Transcript What makes an effective legal system?

What makes an effective
legal system?
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Key Knowledge
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Your Experience

Describe a time when you had a disagreement with someone (parent,
friend, sibling, teacher, team-leader etc.)
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How was it resolved?
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Were you happy with the outcome?
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What factors led you to be satisfied/unsatisfied with the outcome?
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Three Elements that make an
effective legal system
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Three Elements:
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1. Access to the legal system
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2. A fair and unbiased hearing (taking
into consideration)
human rights
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3. The timely resolution of disputes
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http://www.theage.com.au/victoria/right-to-fair-trial-at-risk-judge-20121204-2atcv.html
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http://www.theage.com.au/victoria/justice-fear-as-legal-aid-cuts-bite-201301162ctrf.html
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http://www.theage.com.au/victoria/another-trial-postponed-as-legal-aid-cuts-bite20130218-2emox.html
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Case study
•
Sally, a year 12 student, was told to visit the school
principal because she had done something wrong. She
waited with anxiety outside the principals office all day,
only to be told to come back the next day. After a sleepless
night, the principal called Sally into his office and berated
(scolded) her. He referred to a file that noted Sally and her
older brother were involved in a similar wrongdoing when
she was in year 7 and commented that she was just like her
brother. Sally was not given an opportunity to present her
own version of the events that had occurred. When Sally
requested that her parents be called, the principal said the
matter had nothing to do with them and told her not to say
a word about the incident to anyone.
•
With reference to the three elements of an effective legal
system, explain why Sally was not treated appropriately.
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How would you measure;
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A good car?
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A good book?
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A good friend?
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We place criteria or markers to enable us to measure it.
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Sometimes its not easy!
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The Jetcorp Case (P.231)
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Ask the following people;
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A young rape victim who is reluctant to come forward
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The parents whose daughter was murdered and went
through the trial only to find the judge misdirected the
jury
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The mentally ill defendant whose illness is not given
consideration in our justice system
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Crimes Mental Impairment consultation paper_0.pdf
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6.1 – The adversary system of trial aims to
achieve a fair and unbiased hearing
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Parties involved
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Courts
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Tribunals
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Police
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Legal Aid
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Legal Practitioners
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All assist to resolve disputes and all have various processes and
procedures in place to ensure that individuals who come before
them are treated equally and given a fair and unbiased hearing
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http://www.theage.com.au/victoria/police-power-to-stop-cars-under-threat-20130620-2oluv.html
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http://www.innocenceprojectwa.org.au/
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http://www.theage.com.au/national/police-bash-victim-considers-compensation-claim-201307132px3o.html
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The Judge
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Independent and impartial
adjudicator
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Both parties treated fairly
and afforded equal
opportunity
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Ensure compliance with strict
rules of evidence and
procedure
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Does not assist with case
preparation (Inquisitorial
System)
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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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Strict rules of evidence and
Procedure
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Strict rules of evidence and procedure
govern a trial.
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All parties MUST comply with rules and
procedures
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Evidence that has not been obtained in
accordance with the law is generally
inadmissible
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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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The role of the parties
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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.
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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. (WHY)
and is it up to the other party
to counter this????
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The need for legal
representation
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(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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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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Burdon and Standard of Proof
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Criminal
Burden of proof Presumption of
innocent till proven guilty.
Prosecution must prove their case. In
civil cases the plaintiff must prove
their version of the facts
Standard of proof Criminal Cases
‘beyond reasonable doubt’ is higher
than civil cases which relies on the
‘balance of probabilities’
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Civil
Burden of Proof
Standard of Proof
http://www.heraldsun.com.au/news/law-order/stephenmilne-fronts-melbourne-magistrates-court-on-rapecharge/story-fni0fee2-1226675059189
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Your Turn
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Complete questions 1 –
6 on page 234
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