Reforms of Criminal Procedure:
In 2005 a Victorian report noted that Indigenous people were still experiencing disadvantage in their dealings with the criminal justice system and engagement with the police. This included problems associated with high incidents of arrest, unwarranted violence, lower use of cautioning leading to high minor convictions recorded. As a response, police Aboriginal Liaison Officers were introduced as part of a scheme targeting this issue. These officers were employed to deliver and coordinate police training on specific issues in relation to Indigenous offenders to ensure a better understanding of cultural sensitivity and awareness.
Suggested reforms of Criminal Procedure:
One suggested reform of criminal procedure is the notion of providing the accused with an indication of the sentence they are likely to receive if they plead guilty. A sentence indication procedure will assist the accused weigh up their options and should lead to faster resolutions and thereby shortening the delay process. This upholds the notion of providing a timely resolution for disputes.
How the Criminal Procedure contributes to an Effective Legal System:
Fair and unbiased:
The notion of a fair and unbiased legal system is fundamental. This is because parties that engage in the system should be confident that they will be treated equally and have the opportunity to present their case without any bias. In that aspect, they should also receive a fair opportunity to present their case without any unnecessary hindrance from the system.
One feature that supports the notion of a fair and unbiased hearing is the notion of bail. As the accused has a right to be deemed 'innocent until proven guilty', the notion of bail allows the accused the freedom to return home and therefore prepare their case for trial.
Another feature that reinforces the notion of a fair and unbiased system is committals. During committal proceedings, the Magistrate must be convinced that the case against the accused is strong enough with withstand conviction at trial. This prevents that accused from being arbitrarily accused and that only strong cases make it to court. Another aspect of strength of committals is that it allows the accused to learn and be aware of the prosecution's case against them and thereby evening up the two sides.
However, there are aspects that hinder the notion of a fair and unbiased hearing. Firstly, an accused may not receive bail. If the accused is charged with an indictable offence such as murder or treason, they are not given the opportunity for bail. The accused may also be refused bail based on other factors such as prior convictions or the likelihood to abscond. This contradicts the notion of a fair and unbiased hearing because even though not proven guilty, the accused is already 'judged' as they have lost their freedom.
Another feature that doesn't support the notion of a fair and unbiased hearing is the lack of presence by the jury. Juries are not used in the Magistrates court and therefore the adjudicator must make the decision based on a being convinced beyond a reasonable doubt. If the adjudicator has bias towards the accused, this may impact their decision.
Effective Access:
The idea of effective access is important to upholding an effective legal system. A legal system cannot be said to be effective if the people it is there to serve cannot have access to it without undue hardship such as costs. Therefore, the system should have mechanisms available that supports individuals that do not have the necessary means to be represented in court.
One way in which the criminal procedure reinforces the idea of effective access is through the availability of Victorian Legal Aid. This government funded service ensures that people who cannot afford or easily gain access to legal representation are given it, generally for free or at very low costs. This provides a means for the accused to have a legally trained representative assist in the preparation of their case and the presentation of their defence.
Despite the existence of Victorian Legal Aid, the criminal system is limited in its ability to provide access to people when compared to the civil procedure. Unlike civil disputes, individuals charged with offences can only engage in the court system which can be a costly and timely process. As there are no other avenues to resolve the issue, individuals are left without a choice but facing potential delays and high costs.
Timely Resolution of Disputes:
An effective legal system must ensure that it resolves disputes in a timely manner. A system that does not provide this can deny its users justice such as those that are waiting in remand while their trial is being organised or cause undue stress to families of victims of the accused is not brought to justice.
One aspect that assists to provide the notion of timely resolution of disputes is committal hearings. Committals are pre-trial procedures that are designed to reduce delays through determining whether there is sufficient prima facie evidence to warrant a trial. A Magistrate will preside over the hearing and based on the evidence presented by the prosecutor, determine if the case will continue to trial. This saves time because weak cases will not clog up the courts and it allows both parties to determine any issues that may potentially cause delays later on to be ironed out so that the trial can proceed in a continuous manner.
In saying that, it has been suggested by the Attorney General at the process of committal hearings be abolished. Here, the belief is that committals in its own way, can hinder the notion of timely resolution for disputes. This is because the process of committals can cause an "unnecessary examination of the case" the causes backlog and wastage of the court's time. Rather than having to convince a Magistrate at a hearing, the cause should be able to proceed directly to trial or take the form of a more efficient 'hand up brief' stage whereby evidence is tendered by the prosecution simply containing the charges and summary of evidence.
