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Student book questions3.1 Introduction to the criminal justice systemPages 42–45

3.1 Check your learning

Define and explain

1 Explain what is meant by the term ‘criminal justice system’.

The criminal justice system investigates and determines criminal cases through a series of processes and institutions such as the police, the courts, pre-trial procedures and sentencing.

2 Is there one single unified criminal justice system in Australia? Explain.

There is no one single unified criminal justice system in Australia as the power to make laws about crime vests with each state, not the federal parliament. Therefore, each state has its own laws relating to crime.

3 Identify four persons or organisations that are able to prosecute a case in court.

Student answers may vary but may include:

• Office of Public Prosecutions

• Director of Public Prosecutions

• Victoria Police

• Local councils

• VicRoads

• WorkSafe Victoria.

Synthesise and apply

4 Read the legal case DPP v ABD Group Pty Ltd.

a Who were the parties in this case?

Director of Public Prosecutions and ABD Group Pty Ltd

b Describe the nature of the offence said to have been committed.

ABD Group was charged with a failure to ensure its workplace was safe and free from risk to health. An incident occurred where an employee slipped on sawdust and fell 2.8 metres.

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

c Did ABD Group Pty Ltd plead guilty? Justify your answer.

ABD Group pleaded not guilty. A jury found ABD Group guilty, which means a trial occurred. A trial does not occur if the defendant pleads guilty; instead, they just face sentencing.

5 Visit the Australasian Legal Information Institute (AustLII) website (provided on your obook assess) and locate the page which contains this year’s County Court judgments.

a Find a recent criminal judgment in which a sentence was handed down.

Student answers will vary.

b Provide a summary of the parties to the case, the charges alleged against the accused, and the sentence.


c Now write some questions for another student in your class to answer based on your summary of the judgment.



Student book questions3.2 The principles of justicePages 46–51


Define and explain

1 Identify the three principles of justice and provide a brief description of each.

The three principles of justice are fairness, equality and access.

Fairness means having fair processes and a fair hearing. For example, the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events; and the prehearing and hearing (or trial) processes should be fair and impartial.

Equality means people should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage.

Access means that all people should be able to understand their legal rights and pursue their case.

2 Is fairness limited to a fair trial? Explain your answer.

The concept of fairness is not limited to a fair trial but extends to the whole of a criminal case. Everyone is entitled to fair processes, as well as a fair hearing.

3 Describe what is meant by access to the criminal justice system.

Access to the criminal justice system means everyone is able to understand their legal rights and the legal process. This extends to access to legal advice, legal education and information about the legal processes and outcomes.


4 Identify three different people who have an interest in the sentence passed on a person found guilty of an offence. How might each of them define a ‘fair’ sentence?

Student answers will vary but may include:

• The victim and their family and friends: A fair sentence would be one they think adequately matches the harm caused; as they have a close connection to the case, this may be a tough penalty.

• The perpetrator and their family and friends: A fair sentence would be one they think matches the crime but takes into account other circumstances that may have affected the perpetrator’s behaviour; this may therefore be more lenient.


• The Crown: A fair sentence is one that matches the crime, and this is determined by the sanctions imposed in the criminal law and previous case law.

• Society and the broader community: Society will have an interest in deterring members of the public from committing the same crimes. To this end, depending on the severity of the crime, it may seek a tough penalty to stop others from exhibiting the same behaviour.

5 Imagine you are a teacher in a classroom. Create a situation where you might be seen to be treating students equally, but not fairly.


6 Read the Example ‘Sally’s inability to access the legal system’. Explain how each of the three principles of justice may not be achieved in this case, and what could be done to make sure they are achieved.


• Fairness: Sally currently does not have an opportunity to pursue a case against her former partner as she does not understand her legal rights to pursue a case. Given Sally’s impairment, she will need to be treated differently so that she is afforded the same level of fairness as other people. This could be achieved by providing Sally with a free lawyer who can explain what she can do to pursue her case. Alternatively, she could be provided with the opportunity to talk to a social worker or someone who can help her communicate her abuse, and report it on Sally’s behalf.

• Equality: Sally has a hearing disability, intellectual impairment and mental illness and these are currently affecting her ability to present her case to someone who can help her. To prevent the system disadvantaging Sally due to her disabilities, it is important that she is provided with free legal advice and support. Ensuring measures are in place to assist with her hearing disability in the court room will also ensure she is treated equally before the law.

• Access: Sally cannot access the criminal justice system due her inability to pay for a lawyer. Sally needs to be able to access the processes and institutions that can assist her. With help from these bodies, she will have access to advice, education and information to help her pursue her case.

