Embed Size (px)
Citation preview
Unit 4: AOS2- Court processes and procedures, and engaging in justiceK
ey K
now
ledg
e 1:
The
elem
ents
of a
n ef
fect
ive
lega
l sy
stem
: ent
itlem
ent t
o a
fair
and
unbi
ased
hea
ring,
eff
ectiv
e ac
cess
to th
e le
gal s
yste
m a
nd ti
mel
y re
solu
tion
of
disp
utes
Elements of an effective legal systemFair and unbiased hearing
Legal system tries to ensure this through processes and procedures. Gives equal opportunity to prepare and present case.
Timely resolution of disputes Wants to achieve this to provide closure. Timely manner is one without delays but allows ample time to prepare.
Effective access to legal system People need access to the legal system to achieve justice. Means access to lawyers, legal aid, courts/VCAT and interpreters.
Key
Kno
wle
dge
2:M
ajor
feat
ures
of t
he a
dver
sary
syst
em o
f tria
l, in
clud
ing
the
role
of t
he p
artie
s, th
e ro
le o
f the
judg
e, th
e ne
ed fo
r th
e ru
les o
f evi
denc
e an
d pr
oced
ure,
stan
dard
and
bur
den
of p
roof
and
the
need
for l
egal
repr
esen
tatio
n
ADVERSARY SYSTEM OF TRIALRole of the parties1. Party control: Parties have full control of their case, including: - whether to bring proceedings: in a civil case the wronged party decides whether to sue. In a criminal case the accused can plead either guilty or not guilty - preparation for trial including gather evidence, investigating the relevant law - mode of trial – whether heard by judge and jury, judge alone or magistrate.
2. Role of the judgeThe judge or magistrate acts as an independent and impartial umpire, ensuring that the parties follow the rules of evidence and procedure. They rule on matters of law, decide the admissibility of evidence, direct the jury, decide the sanction in criminal cases and decide the civil outcome if no jury.
3. Burden and standard of proofBurden of Proof: Party with the responsibility of proving the case: prosecution (criminal) or plaintiff (civil)Standard of Proof: Extent to which case needs to be proven.
4. Rules of evidence and procedureRules of evidence are concerned with proof of facts and are there for the protection of both parties. Admissible evidence includes oral evidence, affidavits, objects and circumstantial evidence. Inadmissible evidence includes hearsay, opinion, irrelevant, illegally obtained, prior convictions and evidence of bad character.Rules of procedure provide the steps and order for bringing out the evidence.
5. Need for legal representationDue to strict pre-trial, trial and post-trial procedures and rules of evidence, there is a need fro parties to be represented by someone who knows the rules. Legal representation is necessary in order for parties to present the best case for them, to question witnesses under oath in court, and to achieve a just outcome.A judge from Supreme or Country court can order Vic Legal Aid to represent an accused person in a criminal trial if they feel that the accused person would not get a fair trial without legal representation, and they cannot afford their own representative.
Key
Kno
wle
dge
3: S
treng
ths a
nd w
eakn
esse
s of t
he a
dver
sary
syst
em o
f tria
lStrengths and weaknesses of the adversary system
Role of the partiesStrengths Weaknesses
Party satisfaction as they’re in control.Prepare own case, independent of the state that is
prosecuting them.Parties will prepare best case possible to support their
claim.
Winner/loser ∴ could cause animosity between parties.
Not all evidence could come out as parties only provide evidence that supports their case (except prosecution).
Delays could be caused by time taken to gather evidence and prep case.
Role of the judgesStrengths Weaknesses
Impartial, independent 3rd party adjudicator ensures fairness for both parties.
Decisions only made based on the evidence put before the court and no prior association between judge/parties.
Judge independent from prosecution in criminal case.
Limited role for most experienced person in the court room, not being fully utilised.
They’re unable to suggest questions, issues or evidence to be explored.
Unable to assist an unrepresented or poorly represented party.
