Transcript Slide 1

Topic 4 Justice Systems
 Other
than going to court there are a few
methods of alternative dispute resolution
 These can take form as either;
• Direct party control
• Third party intervention
 Self-help
– take action yourself (cut branches
down and throw back over fence)
 Abandoning claim – pursuing civil claim not
worth the time, effort and cost
• Police/DPP don’t pursue criminal claim as minor
offence or low likelihood of conviction
 Conceding
claim - admit liability and
compensate plaintiff or accused pleads guilty
 Consensus
• Civil – meet to come to a mutual agreement
(perhaps legally binding agreement made)
• Criminal – plea bargaining = plead guilty to a lesser
charge (see Nemer case)
 Mediation
• TP initiates discussion to get parties talking
 Conciliation
• TP offers suggestions to parties (these are
compulsory conferences in civil proceedings)
• The Equal Opportunity Commission operates
using such methods
 Arbitration
• TP makes a decision. Both parties must first
agree to abide the decision
High Court of Australia
Family Court
Federal Magistrates Court
Federal Court
Supreme Court of SA
Supreme Court NSW
Supreme Court Tas
District Court
District Court
District Court
Magistrates Court
Magistrates Court
Magistrates Court
 Allows
for judicial review
• Appeal to superior court (Nemer case DPP appealed
from the Supreme Court to the Court of Criminal
Appeal as to leniency of sentence)
 Doctrine
of precedent
• Principle of stare decisis
• Gives certainty and predictability
• e.g. Full Bench of High Court in Dietrich
• Case cannot proceed if accused is denied
representation through no fault of their own
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Administrative efficiency
• Minor cases dealt with quickly and at minimum cost to
community in the many Magistrates Courts
• Fewer Supreme Courts to deal with large and complex
cases
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Specialisation
• Courts specialise (e.g. Family Law, Supreme Court for
murder, Mag Ct for DUI)
• Also use of specialised tribunals (e.g. EP and D, LL)
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Reflects federal law-making system
Flexibility and choice
• Civil case plaintiff can choose inferior court, but if they
want legal principles established take to superior court
• Criminal cases – minor indictable offence can choose
Mag or judge and jury in District
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2.
3.
4.
Two autonomous parties
Independent and impartial judge
Strict rules of evidence and procedure
Issues of fact decided by jury
(indictable criminal cases)
 Civil case
 Plaintiff and defendant
 Criminal case
 Prosecution (DPP) and defence (Accused)
 Judge
is to be independent of the other
two (L & E) arms as well as from the
parties to the case
 Judges determine facts if no jury
Admissible Evidence
Direct
Original evidence – seen, heard or
smelt
Indirect
Circumstantial – can infer facts
Primary (best)
evidence
Secondary
Original objects and documents
(murder weapon)
Opinion
Experts in their field
Photocopies of originals, photos of
weapon
Inadmissible Evidence
Hearsay
Relayed or overheard from one person
to a another
Illegally obtained
Confessions under duress or without
knowing rights
Opinion
Not an expert in the field
Past criminal records
Cannot judge a person in the current
case based on their past actions
Questions on admissibility of evidence are heard at a voir dire
 Parties
must present evidence – the
judge does not seek evidence from the
parties
 Party making the allegation presents first
(burden of proof on prosecution /
plaintiff)
 Witness sworn in on oath or affirmation
and give evidence in viva voce form
1. Examination-in-chief
2. Cross-examination
3. Re-examination
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Rule of law
Natural justice (right to fair
trial, right to know
allegations made,
independent judiciary)
Burden of proof lies on
prosecution / plaintiff
Standard of proof (criminal
= BRD civil = B of P)
Ignorance is no defence
Right to remain silent
Right to trial by jury for
criminal (statute in SA, s80
constitution for federal)
Double jeopardy
Worst
Legal
Studies
film
ever….