Analyse and evaluate

7 Look back at Source 2. With a partner, discuss whether the cartoon depicts fairness or a lack of fairness. Discuss possible alternative ‘exams’ for the animals that might achieve fairness.

Student answers will vary. Sample answers have been provided in the table below.

‘Fairness’ ‘Lack of fairness’

• All animals are being assessed by the same benchmark.

• The assessor is not treating any animal with fear or favour (and is therefore acting impartially and unbiased).

• The ‘exam’ will benefit the abilities of certain animals over other (e.g. the monkey can easily climb a tree whereas the fish cannot).

• Fairness doesn’t always mean everyone


being treated exactly the same – in this situation, each animal should be treated differently (different ‘exams’) to ensure a fair outcome.

8 Access former Chief Justice Marilyn Warren’s speech called ‘What is justice?’ A link is provided on your obook assess. Your teacher will divide up the paragraphs between you to summarise. Once you have done so, come together as a class and discuss the following questions:

a Is there a single definition of justice? If not, why not?

No, the definition of justice is context-dependent. This means that, depending on the perspective/position of an individual, their understanding of ‘justice’ may differ. For example, a lawyer would view justice in terms of the correct and fair application of the law, whereas a victim views it in terms of what they consider to be appropriate punishment for the offender. The lawyer’s view is objective and based within the rule of law. The victim’s view is influenced by emotions and societal standards of the time. Therefore, depending on the individual, the situation and the era, the concept of justice can be framed differently.

b Whose interpretation of justice is most important in the legal system?

For the legal system to be effective, it must be able to apply the law fairly and consistently without fear or favour as well as meet the community expectations of the time (among other objectives). Therefore, it is important to consider the range of interpretations of justice, rather than focusing solely on one perspective and ignoring others. In so doing, the interpretations will take into account the needs of victims, offenders and the broader community.

c What conclusions can you draw from this speech about the meaning of justice?

‘Justice’ is an intangible concept with many layers. The application and achievement of justice must therefore be viewed in light of all of these layers. Furthermore, the understanding of justice both on a societal and individual level is ever-evolving and needs continual reflection and evaluation.


Student book questions3.3 Key concepts in the Victorian criminal justice systemPages 52–56


Define and explain

1 Outline two differences between summary offences and indictable offences.


• Summary offences are minor criminal offences, whereas indictable offences are serious in nature.

• Summary offences are heard in the Magistrates’ Court, and indictable offences are heard in the County or Supreme Courts. However, note that some indictable offences can be heard summarily in the Magistrates’ Court by consent of the court and the accused.

• Summary offences will not be heard by a jury, but indictable offences will be heard by a jury if the accused pleads not guilty.

• The name of the final hearing is different for the two: summary offences conduct a hearing, whereas indictable offences are heard at a trial.

• The source of the offences is different: summary offences are set down in the Summary Offences Act 1966 (Vic), but indictable offences are listed in the Crimes Act 1958 (Vic).

2 Who has the burden of proof in a criminal case? What is the reason for this?

In a criminal case, the prosecution needs to prove the accused committed the crime; therefore, it holds the burden of proof. This is because if the prosecution is accusing a person of committing a crime, it should also be responsible for providing facts to prove this.

3 Define the term ‘the presumption of innocence’, and explain three ways it is upheld in a criminal case.

The presumption of innocence is the right of a person accused of a crime to be presumed to be not guilty until it is proved otherwise.


• The presumption of innocence is upheld through the high standard of proof required in a criminal case – that of beyond reasonable doubt.

• It is upheld through placing the burden of proof on the prosecution (those accusing a person of committing a crime).


• It is upheld through the system of bail, which will allow a person to receive bail while they wait for their hearing unless there are good reasons why they should be held in custody.

Synthesise and apply4 Two co-accused have been charged with the murder of a young girl. A great deal of

forensic evidence has been put to the jury during the trial. Evidence showed:

• the fingerprints of both co-accused were found on the murder weapon

• the blood of the girl was found in one of the co-accused’s cars

• neither of the accused had an alibi (i.e. proof they were somewhere else at the time).

a Imagine you are a member of the jury for this trial. Write down as many ‘fanciful, imaginary or unreasonable’ doubts as you can.

• That an unknown person planted the victim’s blood in the car

• The car had been taken, used to transport the victim’s body and then returned so it appeared as if the accused was responsible

• The victim had tried to steal the car and cut herself in the process, leaving blood in the car

b Describe why each of the doubts you have listed might be considered fanciful, imaginary or unreasonable.

