Transcript Unit 4 – VCE Legal Studies Revision 2014

Unit 4 – VCE Legal Studies Revision 2014
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Chapter 5 – Dispute Resolution Methods
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Reasons for a court hierarchy
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Specialisation
Enables courts to specialise in hearing specific types of cases.
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Doctrine of Precedent
Lower courts must follow legal reasoning (Ratio decidendi) made by superior courts in same hierarchy.
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Appeals (on the grounds of severity or leniency, on the point of law)
Provides for a mechanism of review
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Administrative efficiency
Efficient/timely resolution of disputes
Cost effective
Utilisation of resources
Subject matter experts
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Original & Appellate Jurisdictions
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Role of VCAT
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The main purpose and reason is to ‘provide Victorians with a low cost, accessible,
efficient and independent tribunal that delivers high quality dispute resolution’. In
striving to achieve this aim VCAT specialises in resolving minor civil disputes in an
informal, cost-effective and timely manner, using a range of different methods of
dispute resolution.
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Resolving a dispute at VCAT
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Dispute resolution methods used by
courts and VCAT
Judicial Determination
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This involves going to court or VCAT and
having the judge, magistrate or VCAT
member decide the outcome of the case
and imposing a legally binding decision
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Have to follow rules of evidence and
procedure
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Going to court is expensive and time
consuming
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There is a legally binding decision and
someone is made a winner and loser
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There are strict rules of evidence and
procedure
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Dispute resolution methods used by
courts and VCAT - MEDIATION
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Uses an independent 3rd party known
as a Mediator
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Allows each party a chance to express
their side of the issue and their
desired outcome
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Does not offer suggestions
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Trained to facilitate discussion and
encourage co-operation to reach
their own solution
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Dispute resolution methods used by
courts and VCAT
CONCILIATION
ARBITRATION
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An unbiased 3rd party called a Conciliator who
tries to resolve a civil dispute.
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This is the next step after Mediation and
Conciliation
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Can make suggestions to the parties in order to
reach an agreement (key difference to
Mediation)
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The arbitrator is independent
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May make suggestions in attempt to have
parties mutually settle the dispute. If no mutual
acceptance, will make a binding decision
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Can order a resolution to a dispute – called an
award
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An award is a decision in favour of one of the
parties
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An award is legally binding and must be followed
just like a court order
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Any agreement is not binding so parties can
choose to not follow what was agreed
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Statistically however most parties observe any
agreements made to avoid further costs in court
procedings
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Strengths and weaknesses of dispute
resolution methods used by Courts and VCAT
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Strengths and weaknesses of dispute
resolution methods used by Courts and VCAT
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Chapter 6 – The elements of an effective
legal system
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Fair and unbiased hearing
The role of the judge
Strict rules of evidence and procedure
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Independent and impartial adjudicator
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Strict rules of evidence and procedure govern a trial.
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Both parties treated fairly and afforded equal opportunity
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All parties MUST comply with rules and procedures
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Ensure compliance with strict rules of evidence and procedure
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Evidence that has not been obtained in accordance with the law is
generally inadmissible
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Does not assist with case preparation (Inquisitorial System)
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Police must ensure all their evidence is gathered using correct and
lawful procedures or risk their evidence being ruled inadmissible by
the judge.
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Prior convictions relating to the past criminal record of the accused
are generally inadmissible .
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Strict procedural rules exist to govern the order and manner in which
a party must present their case to ensure the trial is fair.
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The existence of strict rules of evidence and procedure helps ensure
parties receive a fair and unbiased hearing by having parties treated
consistently and giving each an equal opportunity to present their
case.
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Judge is only human – mistakes can and do happen (Appeals)
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Not involved in determination of a NG plea as that is the role of the
Jury.
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Fair and unbiased hearing
The role of the parties
The need for legal representation
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The parties are responsible for, and in control of, the
preparation and presentation of their own case.
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investigating the law, gathering evidence that is
relevant to their case and determining how best to
present their evidence to the court.
(AFFORDABILITY) Legal practitioners (solicitors) can
charge approximately $1700 to prepare and present a
bail application in the Magistrates' Court.