Real Stories - Legalised Crime
Judicial
Executive
Legislativ
e
Court system
Police force, DPP,
CSO’s
Parliament make
criminal laws
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Summary Offence
Minor Indictable
Indictable
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Elements needed
Guilty act
Guilty mind
Strict liability the AR is
sufficient (DUI,
speeding)
Offences against
Person
Property
Public order (society)
Charge is read to accused
Plea
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Guilty Plea
P presents summary of facts
Accused admits
Magistrate hears submissions
from both parties re:
appropriate penalty
(character witnesses give
evidence)
Magistrate gives sentence
(court costs and victims of
crime levy)
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Not guilty plea
P presents case (examines
W’s, accused can crossexamine, P may re-examine)
Accused presents case
(examines W’s, P can crossexamine, accused may reexamine)
Closing address by parties
Magistrate delivers verdict
and sentence
 Legal rights of the accused
• Right to be heard
• Right to silence
• Burden of proof rests on the Prosecution
• Right to cross-examine P witnesses
• Right to trial by jury
• Adherence to strict rules of evidence (and
challenge admissibility)
• Double jeopardy
Crime reported or observed
Police Investigation
Bail application
Preliminary Hearing
 Police
investigate crime
 Arrest alleged offender
 Gather evidence
 Suspect can be detained for questioning
at police station for 4 hours (or longer if
Magistrate’s approval given)
Know what you are being arrested for
Silence
Phone call
Rights on arrest
Presumption of innocence
Legal Rep
Bail
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Can apply to police
If refused can apply to Magistrate
Considerations
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seriousness of offence
protection of V
absconding
past bail record
strength of evidence
Conditions
• Attend relevant court hearings in future
• Conform with certain conditions (not to associate, live at certain
address)
• Fofeits sum of money if they do not comply
 Also
known as committal hearing and is heard
in Magistrates Court
 Determine whether a prima facie case against
the accused exists for an indictable offence
 Accused may plead guilty (sentenced in
superior court). If they plead NG;
 Evidence is written and submitted to the
Magistrate (unless leave given for viva voce
evidence)
 If Magistrate believes a prima facie case exists,
the accused will stand trial in superior court
Role of parties
Present own case. Prosecution
has the onus (burden) of proof
Role of lawyers
Prosecution = present E and call
W’s
Defence = represent client,
present E and call W’s (not to
prove innocence)
Role of witnesses
Viva voce form to answer Q’s put
to them (penalties exist for
deliberate untruth)
Role of judge
Role of jury
Enforce rules of evidence and
procedure
Sentences guilty party
Listen to evidence to determine
facts
Arraignment
Empanelling of jury
Prosecution case
Defendant’s case
Closing address
Judge sums up
Jury verdict
 Arraignment
(plea entered)
 Empanel jury (section of 25 down to 12)
 Prosecution case (bear burden of proof)
 Defendant’s case (can seek ‘no case to answer’
R v Che)
 Prosecution rebuttal (e.g. new alibi raised)
 Closing
address (P then D)
 Judge sums up (outlines relevant law, burden
and standard of proof, role of jurors)
 Jury verdict – G, NG or hung jury
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Factors a a court will
consider when
determining a sentence
are listed in s10 of the
Criminal Law
(Sentencing) Act 1988
(SA)
These factors include:
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Circumstances of offence
Personal circumstances
and effect on victim
Remorse shown
Guilty plea and cooperation in investigation
Effect on offender’s
dependents
Theories of punishment
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Protection
Punishment (retribution)
Deterrent
Rehabilitation
A
custodial sentence will have two
components;
• Head sentence
• Non-parole period
 Judge
may suspend the sentence on the
condition the offender enters into a good
behaviour bond
 Other (non-custodial) sanctions include fines,
community service orders, home detention,
seizure of property gained by illegal means
and being forced to listen to Mr Scott’s “Best of
Vanilla Ice” CD
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Appeals are not a re-trial – the Court of Criminal
Appeal reviews the conduct of the case to ensure it was
a fair trial
There are two grounds for appeal
• Issues of law (incorrect admissibility of evidence)
• Issues of fact (incorrect weighting of evidence or the severity of
sentence – manifestly inadequate or manifestly excessive)
(cannot appeal a jury verdict of NG – DJ)
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The appellate court has two options
• Find for appellant
• Find for respondent
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After this, leave need be sought to appeal to the High
Court of Australia (Full Court of High Court)
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Civil law is designed to compensate an aggrieved
plaintiff – not to punish a defendant
Principal of finality (res judicata) – once a matter has
been heard and decided it cannot be brought to court
again (except on appeal)
Procedural fairness – equality before the law?
Privity – only parties with an interest in the case can
contest the matter
Adversarial principle – parties control their own cases
Public accountability – court is open to public
Disclosure – forward evidence to each party
Obligation to give reasons (create precedent and allow
for appeals)
Incidence of costs – unsuccessful party will pay costs
 To
ensure a speedier resolution of claims
(and to reduce costs on the parties) civil
cases must follow “strict” timelines
(although the times are still lengthy)
 There are also compulsory pre-trial
conferences to encourage the use of ADR
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Once civil wrong committed the plaintiff can choose to take action
against the defendant
Initial proceeding: P contacts (letter of demand) D outlining the nature
of their grievance and the remedy sought
Statement of claim: If D has ignored leter of demand P can lodge a
statement of claim in the relevant court (according to jurisdiction)
D enters an appearance: An intention to legally challenge the claim.
Failure to lodge can lead to P winning a ‘default judgement’
Pleadings: Statement of claim responded to with a statement of
defence will admit some issues and deny others. All evidence to be
disclosed to either party (discovery). This may settle the matter as
parties see what evidence they face
Pre-trial conferences: Compulsory ADR to encourage settlement. If not
resolved parties have a trial date set.