Role of legal representativesStrengths Weaknesses
Equal rep for parties ensures fairness each party has the opportunity to present their case in an expert manner.
Having an expert represent them results in an objective, reasoned argument.
One party may not be able to afford it ∴ deterring them from pursuing case or appearing unrepresented.
Unrepresented = disadvantage.Party could be disadvantaged by having less
experienced/skilled lawyers.
Rules of evidence and procedureStrengths Weaknesses
Fair and consistent as both parties are subject to the same rules.
Ensures only relevant/reliable evidence is led, and no evidence that will prejudice the accused.
Both parties are able to test each other’s evidence through cross-exam of other parties witnesses ∴ truth should emerge.
Oral evidence may be incomplete due to intimidation felt, communication difficulties, forgetting/confusing key facts and only being able to answer direct questions rather than telling their story.
May be useful evidence omitted because it’s inadmissible, truth may not emerge.
Burden/standard of proofStrengths Weaknesses
Having a party that initiated the case proving the case is fairer than a 3rd party or the defendants prove it.
Presumption of innocence treats each equally.
Emphasis is on winning or proof, rather than the truth.
Key
Kno
wle
dge
4:M
ajor
feat
ures
of t
he in
quis
itoria
l sys
tem
of t
rial
Inquisitorial System of TrialRole of the Judge Judges take an active approach/role in the examination of a case. Judge determines which evidence/witnesses need to be examined, the issues to be contested and
procedures. Conducts questioning of witnesses. Investigates facts and judge is supposed to unearth the truth. Ensures rules of e+p are followed. Decision maker (final outcome).
Role of the Parties Not in complete control of the case, left to the judge. Responds to the directions of the court in presenting arguments to the court.
Role of legal representation Much less reliance on legal rep as the judge has an extensive role. They assist judge in determining the truth through investigation and questioning of witnesses.
Rules of evidence and procedure May allow for adjournments for further investigation by the court. Much more reliance on documentary evidence collected by judge in a dosier. Judge seeks evidence to find truth and can bring new info at any time. Allows for character/past conviction evidence, as it allows judge to understand the accused. Heresay evidence is admissible, same with illegally obtained evidence. Witnesses can elaborate and describe events/give own version of facts uninterrupted. Judge collects evidence.
Burden of standard of proof No burden/standard of proof. Judge is responsible for finding the truth and presenting evidence.
Role of the judgeAdversary Inquisitorial
Case conducted before an independent and impartial adjudicator.
Judge decides questions of law and procedure. Judge asks questions only to clarify points raised
in an examination or cross-examination by the parties.
Has nothing to do with preparation and presentation of the case.
Take a passive approach. Ensures rules of e+p are followed. Decision maker (final outcome).
Judges take an active approach/role in the examination of a case.
Judge determines which evidence/witnesses need to be examined, the issues to be contested and procedures.
Conducts questioning of witnesses. Investigates facts and judge is supposed to
unearth the truth. Ensures rules of e+p are followed. Decision maker (final outcome).
Role of the partiesAdversary Inquisitorial
Responsible for preparation and presentation of the case and gathering of evidence.
Determine the issues to be contested and the witnesses to be called.
Decide whether to begin proceedings. Bring forward evidence to support case (in criminal,
prosecution must bring all whether it supports case or not). Mode of trial: Whether heard by a judge and jury, judge
alone or magistrate.
Not in complete control of the case, left to the judge.
Responds to the directions of the court in presenting arguments to the court.
Role of legal representativesAdversary Inquisitorial
Represent the interests of their client. Prepare and present client’s case to the court. Necessary due to strict/complex rules of e+p so
best case can be presented.
Much less reliance on legal rep as the judge has an extensive role.
They assist judge in determining the truth through investigation and questioning of witnesses.
TrialAdversary Inquisitorial
Conducted as a single, continuous trial. May allow for adjournments for further investigation by the court.
Burden/standard of proofAdversary Inquisitorial
Party initiating legal actions has burden of proof.
