The Principles of Justice (VCE SSCE Legal Studies): Revision Notes

The principles of justice

Introduction

The criminal justice system operates according to three fundamental principles of justice. These principles help determine whether justice has been achieved in a particular case. If an objective and reasonable person believes that all three principles have been substantially achieved, then justice has likely been attained.

The three principles are:

• Fairness
• Equality
• Access

Fairness

Fairness means that all people can participate in the justice system and its processes should be impartial and open.

Fairness ensures that processes are conducted properly and without bias. Even notorious or allegedly 'evil' offenders must be given the opportunity to defend themselves and present their version of events. The right to a fair trial is a fundamental right in Australia, though this is not guaranteed in all countries.

Fairness has three main features: impartial processes, open processes, and the ability to participate.

Impartial processes

All personnel involved in the criminal justice system must be independent and impartial. This includes:

• Judges and magistrates
• Jury members
• Court personnel
• Police officers
• Others with power to enforce criminal law

Cases must be decided based on facts and law, not opinion and prejudice. Decision-makers should not be biased towards or against any party.

Open processes

Cases must generally be heard and decided in public so the community and media can see justice being done. This allows:

• Media reporting on case outcomes
• Public access to final judgments
• Online availability of sentencing judgments
• Maintenance of public confidence in the justice system

The Open Courts Act 2013 (Vic) recognises and promotes open processes as fundamental to the legal system. Open processes strengthen public confidence and maintain court integrity.

However, there are exceptions where courts may be closed:

• Sexual offence cases where courtrooms are closed to protect witnesses
• Cases with suppression orders preventing media publication of certain information
• Minor Magistrates' Court cases where written judgments are not published

Participation

People must be able to participate in the criminal justice system. This traditionally applies to parties in a case (the accused and prosecution), but can extend to victims in limited ways.

Ways participation is achieved for the accused and prosecution:

Knowing the case against them – Parties, particularly the accused, should know the case put against them well before trial. The prosecution and accused should disclose evidence (information and documents used to prove facts) they intend to rely on. This is especially important for the prosecution because the accused is presumed innocent and the prosecution bears the burden of proof.

Opportunity to prepare a defence – The accused must have adequate time and facilities to prepare a defence and present it in court. This includes calling witnesses if desired. However, accused persons have no burden of proof unless relying on a particular defence.

Opportunity to examine witnesses – Both parties should be able to examine witnesses, including:

• Examination-in-chief (questioning own witnesses)
• Cross-examination (questioning the other party's witnesses)
• Re-examination (clarifying answers after cross-examination)

Use of a lawyer – The accused can engage a lawyer of their choice. If they cannot afford one, they may seek free legal advice or representation through Victoria Legal Aid (VLA) – a government agency providing free legal advice and low-cost or no-cost representation. The High Court has held that lack of legal representation for serious indictable offences could result in an unfair trial. Victoria now allows courts to stay (stop) proceedings until the accused obtains free representation if there is a risk of unfairness.

Use of an interpreter – Accused persons who cannot understand or speak English should have free access to an interpreter so they can fully participate.

Trial without unreasonable delay – Criminal cases should be held without unreasonable delay. Courts have experienced backlogs, including delays from COVID-19 pandemic measures.

Ways participation is achieved for victims:

Although victims are not parties to the case, fairness requires they can participate in certain ways:

Allowing victims to attend court and be informed – The Victims' Charter Act 2006 (Vic) sets out principles for how the criminal justice system should treat victims. Investigatory and prosecution agencies (such as police) must provide victims with information about case progress and hearing dates, allowing them to attend and stay informed.

Allowing some victims to give evidence differently – Courts recognise some victims are vulnerable and at risk of trauma, particularly in family violence or sexual assault cases. Courts may order alternative arrangements such as:

• Having a support person present
• Giving evidence by video link

Use of victim impact statements – When sentencing an offender, victims can submit a victim impact statement to the court. This statement contains particulars of injury, loss or damage suffered as a result of the offence, allowing victims to express the impact in their own terms.

Opportunity to give views – Victims may give their views to the prosecution about matters such as plea negotiations (pre-trial discussions between prosecution and accused aimed at reaching agreement, also called charge negotiations). While victims' views may not be determinative, it provides an important voice.

Equality

Equality means that all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.

While fairness concerns processes, equality concerns how people are treated. Equality can be achieved either by treating people the same or, if that results in disadvantage, by treating people differently.