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(McWhinney v. Melbourne Health [2011] VSCA 22).
(P.233 & 234)
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Control of the preparation and presentation of their
case
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Parties may deliberately omit, or inadvertently miss,
vital evidence that may impede the discovery of the
truth and lead to an incorrect verdict.
To help ensure fairness and impartiality legal
representatives assist to ensure their case is prepared
and presented in the best possible manner.
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Rules of evidence, procedure and the formality nature
of the trial process necessitates the use of legal
representatives
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To work effectively both parties need to be equally
represented
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Fair and unbiased hearing – Burdon &
Standard of proof
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Criminal
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Civil
Standard –
Standard -
Beyond Reasonable doubt
Balance of probabilities
Burdon –
Burdon –
Prosecution to prove case
Plaintiff to prove case.
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Fair and unbiased hearing
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Right to silence
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Right to bail
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Trial by jury
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Right to appeal
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Fair and consistent sentencing
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Right to an open hearing
Right to Silence
One feature of Victorian law is that an
accused person has the general right to
silence, meaning they cannot be compelled
to answer police questions during
investigations (other than generally
providing their name and address) and
cannot be compelled to give evidence
during their trial or disclose key elements of
their case to the prosecution prior to trial.
Furthermore, juries cannot assume an
unwillingness to provide evidence infers the
accused is guilty.
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Fair and unbiased hearing
Right to bail
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Individuals who have been charged with an indictable
criminal offence have the legal right to apply to be
granted bail; that is, to be released from police custody
until their next court date
Own Undertaking
Trial by Jury
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In criminal cases a jury of 12 independent people
determine the verdict
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Unanimous verdict required
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Majority verdict may be accepted in certain
circumstances 11/12
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Judge does not decide
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In civil cases a jury of 6 members
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Having 12 jurors who reflect a cross-section of society
determine a unanimous verdict, rather than one judge,
can increase the likelihood of a correct verdict
Conditional
Surety
•
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Being granted bail allows the accused to remain in
society with their family and friends, and to prepare
their defence.
An accused who is denied bail is held or remanded in
custody.
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Fair and unbiased hearing
Right to appeal
Fair and consistent sentencing
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Parties who are dissatisfied with the
outcome in their dispute may have the
opportunity to lodge an appeal or have
their case reviewed by a superior court.
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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
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Both parties may appeal if they believe
the judge or magistrate has made an
error in law that has led to an unfair trial.
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In a criminal case the prosecution may
also appeal against the leniency of a
sentence.
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.
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Fair and unbiased hearing
Right to an open hearing
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Transparent and accountable system
of justice
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Generally all trials are open to the
public unless circumstances dictate it
to be a closed hearing
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Access to the courts
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Increasing specialisation
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Courts are arranged in a hierarchy to allow for specialisation and administrative convenience, which assists a more efficient and timely resolution of disputes and improves access to
the courts.
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Specialised courts and lists exist to deal with specific matters in an informal and more efficient manner, and improve access to the courts for those who may belong to a
disadvantaged group or have special needs (for example, the Koori Court and Drug Court divisions of the Magistrates' Court and the Neighbourhood Justice Centre).
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Reducing legal costs
through the provision of legal aid services and the increase in the number of legal firms offering ‘no win, no fee’ services
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Increasing the range of dispute resolution methods used within the court system (including an increasing use of mediation, conciliation and arbitration, in addition to judicial
determination, within the court system)
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Reducing delays by the:
– use of directions hearings and pre-trial conferences
– use of information technology for the electronic filing, storage and uploading of court documents
– increasing use of alternative (or appropriate) methods of dispute resolution such as mediation, conciliation and arbitration
– increasing use of specialised courts.
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Reducing the formality of courts:
– providing tribunals, such as the Victorian Civil and Administrative Tribunal, to resolve civil disputes using a range of dispute resolution methods (including mediation, conciliation,
arbitration and judicial determination).
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Increase access via the use of VCAT
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Resolving disputes in a timely manner
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The causes of delays in the legal system
– The heavy reliance on the presentation of verbal evidence
– Complex pre-trial procedures and the existence of strict rules of evidence and procedure during trials
– The use of juries
– The use of legal representatives
– Constantly changing laws
– Parties being unaware of their legal rights and unable to find legal assistance
– Difficulties involved in gathering reliable evidence and obtaining forensic testing.