Have a standard of proof that their evidence must reach in order to win the case.
No burden/standard of proof. Judge is responsible for finding the truth and
presenting evidence.
Rules of evidence and procedureAdversary Inquisitorial
Strict rules of evidence and procedure. Strong reliance of oral evidence. Admissible evidence includes:- Oral evidence.- Affidavits.- Objects.- Circumstantial evidence. Inadmissible evidence includes:- Heresay and irrelevant info.- Opinion (unless expert).- Illegally obtained.- Prior convictions/evidence of character. Parties collect evidence. Witnesses must respond to direct questions (no
elaborations).
May allow for adjournments for further investigation by the court.
Much more reliance on documentary evidence collected by judge in a dosier.
Judge seeks evidence to find truth and can bring new info at any time.
Allows for character/past conviction evidence, as it allows judge to understand the accused.
Heresay evidence is admissible, same with illegally obtained evidence.
Witnesses can elaborate and describe events/give own version of facts uninterrupted.
Judge collects evidence.
Key
Kno
wle
dge
5:Po
ssib
le re
form
s to
the
adve
rsar
y sy
stem
of t
rial
Possible reforms to the adversary systemRelaxation of rules of evidence While they’re there to protect parties to a case from irrelevant/improperly obtained
evidence, could be relaxed. This could allow other useful info that could affect outcome of trial eg. Heresay evidence.
Gather use of written, rather than oral evidence Written statements are used already in committal hearings, savings the time and
inconvenience to witnesses and legal system. Further use in trials eg. Medical and police reports could further save time and money. A disadvantage of this is that the evidence couldn’t be tested by the other party under cross-
exam.
Increased role for the judges Current powers could be extended further to become more involved in pre-trial and trial
procedures eg. Preliminary/pre-trial conference and asking witness’s questions. An ↑ role would allow judge to utilise their experience, expertise and skills.
Making legal rep more attainable One of the biggest problems is reliance on legal rep which is expensive. ↑ Availability of legal aid through ↑ govt. funding would result in ↑ access to legal rep ∴
improving the prep and presentation of their case in court.
Effective operation of the adversary systemFair and unbiased hearing
Helps Hinders Rules of evidence and procedure are followed and
apply to both parties ∴ treated equally. Any evidence that may unfairly influence the
judge eg. A prior conviction is inadmissible. The existence of an impartial and unbiased
adjudicator helps to uphold fairness.
Certain categories of evidence being inadmissible may result in useful evidence not helping to find truth.
Role as judge/magistrate as the decider of POL/fact may result in unfair hearing if judge has preconceived ideas on a topic.
Timely resolution of disputesHelps Hinders
Heard as 1 continuous event ∴ no breaks to gather more evidence (minimise delays).
Pre-trial procedures eg. Committal hearings/directions hearings speed up process as they identify/resolve some issues before.
Time limits placed at many stages of the criminal pre-trial process by legislation ∴ timely.
Lengthy pre-trial procedures, delays in getting a court to trial and ↑ litigation.
Lack of sufficient court resources causes backlog of cases ∴ ↓ access.
Effective accessHelps Hinders
If a party feels they have been dealt with unfairly, can establish grounds to appeal in a higher court.
Parties unable to afford legal rep can apply for legal aid.
Some parties may be unaware of their legal rights/existence of bodies to help them with case prep and presentation.
Accused may be ineligible for legal aid but can’t afford legal rep without significant financial difficulty.
Cost may deter someone from filing a case.
Key
Kno
wle
dge
6:C
rimin
al p
re-tr
ial p
roce
dure
s and
thei
r pur
pose
s, in
clud
ing
bail
and
rem
and
and
com
mitt
al h
earin
gsCriminal and civil procedure
Criminal Pre-Trial ProceduresCrime: Can be described as an act or omission that is against the law, harmful to an individual or society as a whole and punishable by law.