Often liability may be admitted but it is the quantum (amount sought in
remedy) that is disputed.
 Follows adversarial system
 Plaintiff presents case first (XE-in-Chief, XXE,
Re-XE)
 Defendant puts case forward
 Summing up by parties (P then D)
 Judgement: Liability decided on the balance of
probabilities;
• D not liable
• D liable
• D liable but P contributed to the loss – liability is
apportioned
 Remedies
are to compensate the P not punish
the D
 Basically the P is to be put back into the
position they would have been in if it were not
for the D’s civil infringement
 When damages awarded
• Special damages (claims for economic in $ terms –
medical, repairs, future earnings)
• General damages (claims for non-economic loss
which can’t be quantified in $ terms – pain and
suffering, nervous shock, loss of amenities)
 Costs
will usually be awarded to the
successful party. However this may be
jeopardised if the plaintiff should have
taken the action to an inferior court
 Enforcement of judgement:
• Plaintiff may need to take further action to
receive their damages
 Warrant for sale
 Garnishee order
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2.
Appeals limited to two areas
Issues of fact: Argument of weighting of
evidence or amount of compensation
Issues of law: question over the
admissibility of evidence or the
incorrect application of a precedent
Civil
Criminal
Plaintiff takes action
Society takes action
Based on common law
Based on statute
Jurisdiction based on $
Jurisdiction based on severity of crime
Burden lays on plaintiff
Burden lays on prosecution
Balance of probabilities
Beyond reasonable doubt
No juries
Juries
Plaintiff must testify
Victim not a party to proceedings
Defendant must testify
Right to silence
Compensate plaintiff
Punish defendant
Liability can be apportioned
Guilty
 What
is the same?
 Adversarial system
 Trial one continuous event
 Rules of evidence
 Judge enforces rules and procedures
 Courts use hierarchy and jurisdictions
 Doctrine of precedent
The jury system
 The
jury’s role is to hear the admissible
evidence and determine the facts.
 They then apply these facts to reach a
verdict
 The jury is to represent a cross-section of
the community as the accused is being
judged by their peers. This is an
extension of the democratic principle
 Set
out in the Juries Act 1927 (SA)
 The Sheriff gets around 6000 random
names (between 18 -70 years) from
electoral roll for House of Assembly
 DQ’d
 DQ’d
people are excluded from jury duty
people include people who have
• have ever been imprisoned for a crime where life
sentence is the maximum term
• have ever been imprisoned for a term exceeding 2
years
• within the last 10 years have been imprisoned (or on
probation or parole)
• within the last 5 years been convicted an offence
punishable by imprisonment, had licence DQ’d for
>6 months, been under gbb or charged with an
offence (punishable by imprisonment) but charge
not yet determined
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Mentally or physically
unfit to carry out duties
of a juror
Have insufficient
command of the English
language
Occupations listed in the
Juries Act;
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The Governor, the Lieutenant Governor and
their spouses or domestic partners;
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Ministers of the Crown and their spouses or
domestic partners;
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Members of Parliament;
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Members of the judiciary or magistracy
and their spouses or domestic partners;
Justices of the peace who perform court
duties and their spouses or domestic
partners;
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Legal practitioners actually practising as
such;
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Members of the police force and their
spouses or domestic partners;
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Persons employed in a department of the
Government, or employed by a body
prescribed by regulation, whose duties of
office are connected with the investigation
of offences, the administration of justice or
the punishment of offenders;
Persons employed in the administration of
courts or in the recording or transcription
of evidence taken before courts.
 Applications
must be a signed statutory
declaration
 People who can apply to be excused must be a
• priest, rabbi minister
• conscientious objector
 Temporarily
excused (deferring of duty) can
be for reasons such as
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illness
pregnancy
study commitments
business commitments (highly paid professional are
commonly excused)
Random selection (6000)
Vetting by Police Commissioner (400)
Summoning potential jurors (220)
Final vetting by jury manager (140)
Monthly service induction (140)
Jury sections (25)
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The section of 25 jurors will observe the arraignment of
the accused (plead guilty or not guilty)
DPP then reads out all names of witnesses to give
Crown’s evidence
Judge will excuse any juror who has an association with
any parties mentioned
Jury Manager then randomly selects names from a box
Prosecution and defence have 3 peremptory
challenges
Can challenge any number with cause (reason with
judge)
Juries Act allows up to 15 jurors (up to 3 reserve jurors)
 Jury
trials can continue with at least 10 jurors (if
some drop out due to illness)
 For murder a unanimous verdict is needed – all
jurors agree G or a majority for NG
 Other crimes, if 4 hours deliberation, a majority
verdict is allowed (10 of 12) for guilty or not
guilty
 If these levels not reached (9-3. 8-4, 7-5, 6-6)
there is a hung jury and judge declares a
mistrial
 Double jeopardy does not apply as accused
has not been found not guilty (not been
acquitted)
A
perverse verdict is where the jury’s
decision is contrary to the facts /
evidence law. Such verdicts may well be
appealed.