In 2005 a Victorian report noted that Indigenous people were still experiencing disadvantage in their dealings with the criminal justice system and engagement with the police. This included problems associated with high incidents of arrest, unwarranted violence, lower use of cautioning leading to high minor convictions recorded. As a response, police Aboriginal Liaison Officers were introduced as part of a scheme targeting this issue. These officers were employed to deliver and coordinate police training on specific issues in relation to Indigenous offenders to ensure a better understanding of cultural sensitivity and awareness.
Suggested reforms of Criminal Procedure:
One suggested reform of criminal procedure is the notion of providing the accused with an indication of the sentence they are likely to receive if they plead guilty. A sentence indication procedure will assist the accused weigh up their options and should lead to faster resolutions and thereby shortening the delay process. This upholds the notion of providing a timely resolution for disputes.
How the Criminal Procedure contributes to an Effective Legal System:
Fair and unbiased:
The notion of a fair and unbiased legal system is fundamental. This is because parties that engage in the system should be confident that they will be treated equally and have the opportunity to present their case without any bias. In that aspect, they should also receive a fair opportunity to present their case without any unnecessary hindrance from the system.
One feature that supports the notion of a fair and unbiased hearing is the notion of bail. As the accused has a right to be deemed 'innocent until proven guilty', the notion of bail allows the accused the freedom to return home and therefore prepare their case for trial.
Another feature that reinforces the notion of a fair and unbiased system is committals. During committal proceedings, the Magistrate must be convinced that the case against the accused is strong enough with withstand conviction at trial. This prevents that accused from being arbitrarily accused and that only strong cases make it to court. Another aspect of strength of committals is that it allows the accused to learn and be aware of the prosecution's case against them and thereby evening up the two sides.
However, there are aspects that hinder the notion of a fair and unbiased hearing. Firstly, an accused may not receive bail. If the accused is charged with an indictable offence such as murder or treason, they are not given the opportunity for bail. The accused may also be refused bail based on other factors such as prior convictions or the likelihood to abscond. This contradicts the notion of a fair and unbiased hearing because even though not proven guilty, the accused is already 'judged' as they have lost their freedom.
Another feature that doesn't support the notion of a fair and unbiased hearing is the lack of presence by the jury. Juries are not used in the Magistrates court and therefore the adjudicator must make the decision based on a being convinced beyond a reasonable doubt. If the adjudicator has bias towards the accused, this may impact their decision.
Effective Access:
The idea of effective access is important to upholding an effective legal system. A legal system cannot be said to be effective if the people it is there to serve cannot have access to it without undue hardship such as costs. Therefore, the system should have mechanisms available that supports individuals that do not have the necessary means to be represented in court.
One way in which the criminal procedure reinforces the idea of effective access is through the availability of Victorian Legal Aid. This government funded service ensures that people who cannot afford or easily gain access to legal representation are given it, generally for free or at very low costs. This provides a means for the accused to have a legally trained representative assist in the preparation of their case and the presentation of their defence.
Despite the existence of Victorian Legal Aid, the criminal system is limited in its ability to provide access to people when compared to the civil procedure. Unlike civil disputes, individuals charged with offences can only engage in the court system which can be a costly and timely process. As there are no other avenues to resolve the issue, individuals are left without a choice but facing potential delays and high costs.
Timely Resolution of Disputes:
An effective legal system must ensure that it resolves disputes in a timely manner. A system that does not provide this can deny its users justice such as those that are waiting in remand while their trial is being organised or cause undue stress to families of victims of the accused is not brought to justice.
One aspect that assists to provide the notion of timely resolution of disputes is committal hearings. Committals are pre-trial procedures that are designed to reduce delays through determining whether there is sufficient prima facie evidence to warrant a trial. A Magistrate will preside over the hearing and based on the evidence presented by the prosecutor, determine if the case will continue to trial. This saves time because weak cases will not clog up the courts and it allows both parties to determine any issues that may potentially cause delays later on to be ironed out so that the trial can proceed in a continuous manner.
In saying that, it has been suggested by the Attorney General at the process of committal hearings be abolished. Here, the belief is that committals in its own way, can hinder the notion of timely resolution for disputes. This is because the process of committals can cause an "unnecessary examination of the case" the causes backlog and wastage of the court's time. Rather than having to convince a Magistrate at a hearing, the cause should be able to proceed directly to trial or take the form of a more efficient 'hand up brief' stage whereby evidence is tendered by the prosecution simply containing the charges and summary of evidence.