power to search and examine any person. - Seize unauthorised goods - Arrange for medical tests for alcohol or drugs - Require a prisoner to be electronically monitored. - Power to open, inspect and read a letter sent to a prisoner.

Imprisonment individual rights

Prisoners are given particular rights under statute law, including: - Right to be in open air for at least a hour a day (weather permitting) - Right to be provided with adequate food, considering special dietary food. - Right to be provided with suitable clothing. - Right to have access to reasonable medical and dental care. - If prisoner is disabled or ill, the right to the appropriate special care or treatment. - Right to receive at least one half hour visit a week.

Purposes of Sanctions

Punishment Deterrence Denunciation Rehabilitation Protection

Protection

Seeks to ensure the safety of society by imposing a sanction that will prevent the offender from harming again. This may be done by requiring the offender to serve a term of imprisonment to remove the offender from society.

Strengths of criminal jury system

Strengths - Jurors are independent and impartial, independent of legal and political system. Thus ensuring equality and fairness. Allows for community to be involved in the process. Increases community confidence in legal system, and ensures verdict reflects society's current values. Ensures fairness by requiring jury to deliberate based on evidence and facts not on independent research or investigations. Spreads the responsibility and thus the decision is more likely to be fair rather than it being made by one person.

Court Hierarchy - Appeals

The court hierarchy enables the parties to appeal their case to a higher court if they are not satisfied with their decision.

Victoria Police

- Governed by the Victoria Police Act 2013 (Vic). - Role of the Vic Police is to serve the Victorian community and uphold the law to promote a safe, secure and orderly society. Their role in enforcing law is to: - talk to possible victims/witnesses - question suspects - examine crime scene - look for and gather evidence - conduct searches - arrest accused persons - charge people with the offences. - For summary offences, police have the power to prosecute in court, for indictable offences, police investigate, gather evidence and charge the accused persons. The information will then be sent to the OPP.

VicRoads

- Have the authority to prosecute certain road and traffic offences. They may also issue infringements notices for breaches of road rules.

Questioning institutional powers

- If a person has been arrested and is in custody for suspicion of committing an offence, a official has the power to question within a reasonable time. - The person will be questioned in order to determine what involvement, if any, they had in the offence.

Questioning individual rights

- The person must be informed that they do not have to say anything, and if they do, it may be used as evidence, and the evidence will be recorded if the crime is indictable. - The person must be informed that they can contact a friend/relative or a legal practitioner. - The person has right to an interpreter if necessary. - Communication with legal practitioner must be private. - Questioning may only occur within a reasonable amount of time. - The person being questioned may stay silent and doesn't need to respond to any questions. - If the person is under 18 years then a parent/guardian must be present.

Bail individual rights

A person accused of an offence and held in custody shall be granted bail: - Within 24 hours after they are taken into custody if it is not practicable to bring the person before a Magistrate/bail justice. - During any postponement of the hearing of a charge for the offence or while awaiting trial. - When the case has been adjourned or when awaiting sentence.

Court Hierarchy - Administrative Convenience

Because courts have different jurisdiction to hear different matters, it allows smaller and minor cases (which there is a lot of) to be heard in the Magistrates (of which there is a large number of in the state), and more complex and larger cases may be heard by the County and Supreme Court.

Court Hierarchy - Specialisation

Court hierarchy allows for specialisation/expertise, with the courts developing expertise in dealing with the types of cases that come before them. This allows courts to hire specific staff for these types of crimes, increasing court efficiency.

Court Hierarchy - Doctrine of Precedent

Court hierarchy is a necessary part of the doctrine of precedent, as the process of making common law depends on a decision being made in a higher court which is binding on lower courts.

Role of the Criminal Jury

The jury in a criminal trial must: - Listen to all evidence and facts presented in court. - Concentrate during trial. - Piece the evidence together and decipher if the accused is guilty or not. - Finding of guilt must be beyond reasonable doubt and must try to reach a unanimous verdict or a majority verdict.

Bail institutional powers

The prosecutor can apply to revoke bail if: - The person has been charged with certain offences such as murder - When the court is satisfied there is an unacceptable risk that the accused would fail to surrender back into custody, commit an offence, endanger the public or interfere with the witnesses or the course of justice. - Conditions may be imposed as part of bail including the accused report to police station, reside at a address, not contact specific people, surrender their passport or not to drive a motor vehicle.

Weaknesses of criminal jury system

Weaknesses - Jurors do not give reasons for their decisions and deliberations are held behind closed doors, thus it is unknown if procedural fairness in the decision has been made. The task is difficult, especially when there is complicated evidence or a lot of evidence. Ordinary members may not be able to understand this evidence and come to the correct decision. Jurors may be unduly influenced by skilled barristers or by the emotional elements of a trial. Jurors may have biases that may play a role in their deliberation Jury trial may result in delays because legal terms must be explained and the judge must give directions to the jury during the case.