• Doubts are considered fanciful, imaginary or unreasonable when they are not based on fact (evidence presented) or aren’t realistic.

• There is no evidence presented to indicate that there was a third, unknown person who planted evidence.

• It is unrealistic to suggest that the person who stole the car and used it to transport the body would then risk returning the car, rather than dumping it elsewhere.

• There is no evidence to suggest the car had been broken into, nor do the injuries on the victim’s body support this idea.

c Now try to think of two or three reasonable doubts you may have based on the evidence provided.

• The blood in the car was from an earlier time (assuming the accused knew the victim) with a plausible explanation as to why it was there: for example, she injured herself playing sport and the accused drove her home (this is also dependent on where the blood was located).

• The murder weapon was an object likely to be handled by multiple people during normal daily activities, and the co-accused could explain how their fingerprints got on the weapon: for example, the weapon was a kitchen knife and all three people lived together. Another example could be that the murder weapon was an ashtray at a bar where both the co-accused were at earlier in the night before they left and walked home


alone. If no one was able to verify their whereabouts after they left the bar, this would account for their lack of an alibi.


5 In the 1760s, William Blackstone, an English judge, stated that ‘it is better that ten guilty persons escape than that one innocent suffer’. Do you agree with this statement? Give reasons for your answer.

Student answers will vary. Sample answers are provided in the table below.

Agree Disagree

• It is better that a few guilty individuals are not convicted due to failing to meet the standard of proof, rather than sentence an innocent person to suffer for a crime they did not commit

• Supports the principle of innocent until proven guilty by having such a high threshold to meet, even though this may result in some guilty persons not being convicted

• The risk to society is too high (10:1). This leaves too many dangerous persons free to potentially commit further crimes and endanger members of the community

• One innocent suffering is an ‘acceptable’ price to ensure that those who have committed a crime are punished for their act(s)

6 Bail seeks to balance the presumption of innocence and the protection of the community.

a Find one article or commentary that argues that the bail system achieves this goal and one article or commentary that argues it does not.


b What arguments are put forward in each article to support the writer’s view?


c What is your view? Be prepared to discuss your view with your classmates.



3.4 The rights of an accusedPages 57–63


Define and explain

1 What are human rights?

Human rights are a collection of basic rights that all members of society are entitled to. There are specific rights related to people accused of crimes and the conduct of criminal investigations.

2 Identify the main source of law protecting human rights in Victoria. What international treaty are these rights based on?

Human rights are protected in Victoria by the Charter of Human Rights and Responsibilities Act 2006 (Vic). The rights protected are based on those in the International Covenant on Civil and Political Rights 1966.

3 a Describe three rights that are available to an accused in a criminal proceeding.


• The right to be tried without unreasonable delay: This right guarantees that the accused’s hearing is conducted in a timely manner without unreasonable delay as this could infringe on a person’s right to liberty.

• The right to a fair hearing: This right ensures that any charges are heard by a competent, independent and impartial court and that the hearing is open to the public to allow for greater transparency of court proceedings and decisions.

• The right to trial by jury: This right ensures that an accused is judged by peers – ordinary members of society, rather than legal professionals. The purpose of this is so that an accused is judged by community standards.

b Explain any exemptions or exceptions for each right.

• The right to be tried without unreasonable delay: A delay may occur but will be assessed as to the reasons for, and length of, the delay, taking into account the complexities of the case and the relevant areas of law.

• The right to a fair hearing: There may be instances where the general public and media are excluded from cases regarding sexual offences. In such situations, the court will determine if the proceedings should be made public by considering a range of factors, including if it would cause any undue stress to the victim

• The right to trial by jury: This right does not apply to summary offences and, although protected under the Australian Constitution, only ensures the right to a jury for Commonwealth indictable offences – and most indictable offences are state based.


4 How does a right to a trial by jury for an indictable offence uphold equality?

The right to a trial by jury ensures that the accused is judged by a collection of peers, and by providing for community involvement, the law is applied in accordance with community standards, with the accused less likely to face inequality before the law due to their personal characteristics.

5 What is meant by the term ‘unreasonable delay’, and what delays may be considered ‘reasonable’?

Everyone has a right to liberty, so hearings must be conducted in a timely manner and delays should only occur if they are reasonable. A reasonable delay will depend on the legal issues involved and the complexity of the case.


6 Your friend has been charged with drink driving, and believes she is entitled to a jury trial under the Australian Constitution. Is she correct? Justify your answer.