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The impact of delays
– Increases the cost associated with taking a case to court
– Deters individuals from accessing the court system and pursuing their rights
– Causes emotional stress and hardship for parties in both criminal and civil cases.
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Chapter 7 – The adversary System
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Role of the parties and the judge
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Two parties control the preparation
and presentation of their case –
according to constraints of law.
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Prosecution/defendant
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Plaintiff/defendant
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The parties present their case to best
represent their cause? – Can the
prosecution exclude evidence that
exculpates a defendant?
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Test the evidence presented – Cross
examination, present own witnesses.
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Role of the parties and the judge
Role of the Judge
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Trial is conducted in a fair and unbiased manner
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Rules of evidence, court procedures and rule of law followed
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Independent and impartial and cannot assist parties to present their
case.
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Does not follow the inquisitorial processes in Australia
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Determine questions of law regarding how the law is to be applied
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A judge can direct a jury to acquit because the standard of proof has
not been reached. Jury does not have to accept this.
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Explains relevant law to the jury
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Explains the points of law to the jury that needs to be proved in the
case before them.
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Judge determines the sanctions
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Role of the parties and the judge
Role of the jury
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Only required is a Criminal Trial when there is a plea of
not guilty.
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Sit in the County and Supreme Courts
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Not used in the Magistrates court
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Decide guilt/innocence in a criminal trial
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Unanimous decision. Some cases Majority verdict can
be accepted.
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Make a decision based on the facts presented before
the court.
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Can be used in civil trials by request.
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Differing Burdon and standards of proof.
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Strict rules of evidence and procedure
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Hearsay evidence
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Irrelevant evidence
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Previous convictions
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Illegally obtained evidence
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Opinion evidence
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Privileged information
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Rules of procedure
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Reliance on verbal evidence
The need for the rules of evidence and
procedure — strict rules of evidence
and procedure exist throughout the
court process to ensure that parties are
treated consistently and each has an
equal opportunity to present their case.
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The need for legal representation
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Assist with case preparation and presentation
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Guide you through the strict rules of evidence and procedures
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Ensure evidence is presented according to these rules
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Skilled in presenting evidence and extracting the truth from witnesses
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Solicitor – researches and prepares the case
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Barrister – presents the case to the court
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Assist with resolving power imbalance BUT can it promote an imbalance?
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Strengths and weaknesses associated
with the adversary system of trial
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The Inquisitorial System
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The Inquisitorial System
The role of the judge
the judge controls the court proceedings, assists in finding facts and ascertaining the truth in the case, and determines the
outcome. As such the judge is able to be involved in gathering evidence and calling and questioning witnesses.
The rules of evidence and procedure
the rules of evidence and procedure are less formal than under the adversary system, allowing a greater dependence upon
written statements, witnesses telling their story uninterrupted and a greater range of evidence (for example, hearsay
evidence and previous convictions are permitted, with the judge determining their relevance and weight).
The role of the parties and legal representatives
it is the judge's role to ensure that all relevant evidence is brought before the court and to ascertain the truth, so the parties
have less control over their case. Legal representatives assist the parties, as well as assisting the court in discovering the
truth (rather than controlling the evidence presented to the court).
The burden of proof
while the burden of proof may vary between countries, generally it is not specifically set on either party, as the main
objective of the judge and the trial is to ascertain the truth.
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Reforms to the adversary
Former Chief Justice of Australia, the
Honourable Murray Gleeson, AC, once
said, ‘The law, like any other human
creation, has defects, some of them
serious. It is in constant need of
improvement.’ The adversary system
has stood the test of time and there is a
level of confidence in the system;
however, reform is needed.
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Chapter 8 – Criminal Procedure
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Criminal Pre-trial procedures
Criminal pre-trial procedures refer to
the;
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initial arrest of the suspect,
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the granting of bail
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Released without charge
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Remanded in custody
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Judicial proceedings such as
committal hearing before trial
commences.