Police: Investigate the alleged crime, charge the accused and can grant bail.
O.P.P: Where the official prosecution comes from.
Presumption of innocence: Basic right of the accused.
Burden of proof: Lies with the prosecution, must prove guilt.
Standard of proof: Level of proof required to find the accused guilty ‘beyond reasonable doubt.’
Double jeopardy: The accused found not guilty can’t be recharged of the same crime, unless substantial and compelling new evidence arises in relation to a serious offence.
Bail Refers to the situation in which a person charged with a criminal offence is released from custody into
society until the time of their court hearing or trial. Generally given to the accused awaiting trial due to the presumption of innocence. Conditions may be attached such as checking in at a police station, not leaving the state etc.
Surety: A person who undertakes the responsibility to ensure the court case is attended by the accused. Payment of a sum of money by the surety is required with the promise.
Returns when they attend the trial. Non-attendance means money is forfeited unless surety shows they did all they could.
Bail can be granted by a police officer, Magistrate at a bail hearing, bail justice and a judge. Purpose of bail is to uphold the presumption of innocence, as those accused have not yet been found
guilty of an offence, and to allow the accused time to prepare their case. Bail can be refused if:- The accused if charged with murder.- Accused is already in custody for another offence.- Believed that the accused is likely to not show up for the trial.- Believed that the accused may re-offend before their trial.
Remand This is the placement of the accused in custody until trial. Removes the person’s right to free movement, privacy, communication and association. This impacts on the mental health of the accused, financial hardship on the family, reputation of the
accused and family members. Access to legal reps to prepare case is limited therefore best case may not be prepared due to
communication restrictions. Purpose of remand is to protect society by retaining accused people in custody who the court believes
may cause further harm to society through reoffending, harming others, tampering with evidence or may not show up at the trial.
Committal hearings
Committal mention hearings A committal mention hearing is conducted at the very start of proceedings, where the magistrate is
informed of the number of witnesses to be called and the anticipated length of the hearing. The defence also may be required to justify why particular witnesses are important to the case. A date is then set for the committal hearing that is suitable for all parties. Defendant may wish to plead guilty to some or all of the charges, in which case he or she is directed to stand trial for sentencing in the appropriate court. In some cases, where the accused pleads guilty, depending on the nature of the charges, the
Magistrates' Court can hear submission and pass sentence at that stage of proceedings.
Purpose of committal hearings Designed to discontinue cases where the evidence is not considered strong enough to support a
guilty verdict by a jury in a higher court (prima facie case). The prosecution must present all of its evidence while the accused person is not required to respond,
although the defence is allowed to cross-examine prosecution witnesses. 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. They provide for greater efficiency in the operation of the County and Supreme courts because time
is not taken hearing cases where the prosecution evidence is insufficient to support a conviction.
Types The traditional method, which relies on oral evidence being given under oath by prosecution witnesses.
Must be used in a murder case. The hand-up brief method, where evidence is given through the delivery of sworn written statements.- This is particularly important in sexual assault matters, where the victim should not be exposed to
rigorous questioning by defence counsel at such an early stage of the case.
Hand up brief At least 14 days prior to committal hearing prosecution will notify the defence that it’s using a hand up
brief. Documents served on defence (sworn statement/evidence). At least 5 days prior to committal hearing, defence notifies prosecution that they wish to cross examine
some witnesses. If the defence does not intend undertaking cross-examination, the committal will proceed by way of
depositions (sworn written statements) being presented to the magistrate, who will then decide whether or not the defendant should be committed for trial in a higher court.
Outcomes of a committal hearing If the defendant is committed to stand trial in the County or Supreme courts, at the conclusion of the
committal hearing, all evidence is forwarded to the OPP, which refers the case to a Crown prosecutor for the preparation of a presentment. The presentment is the official written charge against the accused, which sets out the alleged offences considered at the committal hearing.
If evidence is insufficient to support a guilty verdict by a jury in a higher court, the magistrate will release the defendant.
