6.2 The jury system and court processes aim to achieve a fair and unbiased hearing

Right to silence (Arrest and Trial)

Right to bail Use of juries Appeals process Fair and equity in

sentencing Open court system

1

Right to silence

One feature of Victorian law is that an accused person has the general right to silence, meaning they cannot be compelled to answer police questions during investigations (other than generally providing their name and address) and cannot be compelled to give evidence during their trial or disclose key elements of their case to the prosecution prior to trial. Furthermore, juries cannot assume an unwillingness to provide evidence infers the accused is guilty.http://www.theage.com.au/federal-politics/the-question/should--the-right--to-silence-be-removed-20120120-1qa1z.html

2

Discuss whether or not the right of an accused to not testify during their trial and the right of the defence not to disclose key elements of their case to the prosecution prior to trial impedes the achievement of a fair hearing.

Right to Bail Individuals who have been

charged with an indictable criminal offence have the legal right to apply to be granted bail; that is, to be released from police custody until their next court date

Own UndertakingConditionalSurety Being granted bail allows the

accused to remain in society with their family and friends, and to prepare their defence.

An accused who is denied bail is held or remanded in custody.

3

Trial by Jury Provides for a fair and unbiased

hearing. In criminal cases a jury of 12

independent people determine the verdict

Unanimous verdict required Majority verdict may be

accepted in certain circumstances 11/12

Judge does not decide In civil cases a jury of 6

members Having 12 jurors who reflect a

cross-section of society determine a unanimous verdict, rather than one judge, can increase the likelihood of a correct verdict (Or does it)????

4

Right to appeal

Parties who are dissatisfied with the outcome in their dispute may have the opportunity to lodge an appeal or have their case reviewed by a superior court.

Both parties may appeal if they believe the judge or magistrate has made an error in law that has led to an unfair trial.

http://www.theage.com.au/national/14-retrials-due-to-judge-errors-20091225-lf2n.html

In a criminal case the prosecution may also appeal against the leniency of a sentence.

5

Fair and consistent sentencing

While recognising that the circumstances of each case may differ, there is a need to ensure that offenders who commit similar crimes receive similar sanctions

Consistent sentencing is vital to maintain confidence in the legal system; however, it can be difficult, as sentencing judges must impose a sanction that is fair for the offender, the victim and society.

R v RPJ [2011] P.237

6

Right to an open hearing

Transparent and accountable system of justice

Generally all trials are open to the public unless circumstances dictate it to be a closed hearing

Jaidyn Leskiehttp://www.heraldsun.com.au/news/law-order/jaidyn-leskie-case-closed/story-fnat7jnn-1226394861652#mm-premium

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Your Turn

Questions 1 – 5 located on Page 238 of text book

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