Chapter 8 – Criminal Procedure

1. Chapter 8 – Criminal Procedure

2. Why we have laws • Laws establish a code of conduct • Laws protect the community from harm • Laws reflect changing values and circumstances • Resolution of disputes

3. Case Study – What do you think? • In November 2008, a female driver was responsible for the death of her boyfriend after an accident in Hastings. The couple had been skinny dipping and drinking alcohol at a local beach. She was driving at 104 km/h in a 90 km/h zone when she lost control of her car and crashed into a light pole. The driver pleaded guilty to the charge and the dead boy’s family made a plea to the County Court that the driver of the car not be jailed. The boy’s mother told the court that the defendant had suffered enough and she deserved support at that time. It was presented in evidence to the court that the girl suffered from significant mental illness. She had been diagnosed with affective bipolar disorder, had made a number of suicide attempts and had spent time in a substance abuse program. • The judge sentenced her to a community-based order, for which she would do work in the community and receive treatment for her illness and addiction. She was also banned from driving for 18 months. • Maximum penalty is 10 Years Jail (Section 319 – Crimes Act (Vic)) • http://www.theage.com.au/national/teen-pleads-guilty-over-crash-that-killed-boyfriend-20100215-o1dk.html

4. Your Turn You have just arrived home from school and go around the back to enter the house. No one is home, but the back door is open. You can see into the family room and the television and gaming console are missing. What happens next? create a flow diagram of what they think will take place from the time a crime is detected through to the final sentencing stage.

5. What is a crime • Involves behaviour that is considered unacceptable because it is against an existing law and is deserving of punishment (referred to as a sanction). • Ripple diagram. (Who is effected by crime????) You are walking home from school, thinking about your legal studies homework. Suddenly you hear a screech of brakes, and turn to see a young man hit by a car and fall to the ground. The car stops momentarily and then speeds off. You have noticed that it was a blue sedan and have part of the rego.

6. Types of crime • Three broad categories • Summary Offences • IOHS offences • Indictable offences also referred to as serious indictable offences

7. Presumption of Innocence • A person is presumed innocent until such time as; • Plead Guilty • Found guilty by a jury • Found guilty by a Magistrate

8. Right to silence • This is an underlying principle in pre-trial and trial procedures • The right to silence is a legal principle that is base on the presumption of innocent till proven guilty • The accused does not have to answer any questions • The prosecution has the burden of proof • This right is recognised in the Victorian Charter of Human Rights and responsibilities • Case study P.295.

9. Double jeopardy laws • Prior to 2011, if you had been charged and acquitted of an offence it would have been fair for you to consider yourself free of that charge in the knowledge that you could not be recharged with that same matter even if you then admitted to the crime. • This is known as double jeopardy. • The rules have now changed thanks to retrospective legislation in Victoria • The court of appeal via the DPP can order a retrial if it is considered to be in the interest of justice • http://news.smh.com.au/breaking-news-national/new-evidence-in-walsh-st-police-killings-20110914-1k847.html

10. Parties in criminal proceedings • Adversary system implies that two parties are involved Prosecution & the Defence • Prosecution represents the state and carries both the Burden and Standard of proof regarding any prosecution • (Standard of Proof) Beyond reasonable doubt

11. Your Turn • Questions 1 – 6 Page 296