 A jury’s verdict of not guilty cannot be
appealed however
 The jury may find an alternative verdict.
For example, guilty of manslaughter on a
charge of murder
 Seeks
the truth by inquiry (rather than
adversarial nature)
 When an offence is reported a judge is
appointed to investigate the offence i.e. collect
the evidence
 The judge controls the case and examines
witnesses
 In France one judge investigates the matter and
decides whether or not the accused should be
prosecuted (heard by another judge)
 Accused
does have the right to remain
silent and is presumed innocent until
proven guilty at trial
 The accused does have to answer
questions asked at them by judge in the
trial
 Legal representation is allowed and assist
the judge in finding the truth – they can
question the evidence and witnesses
A
dossier is kept by examining judge
containing all evidence (written
statements of witnesses)
 Accused not committed to trial unless a
very strong presumption of guilt –
perhaps undermines the presumption of
innocence.
 Is this any different to having a committal
hearing?
 Unlike
the adversary system, there is not one
continuous trial. A trial can be postponed while
further evidence is collected
 The prosecution presents the evidence and the
judge will ask the witnesses questions
 Witness evidence is given in the narrative form
 An intermediary “not proven” verdict is
allowed. The defendant is released but may be
asked to stand trial again at a later date. DJ
doesn’t apply
 Written
statements allowed
 Rules of evidence less strict –
admissibility determined on basis of
relevance
 Past convictions and character evidence
may be considered
 The reliability of the evidence goes to
weighting, not to its admissibility
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Civil claims can be heard at the same time as a
criminal trial if they occurred in the same incident
Appeals allowed on issues of fact but not on issues of
law
Parties have less control of case
Not one continuous trial
Intermediate verdict
W’s can give written statements and in narrative form
E and J arms of govt blurred at investigation
J asks questions of W
Presumption of innocence undermined?
Less strict rules of evidence
Admin
tribunals
Inquisitorial
System
Mag Ct
Minor Claims
Coroner’s
court
 Access
to courts
 Move towards inquisitorial system
 Legal aid availability
 Changes to jury system
 Rules of evidence and procedure
 Problems of inequality (financial, ability
to speak to English)
Strengths
Weaknesses
Party control
Do parties contest the dispute from a position of
equality?
Truth emerges from argument
Parties may conceal evidence
Equality before the law
Equal access to the law?
Fundamental legal rights
Rights of victim ignored
Judicial independence
Perhaps judges should take more active part
Rules of evidence
People acquitted on technicalities
Rules of procedure
Perhaps pausing trial to collect more evidence
has some merit
Trial by jury - peers
Peers not qualified
Right of appeal
Expensive process to appeal
 Give
judge broader powers to examine and
call witnesses if it is in the interests of justice
 Abolish right to remain silent
 Increase accessibility to law – legal aid,
allowing acquitted persons to redeem costs,
penalties for parties who deliberately delay
 Simultaneous criminal and civil trials
 Abolish adversarial system in favour of
inquisitorial system
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Strengths of rules of
evidence include;
• fair to both parties
• removes irrelevant
evidence
• deter ill-prepared cases
• prevents illegal obtaining
of evidence
• can suppress evidence not
in public interest
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Weaknesses of rules of
evidence include;
• financial imbalance
between parties can be
exploited
• rules lead to unjust
outcomes (R v Coco –
illegal listening device
inadmissible)
• No guarantee all evidence
will come out as under
party control
• Right to remain silent may
prohibit justice
 Rule
should be changed to relevance is
paramount. Hearsay or illegally obtained
(under technicality) should be allowed in
the interests of justice
 Accused must testify
 Allow witnesses to give evidence in
narrative form
 Allow children, vulnrable witnesses to
give sworn statements
Strengths
Weaknesses
Extends democratic principle
Not a true cross-section
(exclusions and ineligible)
Judgement by one’s peers
Unqualified jurors
Shared decision-making
Non-disclosure of reasons
Community respect
Inconvenience and cost
Lengthy process of presenting
evidence means more $ for the
lawyers!
 Broaden
eligibility criteria
 Active role at trial
 Give reasons for verdict
 Jury vetting
 Alternatives?
• Abolish trial by jury
• Composite jurors
• Inquisitorial system
Strengths
Weaknesses
Just outcomes
State dominated justice
Better accessibility to
legal system
Intermediate verdicts
Compromising role of
judge (E and J overlap)
Presumption of
innocence undermined?
Denial of trial by jury
Avoid problems of jury