A committal is not a trial but a hearing to test the strength of evidence. The fact that a person has been presented for a committal hearing does not prevent identical charges
being laid in the future.
Key Knowledge 7:General purposes of criminal sanctions
Criminal SanctionsSanction: Court imposed penalty when the accused has been found guilty of a crime.
The Sentencing Act guides judges in Victoria when sentencing. Imprisonment is said to be the last resort. The judge must consider a number of factors when sentencing. These all ensure that the
punishment fit the crime. Must be a ‘just’ punishment.- Remorse shown.- Plea, what and when.- Seriousness of the offence.- Prior convictions.- Mitigating circumstances.- Victim impact statement.
Purpose of sanctions
Just punishment. Protecting the community. Deterrence, general (community) and specific (offender). Rehabilitation - Big focus, reduces recidivism, decreases crime rates and makes society safer. Denunciation.
Key Knowledge 8:An overview of three types of sanctions and their specific purpose
Sanctions and FinesFines Most common penalty imposed for any offence. A fine imposes a monetary penalty on an offender. A court can impose a fine either with or without
recording a conviction. In determining the amount of the fine, the court must take into consideration, among other things, the
financial circumstances of the offender. Usually an Act sets a max fine or penalty. Fines are expressed as a number of penalty units.
Community Correction Order (CCOs) A CCO is a flexible order served in the community. The order can also include up to three months in jail or
a fine. From early 2012, the CCO replaced a number of sentencing orders, such as intensive correction orders
and community based orders. A CCO can be imposed for a max of 2 years. In the higher courts, a CCO can be imposed for up to the
statutory max term of imprisonment for that offence. Offenders sentenced to a CCO must abide by basic conditions, such as not leaving Victoria without
permission and abiding by any order of the secretary of the Dept. of Justice. An offender who breaches their CCO may be resentenced for the original offence and face an additional 3
months imprisonment/fine of 30 penalty units. Each CCO will also include at least 1 other ‘optional’ condition chosen according to the purposes of
sentencing for that offender and that offence. Court may fix a part of the total length of the CCO as an ‘intensive compliance period’ during which 1 or
more of the conditions must be met. Optional conditions that can be attached for all/part of a CCO are:- Undertake medical treatment/rehab.- Remain alcohol/drug free.- Complete unpaid community work up to a total of 600 hours.- Abide by a curfew, remaining at a specified place for 2-12 hours/day.
Imprisonment Imprisonment removes an offender from society and denies their liberty. This is considered to be the most secure sanction. The Sentencing Act recognises that imprisonment should be used as a last resort. Prison is seen as a way to protect the community as well as punish the offender. Some would argue that
imprisonment also acts as a deterrent. Programs offered within prison aim to provide rehab to offenders. Sentencing Act 1991 establishes levels of imprisonment. Purposes of imprisonment:- Deterrence.- Rehab programs.- Protects community.
Types of prison sentencesConcurrent sentences
Means that where the offender has committed more than one offence, the sentence for each offence can be served at the same time.
Eg. 5+2+1 = 5 years
Cumulative sentences Usually applied only for serious offences and if the offender has a long history of offending. A cumulative sentence means that each term of imprisonment is added together to form a total period of
imprisonment. Eg. 5+2+1 = 8 years
Serious offenders An offender who has repeatedly committed arson, or a serious drug/sexual offence. When sentencing, the court will consider the protection of the community from the offender as the
principle purpose for which the sentence is imposed therefore court may impose longer.
Serious sex offenders Must serve multiple jail terms collectively, except in exceptional circumstances. A serious sex offender is defined as anyone sentenced to jail for 2 or more sex offences.
Indefinite detentions Can be imposed for offences such as murder, manslaughter or sex offences. The offenders serve their full sentence, after which their sentence is reviewed by a judge. If a judge decides at this stage that the offender is still dangerous, the offender will be returned to jail for
another 3 years. After this time has elapsed the case is reviewed once more.
