The rights of an accused and victims in the criminal justice system: VCE Legal Studies

Syllabus dot point

“The rights of an accused and of victims in the criminal justice system”

6 min readUpdated 2 Jun 2026

Quick answer

The accused's rights in the Victorian criminal justice system include the right to silence, the right to a fair trial, the right to a jury for indictable offences, the right to legal representation, and the right to be tried without unreasonable delay (Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25). The victim's rights are set out principally in the Victims' Charter Act 2006 (Vic) and include the rights to information, to be heard, to protection during the trial, and to compensation.

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What this dot point is asking
The answer
Exam-style questions

What this dot point is asking

VCAA wants you to know the rights protected for both parties in a criminal matter and how each set of rights is upheld in Victoria. Expect a 5-8 mark medium response item.

The answer

Rights of an accused

Right to silence: The common law right confirmed in R v Petty (1991) 173 CLR 95. Reinforced in Victoria by the Evidence Act 2008 (Vic) s 89 (no adverse inference from silence at trial) and s 89A (limited circumstances for adverse inference from pre-trial silence in serious indictable offences). The Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(k) protects the right not to be compelled to confess guilt.
Right to a fair trial: A fundamental common-law right (Dietrich v The Queen (1992) 177 CLR 292) and protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24 and 25. Includes the presumption of innocence, the right to know the charge, adequate time to prepare a defence, and the right to legal representation.
Right to a trial by jury: For indictable Commonwealth offences under s 80 of the Constitution. For indictable Victorian offences under the Juries Act 2000 (Vic). A jury comprises 12 jurors; verdicts must be unanimous in Victoria for indictable matters (Juries Act 2000 (Vic) s 46).
Right to legal representation: Not absolute but protected by Dietrich v The Queen (1992) 177 CLR 292 (a trial of a serious offence may be stayed where the accused is unrepresented and would be denied a fair trial). Victoria Legal Aid provides legal aid under the Legal Aid Act 1978 (Vic).
Right to be tried without unreasonable delay: Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c). Pandemic and post-pandemic delays in the County and Supreme Courts have stretched this.

Rights of victims

Victims' Charter Act 2006 (Vic): Sets out principles that guide agencies' responses to victims, including respect, information, protection of privacy, and provision of services.
The right to information: Section 7 of the Victims' Charter Act 2006 (Vic) requires investigating agencies to provide victims with information about the progress of the investigation.
The right to be heard: Victim impact statements are admissible at sentencing under s 8K of the Sentencing Act 1991 (Vic). The statement informs the sentence but does not bind the court (R v Slack (2004) 58 NSWLR 552 is the leading NSW comparator and reflects the same principle).
Protection during the trial: The Criminal Procedure Act 2009 (Vic) Part 8.2 provides for special arrangements for protected witnesses (children, complainants in sexual offences and family violence matters). Includes remote witness rooms, screens, and pre-recorded evidence-in-chief.
Restitution and compensation: The Victims of Crime (Financial Assistance Scheme) Act 2022 (Vic) (commenced 1 July 2024) replaced the Victims of Crime Assistance Tribunal with an administrative scheme administered by the Victims of Crime Assistance Tribunal. The Sentencing Act 1991 (Vic) Part 4 allows the court to make restitution and compensation orders against offenders.

Tensions

The rights of the accused and the rights of victims are not always in tension, but some balancing is required:

the right to a fair trial requires the accused to know the case against them; this can require disclosure of material that may distress the victim;
the cross-examination of complainants in sexual offence and family violence matters has been progressively restricted by Criminal Procedure Act 2009 (Vic) reforms to protect complainants while preserving fair trial rights;
victim impact statements give victims a voice but do not bind the court, which must apply ordinary sentencing principles.

Linking rights to the principles of justice

Each right maps onto a principle of justice, and examiners reward that connection. The right to a fair trial and the right to silence uphold fairness, because they keep the hearing impartial and the burden on the prosecution. The right to legal representation and access to Victoria Legal Aid uphold access, by reducing the financial barrier to defending a charge. Special arrangements for vulnerable witnesses uphold both equality (an adjustment so the witness is not disadvantaged) and the victim's effective participation. Framing rights in this way turns a list into an evaluation of how well the system protects the parties.

