U3AOS1 Topic 9: The roles of key personnel

Key Knowledge Dot Point:

The roles of key personnel in a criminal case, including the judge or magistrate, the jury, and the parties.

Preface:

This is one of the most content-heavy dot points in this area of study, so it requires close attention. It is a particularly important topic for two key reasons. First, it falls under the skill of evaluating the ability of the criminal justice system to achieve the principles of justice during a criminal case. This means your understanding must be thorough and detailed so that you can effectively respond to evaluate or discuss questions that assess how key personnel uphold—or fail to uphold—the principles of justice. Second, as stated in the study design, students are required to analyse the roles of key personnel in a criminal case. As a result, you may be asked to analyse the role of the jury, the parties, or the judge. This task word requires a strong and precise understanding of both what each role involves and how it operates in practice. The importance of this skill was reinforced in 2024, when an analysis-style question appeared on the exam.

The jury:

A jury is a group of randomly selected individuals drawn from the electoral roll who are responsible for delivering a verdict in a trial based on the evidence presented in court. In criminal trials, a jury is composed of 12 jurors and is intended to represent a cross-section of the community.

The role of a jury in a criminal case:

Directions — a role of a criminal jury is to listen to and understand the directions given by the trial judge. Members of the jury need to ensure that they understand the directions and summing up, and must ask for an explanation about any legal point they do not understand.
Deliver a verdict — the jury’s role includes deliberating to determine whether the accused is guilty beyond reasonable doubt, based solely on evidence and arguments presented in court. A jury is required to reach a unanimous verdict. If the jurors are unable to agree unanimously after sufficient deliberation, the court may accept a majority verdict, except in cases involving murder, treason, or certain serious drug offences, where unanimity is required.
Listen to and remember evidence — evidence presented during a criminal trial can be complex, particularly in cases involving fraud or drug offences, and is often introduced gradually through questions and answers This role requires understanding of legal arguments and the tracking of evidence, which can be challenging when a trial involves complex or technical terminology. Jurors are permitted to take notes to help them make sense of the evidence, especially where conflicting evidence may have been presented.

The jury and its ability to uphold the principles of justice: fairness, equality and access:

How a jury upholds fairness:

Trial by jury promotes fairness by ensuring that an accused person is judged by a group of their peers, rather than solely by a legal professional. Because jurors are drawn from a cross-section of the community, jury verdicts are more likely to reflect community values and standards, which supports democratic participation in the justice system. This helps ensure that verdicts are not detached from societal expectations and that justice is seen to be done.
Jurors are strictly prohibited from seeking information about a case outside the courtroom and must base their decision solely on the evidence and facts presented during the trial. Judges also direct jurors to disregard any external knowledge, media coverage, or personal opinions that may be irrelevant or prejudicial. This ensures that verdicts are reached on admissible, tested evidence rather than speculation or bias, promoting impartial decision-making and supporting fair outcomes in criminal trials.

How a jury does not uphold fairness:

Criminal trials often involve complex legal rules, technical terminology, and detailed evidence, which may be difficult for ordinary jurors to fully understand. This creates a risk that verdicts are reached without a complete or accurate understanding of the facts or legal issues. Furthermore, juries are not required to provide reasons for their verdicts, meaning there is no way to confirm whether the evidence has been properly interpreted or applied. As a result, this lack of transparency may undermine fairness by increasing the risk of an unjust outcome for both the accused and the victim(s).
Juries are used in only a small proportion of criminal cases, as the majority of matters are resolved through summary proceedings or plea negotiations. As a result, the ability of juries to promote fairness is limited to relatively few cases, restricting their overall impact on the fairness of the criminal justice system as a whole.
Although jurors are instructed to remain impartial, they receive limited training on how to identify and manage personal bias. As a result, jurors may subconsciously rely on prejudice, stereotypes, or preconceived beliefs when assessing evidence and credibility. This risk of unconscious bias can undermine impartial decision-making and reduce the fairness of the trial for both the accused and the victim(s).

How a jury upholds equality:

All accused persons charged with indictable offences are entitled to a trial by jury, regardless of their wealth, race, education, or social status. This universal entitlement ensures that accused persons are treated equally before the law and that access to a jury trial is not influenced by personal characteristics, thereby promoting equality within the criminal justice system.
Juries are drawn from a cross-section of the community, meaning decisions are made collectively by individuals who are independent equals of the accused. This helps ensure that the accused is not judged by a single authority figure but by a diverse group of peers. By dispersing decision-making across multiple jurors, the jury system reduces the influence of individual bias or prejudice, promoting equality before the law and increasing confidence that the verdict reflects a balanced and impartial assessment of the case.