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Bail and Remand
Bail
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Bail provides for the release of a person
charged with an offence from custody
until the time of the trial.
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Remand
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If bail refused, unable to fulfil bail
conditions or suitable surety cannot be
found you will be held in custody.
The person charged makes an
undertaking to appear in court at a later
date
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Failure to do so will lead to further
offences, a possible warrant to arrest and
further charge/s
You are still presumed innocent but are
held in custody
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If found guilty, time on remand is
deducted from the sentence
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Bail and Remand
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Being granted bail means that the accused person is free to return to the community while
awaiting a hearing or trial.
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Bail may be applied for when a person has committed an offence for which he or she has
been summoned to appear in court on a particular date.
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Bail applications also are received in other circumstances — for example, when a person
who has been found guilty in the Magistrates' Court appeals against his or her custodial
sentence to the County Court.
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Bail will be refused if the accused person is deemed to be an unacceptable risk. This means
that the person hearing the bail application would consider that the person may re-offend
if released, interfere with witnesses, tamper with evidence or abscond.
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Accused people who are denied bail or who are granted bail but cannot meet the
requirements are held in custody (on remand) while awaiting trial or sentence.
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Committal Hearings
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Designed to test the prosecution evidence
before a trial
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Discontinue a case if a Prima Facie case does not
exist
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The magistrate has the authority to discontinue
the case and release the defendant, who may
later be re-charged if further evidence comes to
light.
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Committal hearings provide for greater
efficiency because time is not taken hearing
cases in higher courts where the prosecution
evidence is insufficient to support a conviction.
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The Director of Public Prosecutions (DPP) does
have the right to proceed directly to trial, but
this decision can be challenged by the accused
person in the Supreme Court.
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There are two types of committal hearings: the
traditional method, which relies on oral evidence
given under oath; and the hand-up brief
procedure, where evidence is given to the
magistrate through sworn written statements.
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General Purpose of Sanctions
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Overview of sanctions
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Imprisonment
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Youth Residential Centre orders
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Youth Justice Centre Orders
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Community Correction Orders
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Fines
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Required to know three types of
sanctions and their specific purpose
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Chapter 9 – Civil Procedure
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Participants and features of civil disputes
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Types of torts and considerations before
taking civil action
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Pretrial procedures
Letter of demand
A letter sent by the plaintiff (or their legal practitioner) to the defendant informing the
defendant of the plaintiff's intention to commence legal proceedings against them. It outlines
the alleged breach of rights and the remedy being sought by the plaintiff.
Aiming to reach an out of court settlement
One of the main aims of the parties to a civil dispute must be to reach an out-of-court
settlement or resolve their dispute without the need to go to court.
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Pretrial procedures
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Civil remedies
Purpose of civil remedies
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Compensation for losses suffered is often the only remedy available to plaintiffs who cannot be returned
to their original position prior to the civil wrong occurring; for example, in cases where negligence has
caused severe or irreversible injuries.
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Damages
– A sum of money paid by the defendant to the plaintiff to reimburse the plaintiff and compensate for losses
suffered.
- Compensatory damages — includes specific damages that can be precisely calculated, such as medical
expenses and loss of wages; or general damages for unspecified amounts, such as for pain and suffering.
- Exemplary damages
- Aggravated damages
- Nominal damages
- Contemptuous damages.
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Non-financial civil remedies
Injunctions
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Mandatory Injunction
Compels a party to undertake an action
An injunction is a court order requiring the defendant to
1.
Undertake
2.
Refrain from undertaking
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Restrictive Injunction
Restraining a party from undertaking an action.
Actions to rectify or prevent breach of rights
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Perpetual Injunction
Permanent Orders
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Interim Injunction
Provides a temporary remedy until the case has been
finalised.
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Non-financial civil remedies
Order of specific performance
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Relates to breach of contract
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Compels the defendant to carry out the requirements
of the contract
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Not compensated in terms of financial remedy
Legal Costs
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Legal practitioner costs are the costs associated with
a legal practitioner in the case and providing legal
advice.
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Party–party costs are those legal fees charged as a
result of direct communication between both parties to
the case.