Crimes are generally made under state law, not Commonwealth law, as there is no power to make law generally under the Australian Constitution. Commonwealth offences generally affect the whole of Australia. A drink-driving offence will therefore come under state law. Trials by jury are only protected in the Australian Constitution for Commonwealth indictable laws; therefore, as drink driving is a state summary offence, the friend does not have a right to trial by jury under the Australian Constitution.

7 In Gray v DPP, how did Justice Bongiorno attempt to remedy the fact that there may not be a timely trial?

Justice Bongiorno acknowledged that Gray’s trial may be delayed, though the reasons for this are not explained. As Gray would remain in custody until the trial, this delay would infringe on his right to liberty, security and the presumption of innocence. To remedy this, Justice Bongiorno ruled that Gray could be released on bail. This means that, because of the delay, Gray was given the right to not be held in custody while he awaited trial and this enabled the principle of fairness to be upheld.

8 Look back at the legal case Dietrich v The Queen and complete the following tasks:

a As a class, write down all the questions that you have about this case on separate sticky notes (or small pieces of paper). For example:

• ‘Was there a retrial?’

• ‘Where is he now?’

• ‘Why should an accused be entitled to a legal representation?’


b When the whole class has finished, use a wall or the whiteboard in your classroom to put up all of your questions. If any questions are similar (or exactly the same), group them together.



c Once you are done, choose the top five questions that people most want to know the answers to.


d Form five groups. Your teacher will assign you one of the questions. Spend 10 minutes researching and discussing the answer.


e Share the results of your research with the other groups in your class.



9 Conduct a debate or engage in a class discussion about one of the following two statements. When conducting the debate or discussion, ensure there is reference made to the principles of justice.

a All criminal trials and hearings should be determined by a jury.


Agree Disagree

• Being trialled by one’s peers is a foundation of our justice system. Therefore, all criminal cases should have equal access to this process.

• Juries ensure community standards are upheld for all criminal cases.

• A jury trial allows for the accused to always have some say over who determines their case.

• A jury is time-consuming and is not necessary for minor (summary) offences.

• Some cases are better suited to a judge alone due to the complexity of the evidence and its application to the relevant areas of law.

• Juries in criminal cases are costly and paid for by the state, making them unnecessary for all criminal cases.

b All people should have legal representation in criminal trials and hearings, regardless of the seriousness of the offence.


Agree Disagree

• All individuals have the right to present the best case possible, and legal representation assists in making this possible.so

• The law and criminal/courtroom procedures are complex, and legal representation is needed to navigate the

• For minor (summary) offences, legal representation is not always necessary for straightforward cases (such as strict liability cases).

• The accused should have the choice to use and pay for legal representation if


legal system. they wish.

10 You have met several people who do not believe that an accused should have any rights. They refer to a number of criminals who have recently been convicted for violent crimes. Create a list of three arguments that you might use to convince those people that rights are necessary for everyone.

Student answers will vary. Sample answers are provided below:

• Presumption of innocence: All individuals are entitled to the presumption of innocence no matter how violent the crime they are charged with is.

• upholding an accused’s rights ensures due process is maintained and correct processes are followed in determining their guilt, guaranteeing an effective, impartial justice system.

• upholding an accused’s rights ensures equality of treatment under the law, regardless of the degree of violence.

11 ‘There should be a mandatory time by which cases should be determined, and if that time passes, the charges should not be able to proceed’. To what extent do you agree with this statement? Give reasons.

Student answers will vary, but some common responses are provided in the table below as an example.

Agree Disagree

• A mandatory time upholds the accused’s right to trial without unreasonable delay.

• Evidence can deteriorate over time (for example, accuracy of eyewitness testimony)

• A lack of timeframe could unfairly affect the accused – for example, if they are held in remand for very lengthy periods, the impact on their relationships and mental state. This is especially important when the accused is found ‘not guilty’.

• An outcome should be determined no matter how long it takes.

• Tactics may be used by the defence to delay an outcome in an effort to stop charges from being pursued.

• Different cases require different degrees of investigation, and it would be difficult to apply a standard timeframe to all cases. Cases may have issues that arise throughout the process which require further investigation, delaying a determination to be made.