How a jury does not uphold equality:

Certain individuals are ineligible or disqualified from serving on a jury, meaning that juries may not always represent a true cross-section of the community. As a result, some accused persons may perceive that they are not being judged by their peers in an equal or representative manner. This can undermine equality before the law by creating the perception that the decision-making body does not fully reflect the diversity of the community from which the accused comes.
Jury trials are not available for summary offences, meaning that access to a jury trial depends on the type and seriousness of the offence charged. As a result, accused persons charged with less serious offences do not have the same opportunity to be tried by a jury as those charged with indictable offences, limiting equality in access to this aspect of the criminal justice process.

How a jury upholds access:

The presence of a jury encourages the use of plain English and limits excessive legal jargon during a trial so that jurors can clearly understand the evidence, procedures, and their role in reaching a verdict. This clarity also benefits the accused, particularly if they are self-represented, by making the trial process and legal issues more understandable. As a result, the accused is better able to follow and participate in proceedings, thereby promoting access to justice.

How a jury does not uphold access:

Only a small proportion of criminal matters are heard by a jury, as the majority of offences are summary offences determined in the Magistrates’ Court. Consequently, relatively few accused persons are able to access a jury trial, limiting the extent to which juries can promote access to justice across the criminal justice system as a whole.
The use of juries can contribute to delays in criminal proceedings. Time is required to empanel a jury, explain evidence and legal terminology, and allow for jury deliberations. In cases where a jury is unable to reach a verdict (a hung jury) or where a mistrial occurs due to juror misconduct, a retrial may be necessary, further prolonging the process. These delays can restrict timely access to justice for the parties involved and contribute to court backlogs, negatively affecting access to justice for all individuals engaging with the criminal justice system.

The parties in a criminal case:

The parties in a criminal case include the prosecution, which acts on behalf of the Commonwealth or a state to bring a criminal case before the court, and the accused, who is the individual alleged by the prosecution to have committed a criminal offence.

The role of the prosecution in a criminal case:

Disclose information to the accused — The prosecution is required to provide the accused with access to all material that is relevant to the case. This includes infotming the accused of the evidence the prosecution intends to rely upon, such as witness identities and their statements. The duty of disclosure also covers any relevant criminal history of prosecution witnesses, which may be used by the defence to test the reliability of their evidence through cross-examination and assess whether the witness is credible.
Make submissions in relation to sentencing — Where an accused pleads guilty or is found guilty, the matter proceeds to a plea hearing, during which both parties may make submissions to assist the court in determining an appropriate sentence. The prosecutor’s role is to inform the court of the relevant law and to outline any factors relating to the offence or the offender that are relevant to sentencing. Importantly, the prosecutor’s duty is not to seek the harshest penalty, but to assist the court in arriving at a just and lawful sentence. The High Court has held that prosecutors should not submit a specific sentencing range, as this may improperly influence the court’s discretion in determining the appropriate sanction.

The role of the accused in a criminal case:

Enter into a plea of ‘guilty’ or ‘not guilty’ — An accused person must enter a plea of either guilty or not guilty to the charge(s) against them. If the accused pleads guilty, the matter will proceed to a sentencing hearing. At this stage, the prosecutor outlines a summary of the alleged facts and, where relevant, the accused’s prior convictions. The accused is then given an opportunity to address the court, including disputing any facts presented by the prosecution or making submissions in mitigation. The judge or magistrate will then determine and impose an appropriate sentence. If the accused pleads not guilty, the matter will proceed to a trial, where the prosecution must prove the accused’s guilt beyond reasonable doubt.
Participate in the trial or hearing — The accused may choose to participate fully in the trial or hearing, or they are entitled to remain silent and take no active part in the proceedings. If the accused elects to present a defence, their role (or that of their legal practitioners) may include delivering an opening address, in which the defence outlines the nature of its case. Similar to the prosecution, this address summarises the evidence to be relied upon and must not refer to material that is irrelevant or will not be called as evidence. In the Magistrates’ Court, the accused must be granted leave of the court to deliver an opening or closing address. The accused may also present evidence in support of their case, typically by calling witnesses, and may choose to give evidence themselves at any stage of the proceedings.

