Legal Groundup

Legal Studies from the ground up

Application Excercise 4b





Fairness is achieved in our criminal justice system in a few different ways, such as:

• courts aim to resolve criminal cases fairly by having legal processes in place in order to ensure justice is achieved.
• strict rules of evidence and procedure that apply fairly to both sides so that a fair hearing or trial occurs during the
determination of the criminal case and imposing a fair sanction during sentencing if the accused is found guilty or
pleaded guilty.
• having an independent, impartial and unbiased judge who
presides over the case by overseeing court proceedings ensures
a fair trial occurs. The judge decides a fair sancton once the
jury has delivered their verdict or guilty or not guilty. According
to the Universal Declaraton of Human Rights (1948) one of the
basic human rights of all human beings that is protected is that
‘everyone is enttled to a fair trial or hearing by an independent
and impartal judge’.

• having an independent, impartial and unbiased jury who listens
to the facts of the case and evidence presented in court and then
decides a fair verdict of guilty or not guilty contributes to achieving
a fair trial.
• the right for either the accused or prosecution to appeal a decision so that a mistake in fact, law or sentence made
by a lower court can be reviewed by expert judges in a higher court, thereby addressing the unfairness which arises
from errors..
• committal hearings take place in the Magistrates’ Court for indictable offences to determine whether there is a
prima facie case, meaning sufficient evidence, to proceed to trial and gain a conviction in a higher court, either the County Court or Supreme Court depending on the crime committed. Committal hearings ensure a fair trial in a
higher court occurs since the accused is provided with knowledge about the case that the prosecution has against
him or her.
• an accused person has the right to remain silent in a criminal case, which provides for fairness as they do not have
to answer any questions or give evidence that may incriminate themselves.

• anyone accused of committing a crime and who finds themselves in court in our criminal justice system is presumed innocent until proven guilty beyond reasonable doubt by the court. This is the criminal standard of proof. This
allows for fairness because until the accused has their day in court they are presumed innocent until proven guilty. The fact that the prosecution in a criminal case is required to meet the strict standard of proof by presenting a case with strong evidence also provides for fairness, because the burden is not on the accused, who may have limited
resources, to prove their innocence.

Equality is achieved in our criminal justice system in various ways, such as:

• all parties involved in a criminal case have an equal opportunity to present the facts and evidence in their case
with the same laws applied for consistency and fairness. Also, the criminal justice system attempts to ensure all parties involved in a criminal case are treated equally before the law, particularly when their case comes before
a court.
• Witnesses and other individuals involved in a criminal case must give evidence under oath or affirmation. This
ensures equality as anyone who gives evidence in court is treated the same way by being required to tell the truth
under oath.

• Some individuals involved in a criminal case may need the assistance of an interpreter if they do not speak English
or understand it well, and if they are unfamiliar with court procedures. Having an interpreter helps to ensure equality, as it allows a person involved in a case to feel they are being treated equally under the law.
• Legislation relating to ant-discrimination and equal opportunity aim to protect the rights of all Australians so that all people are treated equally.

Access is achieved in our criminal justice system in various ways, such as:

• the availability of Legal Aid for individuals who cannot afford their own legal representation allows parties to
access the legal system by obtaining legal advice and legal representation.
• the existence of different courts in the court hierarchy that
specialise in particular criminal cases within their jurisdiction
based on the seriousness of the case/ offence committed.
Less serious/ minor criminal offences (known as summary
offences) are heard in the Magistrates’ Court, while the
more serious offences (known as indictable offences) are
heard in a higher court, either the County Court or the Supreme Court depending on the crime committed. This assists people in accessing the correct and most appropriate court to hear and determine their criminal case with an appropriate sanction imposed during sentencing.
• having specialist courts that allow users the opportunity to
access the correct court that specialises in the type of law
that their criminal case relates to. For example, the Koori
Court provides access by Indigenous people who have pleaded guilty to committing an offence, the Children’s Court of Victoria provides access for children and young people under 18 years of age, and the Drug Court provides access by drug offenders.
• having the right to appeal, which provides the accused or the prosecution access to a higher court to review the decision made by a lower court in their case if the accused or prosecution considers there was a mistake of fact, law or sanction.