3.5 The rights of victimsPages 64–71


Define and explain

1 Explain what is meant by the Victims’ Charter, and who is a victim under that charter.

The Victims’ Charter is an act of the Victorian Parliament that recognises the impact of crime on victims, and details what information victims should have access to during the investigation and prosecution process. A ‘victim’ is given a broad definition and will depend on the crime; however, generally, the following people will be considered a victim:

• a person who has suffered injury as a direct result of a criminal offence

• a family member of a person who has died as a result of a criminal offence

• a family member who is under 18, or mentally impaired and unable to manage his or her own affairs, and has suffered injury as a direct result of a criminal offence

• a child under 16 who has been groomed for sexual conduct, and their family.

2 Is a victim entitled to receive information about the likely release date of a prisoner? Explain your answer.

Victims can apply to be included on the Victims Register if they were a victim of an act of violence. Victims who are on the Victims Register are entitled to information about the likely release of the prisoner as this information will be of interest them because they have suffered violence at the hands of the prisoner. Some of the offences that are considered criminal acts of violence are rape, aggravated burglary, kidnapping, stalking, child stealing, assault and serious driving offences that cause injury.

3 Will a victim always be entitled to information about an investigation? Justify your answer.

No, a victim is not always entitled to information about an investigation. If the information might jeopardise a case, or the victim does not wish to receive the information, it does not need to be given. The Victims’ Charter lists specific information required to be provided to the victim unless one of the above exceptions applies. Any information outside of this scope may not have to be provided to the victim.


4 Create a poster or visual diagram which shows the various protections that may be available to a witness giving evidence in a sexual offence case. The poster should show whether each protection is available to all witnesses, to a complainant, or to persons with a particular vulnerability.



5 For each of the scenarios below, state whether each of the witnesses is entitled to the protections they seek.

a Darryl saw Alice disturbing a place of religious worship, which is a summary offence. Darryl has been called as a witness and he wants to give evidence by way of closed-circuit television.

No, Darryl is not entitled to give evidence via CCTV. This option is only available to witnesses in proceedings for sexual offences, family violence offences, offences for obscene behaviour in public and offences for obscene exposure in a public place. As the offence for disturbing a place of religious worship is not one of these, the protection is not applicable.

b Amanda is a witness for the prosecution in a proceeding where Samantha has been charged with singing an obscene song (the offence of using obscene, indecent, threatening language or behaviour). Amanda wants to be declared a protected witness, and she wants her mother by her side while she is giving evidence.

Being declared a protected witness is a protection for witnesses in sexual offence or family violence offence proceedings. Samantha is not entitled to be declared a protected witness. However, as she is a witness to an offence of using obscene, indecent, threatening language or behaviour, she is entitled to have alternative arrangements made to give evidence. This can include allowing a support person, such as a parent, to be beside her as she gives evidence.

c Anita has been charged with rape. The complainant is 15 years of age and wants a special hearing at which to give evidence. The complainant also does not want the accused to cross-examine her.

As rape is a sexual offence and the complainant is under the age of 18, the complainant is entitled to give evidence at a special hearing. One of the conditions of a special hearing is that the complainant is not to be cross-examined. The complainant is entitled to the protections they seek.

d Anis witnessed a murder, for which Andrew has been charged. Anis does not want any legal practitioners formally robed while he is giving evidence.

Anis is not entitled to this protection as requiring legal practitioners to remove formal robes is only available to witnesses in sexual offences, family violence offences, or offences of obscene behaviour in public or obscene exposure in public. Removing robes is one option for alternative arrangements in these cases only.

e Harriet is the complainant in a family violence case. She agrees to be in the courtroom when she gives evidence, but she doesn’t want to see the accused when she does so.

Harriet is entitled to the protection of not seeing the accused. As she is a complainant in a family violence case, the protections are automatically available to her. One alternative arrangement is the use of screens to block the accused from the complainant’s sight as they give evidence.

6 Read the article ‘Vic victims’ families denied compensation’.

a Who are the victims in this case?


The victims in this case are the family members of those who have died from a criminal offence.

b What are they seeking?

They are seeking information from the Victorian Government on the criminal and treatment histories of the convicted prisoners, who were all on parole when they committed their offences. They wish to use this information to make victim compensation claims for injuries suffered.

c What are the injuries they are alleged to have suffered?

They are alleging to have suffered psychological injuries as a result of the crimes.

d What is Greg Davies’ view?

Greg Davies, Victims of Crime Commissioner, does not agree with the documents being withheld as he believes it puts criminals’ right to privacy above the rights of the victims. He believes the system needs to be reviewed.

e Describe some reasons why you think the documents sought might be withheld (you might wish to undertake some further research about this case).

Student answers will vary. Sample answers are provided below:

• Due to the privacy rights of the offender, medical records should not be made public.