The parties and their ability to uphold the principles of justice: fairness, equality and access:

How the parties in a criminal case uphold fairness:

Both the prosecution and the accused are afforded an equal opportunity to present their case before the court. This ensures that evidence and arguments from both sides are heard and considered by an impartial decision-maker, promoting balanced and unbiased processes. By allowing each party to present and challenge evidence in accordance with established procedures, the criminal justice system upholds fairness and reduces the risk of one-sided or unjust outcomes.
The accused is not required to present evidence or prove their innocence. Instead, the burden of proof rests with the prosecution, which must establish the accused’s guilt beyond reasonable doubt. This protects the accused from being compelled to incriminate themselves and ensures that convictions are only secured where the prosecution has met a high evidentiary standard, thereby upholding fairness in criminal proceedings.

How the parties in a criminal case do not uphold fairness:

Self-represented parties may struggle to understand how to effectively present legal arguments and evidence in accordance with court rules and procedures. As a result, relevant evidence may be presented poorly or overlooked, and legal arguments may not be articulated persuasively. This can place the self-represented party at a disadvantage and increase the risk of an incorrect or unfair outcome, undermining fairness in criminal proceedings.
Although an accused has the right to remain silent, choosing not to present evidence or respond to allegations may be perceived by jurors or observers as an implied admission of guilt. Despite judicial directions that silence must not be taken as evidence of guilt, this perception can influence how the accused is viewed and increase the risk of an unfair outcome in the trial.

How the parties in a criminal case uphold equality:

Both the prosecution and the accused are provided with the same opportunity to present their case before the court. Each party may call witnesses, present evidence, and make submissions in accordance with the same procedural rules. This ensures that neither party is advantaged or disadvantaged by the process itself, promoting equality before the law within the criminal justice system.

How the parties in a criminal case do not uphold equality:

Self-represented parties may be placed at a disadvantage if they do not understand court processes or are unable to identify and present all relevant evidence in accordance with legal requirements. This can create an imbalance between the prosecution, which is professionally represented, and the accused, undermining equality before the law by allowing differences in legal knowledge and expertise to influence the outcome of the case rather than the merits of the evidence.

How the parties in a criminal case uphold access:

Courts provide limited general guidance on court procedures to self-represented parties, helping them understand how proceedings are conducted and what is expected of them. While judicial officers cannot provide legal advice, this procedural assistance supports self-represented individuals in navigating the court process, thereby promoting access to justice by reducing barriers caused by a lack of legal knowledge.

How the parties in a criminal case do not uphold access:

Self-represented parties may struggle to understand how to properly formulate legal arguments or present evidence in accordance with court rules and procedures. This can limit their ability to participate effectively in proceedings and reduce access to justice by disadvantaging individuals who lack legal knowledge or experience.
An accused person may choose to plead guilty because they do not fully understand their legal rights or feel incapable of presenting their case effectively. This decision may be driven by confusion or lack of legal knowledge rather than genuine acceptance of guilt. As a result, the accused may be denied the opportunity to properly test the prosecution’s case, reducing access to justice and increasing the risk of an unjust outcome.

The judge or magistrate in a criminal case:

The judge or magistrate is the umpire of the courtroom, responsible for overseeing all parties and court proceedings, and for ensuring that court rules and procedures are properly applied and upheld.

The roles of the judge/magistrate in a criminal case:

Act impartially — Judges and magistrates are required to act without bias and must also avoid any apprehension of bias, meaning there must be no reasonable belief that they may be prejudiced for any reason. They are required to remain independent and impartial throughout the entire court process to ensure confidence in the fairness of proceedings.
Manage the trial or hearing — Judges and magistrates are responsible for ensuring that trials and hearings are conducted efficiently and that court time and resources are used effectively. This includes exercising their powers to control the presentation of evidence, such as determining whether evidence should be given orally or in written form. Judges or magistrates can enhance the efficiency of proceedings by ensuring correct procedures are followed, actively managing and adjusting the conduct of a trial where necessary, limiting the number of witnesses called, restricting the scope of questioning, and setting reasonable time limits on examination-in-chief and cross-examination. Through these case management powers, judges and magistrates reduce unnecessary delays and help ensure proceedings progress in a timely and orderly manner.
Direct the jury ( judges only) — The Jury Directions Act 2015 (Vic) governs the directions that a judge must give to a jury during a criminal trial. It specifies the key points of law that must be explained to ensure the accused receives a fair trial. For example, in most criminal cases, the judge is required to explain the burden of proof, the standard of proof, the key elements of the relevant offence(s), how the law applies to the facts of the case, and how the jury should consider the evidence presented by both parties.
Sentence an offender — If an accused pleads guilty or is found guilty, the matter will proceed to a plea hearing, during which the parties make submissions in relation to sentencing. After considering these submissions, the judge or magistrate will impose a sentence. This may occur on the same day as the plea hearing or be adjourned to a later date. In determining the sentence, the judge or magistrate must comply with the Sentencing Act 1991 (Vic) and any other relevant legislative guidelines governing sentencing.