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Legal practitioner–client costs are not paid by the
losing party and, in many cases, they form the bulk of
expenses at the conclusion of the trial.
Rescission
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Relate to breach of contract
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Generally only made when the parties can be returned
to their original position prior to the contract
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Order can terminate and/or cancel the contract
Restitution
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Made in cases where the defendant is in possession of
property belonging to the plaintiff.
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Order required the defendant to return the property to
the plaintiff.
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Chapter 10 – The jury system
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The role of the jury
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Factors that influence the composition of
juries
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Empanelling a jury
Empanelment is the process whereby legal counsel, the prosecution and defence decide which jurors will be selected for trial.
– Employers are required to grant leave to employees to attend jury duty, and must make up the difference between the jury fee and the regular income
that would have been earned.
– A jury of 12 people is required for criminal trials, although 15 people are empanelled if it is likely to be a long trial.
– Protecting the privacy and anonymity of jurors is safeguarded in the jury empanelment process because each juror is now commonly allocated a number
and only identified by that number, rather than their name, if the court decides that names of potential jurors should not be read out in court.
– Challenges must be made before the juror is seated in the jury box.
– The prosecution has the right to stand aside jurors in criminal trials, while the defence has the right to challenge potential jurors.
– Peremptory challenges are limited and do not require a reason justifying the challenge.
– For cause challenges are unlimited but do require a valid reason.
– The number of peremptory challenges permitted depends on the number of people being arraigned.
– Once the required number of jurors is assembled, the jury takes an oath or affirmation swearing that they will faithfully and impartially perform their role
as jurors.
– Juries in civil trials are optional. If used, a jury of six to eight people is required, depending upon the length of the trial.
– Twelve names are selected and each side eliminates three names, leaving the required number of six jurors.
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Role of the judge in a jury trial
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Strengths of the jury system
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Trial by one’s peers is reflective of communities
values
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Representative of a cross section of the
community.
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Reducing the possibility of corruption or bias
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Decision making is shared
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Stood the test of time. Has been used for the
past 800 years
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Ordinary people become involved in the legal
process
Determination of cases/greater respect and
understanding of the law
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Protection against misuse of power
Similar to the separation of powers
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Openness and transparency of the legal system
No preferential treatment/open
hearings/community involved
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Simplification of procedures
A system that becomes easier to understand.
Parties get a better understanding as cases
should be understood by all.
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Weaknesses of the jury system
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Biased Jurors
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Personal prejudice. Media influence
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Unrepresentative of a cross section
Disqualified/Ineligible/excused
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Majority verdicts
Vs Beyond reasonable doubt for all
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Can it be understood? Ability to distinguish
the key issues/evidence
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Inconsistent award of damages
Due to inadequate knowledge of previous
cases and may require greater guidance
Adds to cost of trial
$9000 per day in County/Supreme court
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Adds to the length of the trial
Jury empanelling, explanation by judges,
absence of jurors
No reasons for verdict
Are they held accountable?
Complex legal proceedings
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Easily influenced
May become intimidated, follow the
majority if confused, emotion of a case
prevailing not critical thinking
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Reforms & Alternatives to the jury system
Reforms
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– Reforms to the jury system could include the following:
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- the training of jurors
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- appointing a specialist foreperson
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- limiting avenues for not participating in a jury trial
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- providing better pay and more education to jurors
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- reducing or eliminating the number of peremptory
challenges allowed
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- reducing jury size
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- introducing a ‘not proven’ verdict
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- abolishing civil juries
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- simplifying jury directions
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- providing reasons for jury verdicts.
Alternatives
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– Victoria's current jury system could be replaced by
possible alternatives to the jury system:
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- a judge could hear the case alone without a jury, and
decide verdict and sentence
•
- a permanent panel of professional people could be used
as jurors on numerous cases
•
- specialist jurors could attend cases that involve their area
of expertise
•
- trained assessors could calculate damages awarded to
plaintiffs by using a consistent scale.
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Acknowledgement
•
Diagrams and text information used
in this summary guide has been
ascertained from;
Key Concepts in VCE Legal Studies
(Units 3 & 4), John Wiley & Sons 2012.
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