• Releasing the offender’s criminal history may disclose information about other individuals that are not relevant to the case.

• Information contained in the offender’s criminal history may be irrelevant to the legal action (e.g. a medical condition that is unrelated to the offence committed).


7 A breach of the Victims’ Charter does not entitle the victim to take civil action to enforce those rights. Do you think it should? Discuss with another person in your class.

Student responses will vary. Sample answers are provided below:

• The nature and degree of the breach should be considered.

• Civil action is taken when the rights of an individual are infringed. As legislation recognises the rights of victims, if these rights are breached, it follows that civil action should be able to be undertaken.

• Under the Charter, ‘victim’ is broadly defined and may result in inconsistencies or ambiguity regarding who can pursue civil action (for instance, a person may be classified as a ‘victim’ in one situation but not in another).

8 Discuss the extent to which Victoria’s laws protect potentially vulnerable witnesses when they give evidence. In your answer, consider whether there are any other types of witnesses who may be vulnerable, but do not have any of those rights available to them.


Victoria has laws in place to protect potentially vulnerable witnesses by allowing alternative arrangements when giving evidence in certain proceedings. These arrangements focus on making the witness comfortable when providing evidence, and minimising the contact between the witness and the accused. There are even greater protections for sexual and family violence offences, and witnesses under the age of 18 and those with a cognitive impairment. While these protections go a long way to protect witnesses of sexual and family violence offences, the ability to access these protections is limited to those under 18 or with a cognitive impairment for witnesses of other criminal offences. For example, witnesses to murder are not entitled to any protections (unless under 18 or cognitively impaired), but may feel fearful about facing the accused they are giving evidence against. In this way, the laws have focused on identifying vulnerable witnesses in certain offences, but not all.


Student book questionsChapter 3 ReviewPages 72–73

Revision questions1 Define the terms ‘burden of proof’ and ‘standard of proof’.

[2 marks]

Burden of proof refers to the party that needs to establish the facts in the case.

Standard of proof refers to the strength of evidence needed to prove a case.

2 Distinguish between an indictable offence and a summary offence.

[3 marks]

An indictable offence is a serious offence that is heard before a judge (and sometime a jury) in the Supreme or County Court.

A summary offence is a minor offence that is heard before a magistrate in the Magistrates’ Court.

Some indictable offences can be heard summarily in the Magistrates’ Court as if they were summary offences.

3 Describe two principles of justice.

[4 marks]

Fairness requires fair processes and a fair hearing. Parties should have the opportunity to know the case that is being put against them, and have the opportunity to present their case.

Equality as a principle of justice means that people should be treated equally before the law, and have the same opportunity to present their case as anyone else.

Access means that people should be able to understand their legal rights and pursue their legal claims in court.

4 Explain the circumstances in which a victim may be entitled to know about the release date of an imprisoned offender.

[4 marks]

If a person has committed a criminal act of violence, the victim may apply to be included on the Victims Register. If a person is registered on the Victims Register, they may be entitled to know about the release date of the imprisoned offender at least 14 days before the intended release.


5 Micah is the complainant in a criminal proceeding related to a charge for a sexual offence. He is nervous about giving evidence. Explain two possible protections that may be available to Micah when giving evidence.

[4 marks]

As a complainant in a sexual offence case, Micah will automatically be entitled to alternative arrangements to give evidence.

Student answers will vary but may include the following:

• giving evidence by way of closed-circuit television

• using screens in court to shield Micah from the accused

• allowing a support person to be beside Micah

• only allowing certain persons to be present when evidence is given

• removing formalities applicable to legal practitioners

• the court could also declare that Micah is a protected witness, and therefore the accused cannot cross-examine him.

6 To what extent is there a right to a trial by jury in Victoria? Justify your answer.

[5 marks]

In Victoria, there is a right to trial by jury for criminal indictable offences, which is enshrined in the Criminal Procedure Act 2009 (Vic). In the Act, a jury is required if an accused pleads guilty.

There is no right to a trial by jury for summary offences.

The Australian Constitution includes a right to a trial by jury for Commonwealth indictable offences, but this does not extend to state offences.

7 Give two reasons why an accused is entitled to certain rights in a criminal case. In your answer, provide one example of a right available to an accused.

[5 marks]

An accused is presumed innocent until proven guilty. This means that the accused cannot be treated as if they are guilty before the trial has concluded. To this end, an accused has the right to be tried without unreasonable delay so that an accused is not held for an unreasonable amount of time while they await trial.