The judge/magistrate and their ability to uphold the principles of justice: fairness, equality and access:

How a judge/magistrate in a criminal case upholds fairness:

An independent judge or magistrate is essential to achieving fairness because they act as an impartial decision-maker who ensures the trial is conducted according to law and proper procedure. Judicial officers control the courtroom, enforce court rules consistently for both parties, and ensure that evidence is admitted and used in accordance with the rules of evidence (for example, by excluding irrelevant or unfairly prejudicial material and ensuring evidence is properly tested through examination and cross-examination).
Judges provide directions to the jury and are required to clearly explain the key legal concepts relevant to a criminal trial, such as the burden and standard of proof, the elements of the offence, and how evidence should be assessed. These directions ensure that jurors remain informed, impartial, and focused on the law, rather than personal opinions or external influences. By guiding jurors on how to properly evaluate evidence and apply legal principles, judicial directions reduce the risk of misunderstanding and bias, thereby promoting fair and legally sound decision-making.

How a judge/magistrate in a criminal case does not uphold fairness:

Judges and magistrates are limited to explaining court procedures and legal terminology and are unable to provide legal advice or strategic assistance to self-represented parties. While this preserves judicial impartiality, it can disadvantage self-represented accused persons who may struggle to navigate the complex rules, evidentiary requirements, and formalities of a criminal trial. As a result, these individuals may be unable to present their case effectively or respond appropriately to the prosecution’s arguments, increasing the risk of an unfair trial outcome.
Judges and magistrates are appointed by the government, which may create a perception that they are more sympathetic to particular political ideologies or values. Although judicial officers are required to act independently, this perceived or potential alignment can raise concerns about impartiality. Where such perceptions exist, confidence in the fairness of decision-making may be undermined, and there is a risk—real or perceived—that verdicts are influenced by factors other than the law and evidence, leading to unfair outcomes.

How a judge/magistrate in a criminal case upholds equality:

Judges and magistrates uphold equality by ensuring that the rules of evidence and court procedure are applied consistently and equally to both the prosecution and the accused. By enforcing the same legal standards in every criminal trial, judicial officers prevent either party from gaining an unfair procedural advantage and ensure that all accused persons are treated equally before the law, regardless of their background or the nature of the offence.

How a judge/magistrate in a criminal case does not uphold equality:

Although judges and magistrates are required to act impartially, they remain human decision-makers and may be influenced by unconscious or implicit bias. Such bias can subtly affect how evidence is interpreted or how parties are perceived, potentially leading to differential treatment. This risk of subconscious discrimination may undermine equality before the law by allowing factors unrelated to the legal merits of the case to influence judicial decision-making.

How a judge/magistrate in a criminal case upholds access:

Judges and magistrates promote access to justice by applying court rules that protect victims and vulnerable witnesses, enabling them to give evidence safely and effectively during criminal proceedings. These protections are designed to reduce trauma, intimidation, and disadvantage that may otherwise prevent participation. Many of these safeguards are reflected in the Jury Directions Act 2015 (Vic), which guides how judges manage trials and direct juries in cases involving vulnerable parties. By ensuring appropriate protections are in place, judicial officers help remove barriers to engagement and improve access to justice for individuals who may otherwise be unable or unwilling to engage with the court process.
Judges explain relevant points of law to jury members through clear and structured judicial directions, enabling jurors to understand legal concepts, trial procedures, and their responsibilities in reaching a verdict. By clarifying how the law applies to the facts of the case, judges ensure that jurors can participate meaningfully and confidently in the trial process, thereby promoting informed decision-making and improving access to justice.

How a judge/magistrate in a criminal case does not uphold access:

Judges and magistrates must remain impartial and therefore rely on the parties to present all relevant evidence during a trial. Where an accused person lacks access to legal representation, they may be unable to identify, prepare, or present all relevant facts and legal arguments to the court. Judicial officers are unable to actively seek out evidence on behalf of either party, meaning gaps in the accused’s case cannot be corrected by the court. As a result, important information may not be placed before the judge or jury, limiting the accused’s effective participation and restricting access to justice by preventing the court from being fully informed when determining the outcome of the case.