Evaluating how a right is upheld and limited

Question: Explain the accused's right to legal representation and evaluate how effectively it is upheld in Victoria.

Step 1: State the right and its source

The accused has a right to a fair trial that, for serious charges, includes effective legal representation. It is not absolute, but Dietrich v The Queen establishes that a trial of a serious offence may be stayed where an unrepresented accused would be denied a fair trial.

Step 2: Identify how it is upheld

Victoria Legal Aid, established under the Legal Aid Act 1978 (Vic), grants assistance for serious indictable matters and provides duty lawyers in the Magistrates' Court, reducing the financial barrier to representation.

Step 3: Identify the limitations

Legal aid is means-tested and chronically underfunded (Productivity Commission, Access to Justice Arrangements 2014), so some accused fall outside eligibility yet cannot afford a private lawyer, and grants may not cover the full trial. This weakens the right in practice.

Step 4: Reach a judgement

The right is well protected in principle (Dietrich, VLA) but only partially in practice, because funding limits mean not every accused who needs representation receives it, undermining both fairness and access.

Common traps

Listing rights without their source: Each right should carry a statute or case (for example R v Petty for the right to silence, Dietrich for representation).
Confusing the accused's rights with the victim's rights: Keep the two sets separate; the Victims' Charter Act 2006 (Vic) governs victims, not the accused.
Saying a victim impact statement decides the sentence: It informs the sentence under the Sentencing Act 1991 (Vic) s 8K but does not bind the court.
Treating rights as perfectly upheld: Acknowledge limits: court delays, legal aid funding gaps, and victim service backlogs.

Exam-style questions

Questions in the style of VCAA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.

Practice7 marks

Discuss the extent to which the rights of an accused and the rights of victims are upheld in the Victorian criminal justice system.

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A 7-mark response needs both sets of rights with their statutory source, real examples, and a balanced judgement.

Rights of the accused: The right to silence at common law (R v Petty (1991) 173 CLR 95 and reinforced by the Evidence Act 2008 (Vic) ss 89, 89A). The right to a fair trial (Dietrich v The Queen (1992) 177 CLR 292; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25). The right to trial by jury for indictable Commonwealth offences (Constitution s 80) and for indictable Victorian offences (Juries Act 2000 (Vic)). Legal aid through Victoria Legal Aid under the Legal Aid Act 1978 (Vic).
Rights of victims: The Victims' Charter Act 2006 (Vic) sets out the principles guiding the response of agencies. Victim impact statements admissible under the Sentencing Act 1991 (Vic) s 8K. The Victims of Crime (Financial Assistance Scheme) Act 2022 (Vic) (from 2024) replaced the Victims of Crime Assistance Tribunal scheme with an administrative scheme.
Extent of upholding: Both sets of rights are reasonably well-protected on paper. In practice, both are constrained by court delays, victim service backlogs, and underfunding of legal aid. The 2023 Productivity Commission Report on Government Services flagged ongoing waiting times.

Markers reward both sets of rights with specific statutes and cases, and a balanced final assessment.

Practice5 marks

Explain two rights of an accused in the criminal justice system, and explain how each upholds a principle of justice.

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A 5-mark explain item rewards two distinct rights, each with its source, linked to a named principle of justice.

Right one: the right to a fair trial. A fundamental common-law right (Dietrich v The Queen) reinforced by the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25. It includes the presumption of innocence, knowing the charge, and adequate time to prepare. This upholds fairness, because the accused can genuinely participate in an impartial, open hearing decided on the evidence.

Right two: the right to silence. Confirmed at common law (R v Petty) and protected by the Evidence Act 2008 (Vic) s 89 (no adverse inference from silence at trial). This upholds fairness by preserving the presumption of innocence and ensuring the prosecution carries the burden of proof, so the accused is not compelled to assist the case against them.

Markers reward two genuinely different rights, each with a statute or case, and an explicit link to a named principle (fairness, equality or access).