The Victorian Charter of Human Rights and Responsibilities Act protects and promotes human rights. An accused is entitled to certain rights as they are protected by the Charter. One of these rights is the right to a fair hearing.

8 Identify one right available to an accused and one right available to a victim in a criminal proceeding. In your answer, explain how these rights uphold one or more of the principles of justice.


[6 marks]

Student answers will vary but may include the following responses.

Rights of an accused:

• The right to be tried without unreasonable delay ensures the principle of fairness. An accused is usually held while the prosecution prepares their case, and ensuring that this process is not delayed unreasonably means that the accused will have a greater opportunity to a fair hearing.

• The right to a fair hearing ensures the principles of fairness and access. A competent, independent and impartial court must decide the proceedings so that the accused has the opportunity to hear the case against them and respond accordingly. A public hearing ensures that the courts are adhering to fair processes and means the courts are transparent. This ensures the accused has access to the legal system.

• The right to trial by jury ensures the principles of fairness and equality. Being judged by a jury of your peers ensures that community standards are imposed. The jury has certain obligations and are part of a process that ensures a fair hearing by requiring 12 jurors to discuss their decision.

Rights of a victim:

• The right to give evidence as a vulnerable witness ensures the principle of fairness. It allows the accused the ability to know the case against them, but also protects the victim from further harm in giving evidence in sensitive cases.

• The right to be informed about the proceedings upholds the principle of access. This means that the victim has access to the legal system and is kept updated on the proceedings even though they are not a party to the case.

• The right to be informed of the likely release date of the accused upholds the principle of equality. This ensures that both the rights of the victim and accused are considered, and the victim is kept informed of developments that will affect them.


Practice assessment task questions1 Identify in the above case study the complainant, the prosecution, the accused and the

primary victim.

[2 marks]

In this case Judith is the complainant, who is the person against whom the offence is alleged to have been committed. She is also the primary victim, who has suffered directly as a result of the alleged crime.

The DPP is the prosecution and is responsible for preparing and conducting the case on behalf of the Crown.

Simon is the accused person who has been charged by Victoria Police.

2 Has Simon been charged with summary offences or indictable offences? Justify your answer.

[2 marks]

Simon has been charged with indictable offences (i.e. four counts of sexual assault) because sexual assault is a serious criminal offence heard before a judge and a jury (if the accused pleads not guilty) in the County Court or Supreme Court of Victoria. In contrast, summary offences are minor offences heard by a magistrate in the Magistrates’ Court.

In addition to Simon’s case being resolved in the County Court, the final hearing being referred to as a trial also indicates he has been charged with indictable offences.

3 Identify the party that has the burden of proof in this case, and the extent to which that party needs to prove the case.

[2 marks]

Given this is a criminal case, the prosecution holds the burden of proof because they are initiating the case on behalf of the victim and society. In this criminal case, the level or extent that the prosecution must prove the defendant’s (Simon’s) guilt (referred to as the standard of proof) is beyond reasonable doubt.

4 Simon believes he is entitled to a right to trial by jury because of the Australian Constitution. Is this true? Justify your answer.

[2 marks]

Simon does have the right to trial by jury; however, this right is guaranteed by Victorian statute law, not the Australian Constitution. Section 80 of the Australian Constitution only protects the right to trial by jury for an accused that is charged with a Commonwealth indictable offence. In this case, while Simon has been charged indictable offences (four counts of sexual assault), he has been charged under Victorian state law. This means Simon is guaranteed the right to trial by jury under the Victorian Criminal Procedure Act 2009, which requires a jury to be empanelled where the accused had pleaded not guilty to an indictable


offence. If a jury trial is required (i.e. Simon pleads not guilty), the Juries Act 2000 (Vic) will govern the composition and responsibilities of the jury.

5 Will Andrew be able to give his evidence by way of a recording? Give reasons for your answer.

[3 marks]

Generally, witnesses are required to verbally give their evidence in the courtroom during a trial. However, the Criminal Procedure Act 2009 (Vic) does allow for the use of alternative arrangements to protect witnesses in certain cases, including sexual offence cases. This means that if the court declares Andrew to be a protected witness, he may be allowed to give his evidence from a place other than the courtroom by means of closed-circuit television (or other similar facilities).

Likewise, if Andrew is aged under 18 or has a cognitive impairment, special arrangements may also be made, such as allowing him to give evidence by way of closed-circuit television rather than being in the actual courtroom. If Andrew is required in the courtroom, the judge may allow other special arrangements, such as the use of screens, allowing a support person to be beside Andrew, and only certain persons to be present when Andrew gives his evidence.