Same treatment (formal equality)

Traditionally, equality meant treating people the same regardless of their attributes or characteristics. This is called 'formal equality' – everyone receives the same opportunities, treatment and support regardless of race, religion, gender identity, or age.

However, formal equality can sometimes result in disadvantage. For example:

• If a young child accused of a crime received no adjustments, they would use the same language as adults, be handcuffed, sit in the dock without support, and receive no flexibility. This adult-oriented environment would disadvantage the child significantly.
• An accused person with learning difficulties treated exactly the same as an experienced prosecutor would face clear disadvantage.

Different treatment (substantive equality)

When treating people the same would cause disparity or disadvantage, special measures should be implemented. This is called 'substantive equality' – recognising that 'one size fits all' doesn't work and special adjustments may be needed so people don't suffer disadvantage simply because of who they are.

Courts now widely recognise that processes may need adjustment. Failure to make appropriate adjustments can give rise to an appeal (application to have a higher court review a decision).

Types of adjustments and measures:

Interpreters – Accused persons who cannot understand or communicate in English (including recently arrived migrants and some First Nations people) may need interpreters to help them participate and understand proceedings.

Providing information differently – Information may need to be communicated in different ways:

• Available in languages other than English
• Simplified language (slower speech, less legal terminology)
• Shortened or simplified sentences

This applies to people with intellectual disabilities, young people, those without sufficient English understanding, and trauma-affected victims.

Changes to court processes – Adjustments may include:

• Using smaller courtrooms for young people
• More breaks or adjournments for people with mental health issues or who are pregnant
• Modified physical layouts

Different form of oath – People who don't practice Christianity may require different oaths (solemn declarations of truth based on religious or spiritual belief, or affirmations without religious belief). Appropriate holy books should be available.

Changes for cultural differences – Adjustments for cultural reasons may include:

• Changes to physical layouts
• Cultural training for court personnel
• Allowing First Nations people to explain events through storytelling rather than direct questioning
• Recognising that some find examination confronting

Flexibility – Flexibility may be required for certain people:

• Self-represented accused persons not expected to know how to cross-examine witnesses
• Accepting incorrectly filled forms from those without legal knowledge
• Judges or magistrates adjusting processes to acknowledge difficulties faced

Access

Access means that all people should be able to engage with the justice system and its processes on an informed basis.

Access extends beyond the accused to all parties, including victims. It requires people to obtain the information they need for criminal cases. For the accused, this includes information about legal rights and processes. For victims, it includes information about their rights, available protections and compensation, and how the justice system works.

Access has two components: engagement and informed basis.

Engagement

Engagement means not only actively or physically engaging, but also being able to use and participate in the justice system. If people cannot use or participate, they cannot 'access' it.

Physical access – People should be able to physically attend courts, appropriate services and lawyers' offices. This may be difficult for people in rural or remote areas or people with disabilities. People in rural or remote areas are physically distant from courts and legal service providers like VLA, which may prohibit or make it more difficult to engage.

Technological access – If virtual or online methods are used for services or court hearings, people should be able to use them. Some people may:

• Lack access to technology or internet
• Have learning disabilities or special needs preventing use
• Be in jail and accused of further crimes, creating additional disadvantage

Informed basis

People should engage with the justice system on an 'informed' basis. Physical attendance at court or website access doesn't mean people can actually access the justice system. They also need information and understanding about the system, processes and their rights to engage and make decisions (such as whether to plead guilty, call witnesses, or negotiate with prosecution).

Many people are disadvantaged because personal characteristics mean they lack sufficient information to fully engage. This includes people with low literacy, intellectual disabilities, young people, and those who don't understand English.

Ways the criminal justice system enables people to be informed:

Education – People with higher education levels or particular knowledge of the criminal justice system may be better informed. However, education doesn't necessarily mean formal education. Legal services bodies such as community legal centres (CLCs) – independent community organisations providing free legal services – run educational programs to improve community understanding.

Information – People should have access to information about their rights, legal principles and processes through fact sheets, brochures, handbooks and websites. Courts, VLA and CLCs all provide information online and in person.

Legal and support services – Free access to legal and support services helps people be more informed about their rights, legal principles and processes. Services may be available for both accused persons and victims.

Legal representation – Being represented by a lawyer is an effective way to be informed. Lawyers can navigate the justice system and explain what is happening and recommend actions. However, a major issue with the Australian justice system is that while it is designed so people need lawyers, lawyers are too expensive for a large proportion of the community.

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