ELEMENTS TO AN EFFECTIVE LEGAL
SYSTEM
FAIR AND UNBIASED HEARING
6.2 - The jury system and court processes and procedures aim to
achieve a fair and unbiased hearing
 In addition to the adoption of the adversary system of trial, the Victorian
legal system contains many other processes and procedures, at both the
pre-trial and trial stages of a dispute, that aim to ensure individuals receive a
fair and unbiased hearing, including the:
 existence of the right to silence and the right to bail in a criminal trial
 use of the jury system
 provision of an appeals process
 existence of processes and procedures to ensure fair and consistent
sentencing
 provision of an open court system.
RIGHT TO SILENCE - FOR
 The right to silence refers to the right of an accused to remain
silent and not be compelled to give evidence during criminal
proceedings,
 aims to ensure defendants receive a fair hearing in criminal cases.
 accused can choose to remain silent throughout the entire criminal process; for
example, an accused does not have to answer questions from police during the pretrial process (other than giving his or her name and address in most circumstances)
 cannot be forced to give evidence and be subjected to cross-examination during his
or her trial. If an accused does remain silent during his or her trial, the judge must
inform the jury (when present) not to interpret this silence as an indication of guilt.
 The existence of the right to silence upholds the individual's right to a presumption
of innocence and aims to ensure a fair hearing by removing the likelihood of an
accused giving self-incriminating evidence.
RIGHT TO SILENCE - AGAINST
 Those who oppose defendants having the right to silence argue
 that it can hinder police investigations because suspects may refuse to answer questions.
 Can be used by defence lawyers as a tactic so their clients can avoid cross-examination.
Yet a basic premise of our criminal justice system is that the prosecution holds the
burden or responsibility of presenting sufficient evidence to prove the guilt of the
accused. The accused is not required to give evidence to potentially assist the
prosecution's case.
 There may be genuine reasons why some defendants may not wish to be cross-examined
during their trial, including a fear that their evidence may lack credibility due to anxiety
and nervousness and an inability to understand questions posed by the prosecution.
 Defendants from culturally and linguistically diverse (CALD) communities (including
immigrants and refugees) and indigenous defendants also often suffer language barriers
that can contribute to a lack of awareness and understanding of our legal processes and
procedures, and detract from their ability to communicate effectively in court.
 Read
the article “Should the right to silence be removed? “
RIGHT TO BAIL
 Individuals who have been charged with an indictable criminal offence have the legal
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right to apply to be granted bail; that is, to be released from police custody until their
next court date (such as their committal hearing or trial).
This release may be granted with or without conditions (such as reporting to the
police or surrendering a passport). It may also be granted with other requirements
(such as the provision of a surety or a deposit of money which is forfeited if the
accused fails to appear in court). These conditions and/or monetary requirements
are set to encourage the accused to turn up to court at a later specified date. If
granted bail the accused signs a written promise (undertaking) to appear in court.
To uphold the presumption of innocence and treat an accused as innocent until
proven guilty at a trial, an accused will be granted bail unless the court has
reasonable grounds for its denial.
Being granted bail allows the accused to remain in society with their family and
friends, and to prepare their defence.
When determining whether or not to grant or deny bail the court will consider a
range of factors, including the type and amount of crimes with which the accused is
charged and the likelihood of the accused failing to attend court, committing further
offences while on bail, interfering with witnesses, or endangering the safety and
welfare of members of the public. An accused who is denied bail is held or remanded
in custody.
TRIAL BY JURY - STRENGTHS
 The right of an individual to a trial by jury is another way our legal system aims to
provide individuals with a fair and unbiased hearing. The use of a jury (a group of
independent and impartial people who represent a cross-section of the community)
to determine the verdict in a trial provides the opportunity for trial by peers and
allows the views and values of the community to be reflected in the application of
the law and determination of a verdict.
 In the Victorian legal system, a jury of 12 independent and impartial people, rather
than a single judge, determines the verdict, in all indictable (serious) criminal trials.
Generally, a jury must reach a unanimous verdict, meaning all jurors must agree to a
guilty or not guilty verdict (after six hours a majority verdict may be accepted,
however, other than in serious cases including murder, trafficking large quantities of
drugs and various Commonwealth offences). Having 12 jurors who reflect a crosssection of society determine a unanimous verdict, rather than one judge, can
increase the likelihood of a correct verdict.
 In Victoria, parties in a civil trial also have the option of requesting a jury of six to
determine the verdict (and level of damages if appropriate) in all civil cases heard in
the county or supreme courts.
TRIAL BY JURY - WEAKNESSES
 the jury may not reflect a true cross-section of the community because
certain groups of people are not able to serve on a jury (including those
who are ineligible, such as judges, lawyers and people with inadequate
English skills).
 Legal representatives may challenge potential jurors, influencing the
composition of the jury.
 Has been argued juries may impede the achievement of an unbiased hearing
if members of the jury are influenced by their own personal prejudices or
opinions expressed in the media.
 Juries contribute to a lack of transparency in the legal system because
jurors are not required to give reasons for their verdict and their
deliberations are made in private.
RIGHT TO APPEAL
 The existence of a system of appeals is a key feature of our legal system
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that helps ensure parties receive a fair and unbiased hearing.
Within the Victorian court system, parties may have the opportunity to
lodge an appeal or have their case reviewed by a superior court. For
example, a defendant has a right to appeal against the verdict and the
sentence (or remedy) imposed by the court, provided reasonable grounds
for the appeal exist.
Both parties may appeal if they believe the judge or magistrate has made an
error in law that has led to an unfair trial.
In a criminal case the prosecution may also appeal against the leniency of a
sentence.
The right to appeal is vital in ensuring our legal system offers parties a fair
hearing, due to complex processes and court delays it can take many years
for parties to exhaust all avenues of appeal, during which time parties can
suffer great hardship. For example, defendants who are held on remand are
denied their freedom while awaiting appeal and plaintiffs may suffer financial
hardship while awaiting damages.
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.
 In Australia, state legislation prescribes maximum sentences for crimes
and the judge (or magistrate) has the responsibility of determining the
sentence to be imposed after considering the purposes of a sanction
and various other factors, including the severity of the crime, the degree
or lack of remorse on behalf of the offender, a guilty plea and the
offender's previous convictions.
 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.
RIGHT TO AN OPEN HEARING
 Generally, all criminal and civil trials are open to the public and the
media to ensure our court system is transparent and accountable. There
are, however, some circumstances where the safety of witnesses or the
public may be at risk, or the distress of a witness would be too great to
have the court open to the public. In these cases a closed hearing will
take place.