6 Simon wants a quick trial which is closed to the public. Explain the extent to which he will be entitled to both those rights under the Human Rights Charter.

[4 marks]

The Human Rights Charter states that a person charged with a criminal offence is entitled without discrimination to a guarantee that he or she will be tried without unreasonable delay (Section 21(5)) and to have the charge decided by a competent, independent and impartial court after a fair and public hearing. This means that, rather than having a ‘quick trial’, Simon has the right to have his charges heard in a timely manner. A timely manner recognises that there may be a delay in the case, but that delay must not be unreasonable. The reasonableness of any delay will depend on factors such as the complexity of the case and the legal issues involved.

With regard to having a trial closed to the public, the Human Rights Charter (Section 21 (1)) states that a person charged with a criminal offence has the right to have the charge decided by a competent, independent and impartial court after a fair and public hearing. This means a hearing must be fair and public. However, the Charter (Section 21 (2)) does allow, in some circumstances, for a court to exclude members of media organisations or the general public from all or part of a hearing if permitted by a law other than the Charter. This exemption might include allowing a closed court in sexual assault cases (such as this case), but is more likely in cases where an open court would cause undue distress or embarrassment to the victim rather than the accused.

7 Explain whether there are rights available to Sally and Judith to give evidence in a way that alleviates their concerns.

[4 marks]

As this is a sexual offence case, the court may offer Judith and Sally alternative arrangements regarding the way they can give evidence during the trial. Indeed, as the complainant, Judith will be given various alternative arrangements automatically unless she does not want them. For example, Judith may be able to give her evidence from a place other than the courtroom by means of closed-circuit television (or other similar facilities) or


have screens used so that she does not have to see Simon while she is giving her evidence. Likewise, in an effort to make Judith and Sally feel more comfortable and less nervous, they may also be allowed to have a support person with them while giving evidence, and the legal practitioners may be asked not to wear formal robes. Similarly, only certain persons may be allowed in court when they are giving their evidence.

Under the Criminal Procedure Act 2009 (Vic), the court may also declare both Judith (as the principle victim) and Sally (as a family member of the complainant) to be protected witnesses so that they cannot be cross-examined by Simon (although they can still be cross-examined by his legal representative). This should help ensure that Judith and Sally do not have any direct communication with Simon in court. In accordance with the Evidence Act 2008 (Vic), the court can also disallow any questions deemed to be improper – that is, questions ruled to be confusing, harassing, intimidating, offensive or humiliating.

8 Discuss the extent to which you believe that justice has so far been achieved in this case, having regard to the access that Judith and Simon have to the criminal justice system.

[6 marks]

A sample response is provided below. This question requires students to discuss the extent to which they believe that justice has so far been achieved in the case with specific regard to the ability of Judith and Simon to access the criminal justice system. This requires students to examine the extent to which Judith and Simon have been able to make use of the processes and institutions within the criminal justice and some problems associated with their ability to use these processes and institutions. Students should provide sufficient depth to earn 6 marks. This could include examining the extent to which the following may affect Judith and/or Simon’s ability to access the criminal justice system:

• an individual’s awareness and understanding of legal rights and criminal processes and procedures (which can be influenced by cultural, socio-economic and demographic factors)

• costs associated with defending a criminal case and the ability of parties to access legal aid and assistance

• delays associated with availability of the courts, legal processes and court formalities.

For this case to achieve justice for Judith (the victim) and Simon (the accused), they both need to have affective access to the criminal justice system, meaning they both should understand their legal rights and be able to approach and use different bodies and institutions that provide legal advice, education, information and assistance and should receive from them information about the case and its processes and outcomes.

While Judith (and the other witnesses) was provided with significant information about the trial, including the date and time, and found staff members at the OPP to be very helpful, her access to the legal system was limited by her lack of understanding of her legal rights and criminal processes and procedures. She was confused about much of the legal terminology, and was not able to afford legal representation to help her understand the criminal process. It appears she was also not even aware that she might have been able to gain some free legal aid or assistance from bodies such as Victoria Legal Aid. Judith also lived in a rural area, where such services may have been limited.

In contrast, Simon appeared to have greater access to the criminal justice system as it appears he was able to afford high-quality legal representation and was more aware of his


rights, including his right to have a fair trial. However, while Simon was well represented during his case, he was funding his own costly legal representation and had already been confronted by delays that may have added to the cost and stresses associated with his trial and hindered his access to the criminal justice system.

Total: 25 marks


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