Parole: Involves supervised, conditional release from jail.
Often min/max term set for sentences. When min term is reached, inmate comes up for parole.
Parole board will meet and listen to evidence to see if inmate is ready to be released. If they are they will be on parole till their max sentence. Eg. Min term (4) + parole (2) = max term (6).
Effective operation of criminal procedures
Fair and unbiased hearing
Helps HindersBail
Presumption of innocence, gives them chance to prepare case.Committal hearings
Learn prosecution’s case against them ∴ equal footing.Police investigation
Police powers eg. Warrants balanced with right to silence, contact legal rep etc.Role of judge
Independent and impartial ∴ unbiased.Rules of evidence and procedure
Examine each-others witnesses, equal treatment, protect accused.Consistency in sentencing
Independent, no pre-conceived ideas. Only consider the facts of the case.Koori court
Culturally sensitive outcome.
Bail May not have bail granted, if granted may
danger community/reoffend.Resources
Accused person has far less expertise than police when gathering evidence ∴ unequal footing.Trial procedures
May be confusing for the accused, especially if they don’t have legal rep.Bias
Media coverage of events leading up to trial may persuade jury.
Some jury members may hold pre-conceived ideas.
Timely resolution of disputesHelps Hinders
Committal hearings Ensures people who have been accused don’t have to wait a
long time for a trial when there is insufficient evidence anyway.
No backlog of cases that aren’t likely to succeed.Time limits
The Criminal Procedure Act 2009 (Vic) sets time limits at various stages.
Eg. A filing hearing must be within 7 days of a charge sheet being filed if the accused has been arrested.Directions hearings
Designed to speed up process of getting accused to trial and to ↓ length of trial by having some issues sorted out previously.
Collection Difficulties collecting evidence/locating
witnesses, uncooperative witnesses.Committal hearings
Can add to delays.Court workload
↑ no. of criminal cases being heard. Particularly County and SC.
Lack of sufficient court resources Not kept pace with the growth in no. of
cases, causing problems like cases being dismissed as there aren’t enough police prosecutors.
Effective accessHelps Hinders
Courts Courts in metropolitan and regional areas.
Geography Distance and transport can affect access face to face legal
Appeals Party can appeal if they’re unsatisfied, more
avenues.Legal aid
Provides legal rep to those who can’t afford it and may not have pursued case without it.
services.Awareness of legal rights
May be unaware of the legal bodies available to provide advice.Financial constraints
High cost of legal rep. Many people who apply for VLA don’t receive assistance.
Key Knowledge 9:Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings, and the purposes of these procedures
Civil procedureLitigation: Refers to a civil action or proceeding. Plaintiff sues the defendant.
Aiming to reach an out of court settlement One of main aims for parties to a civil dispute. Can happen if defendant offers an acceptable amount of money to compensate. Can settle ADR. Can be achieved at any time.
OR plaintiff abandons claim- May be more expensive to continue than compensation would be.- Realise case is frivolous.- Defendant may prolong case ∴ plaintiff gives up.- Defendant may not have money anyway (straw-person, no assets).
Letter of demandNote: Doesn’t start litigation, it’s a warning.
First step involved in resolving a civil dispute. Plaintiff sends to defendant. Outlines alleged breach of rights and declares what action the defendant needs to take to avoid legal
action. Eg. If defamatory statements were made, may need a retraction and apology. Defendant has 14 days to respond. If no out of court settlement can be reached, plaintiff may commence legal proceedings.
PleadingsThis stage in the civil pre-trial process involves the exchange of written documents stating the case details, including claims, defences, remedies sought and counter claims. Stages include: Writ. Statement of claim. Notice of appearance. Defence. Counterclaim (if made). Reply.
Purpose of pleadings Exchange of documents at the pleadings stage provides the parties and the court with important info:- Precise nature of the claims.- Helps to clarify the details/main issues in the case.- Provides a written record of the proceedings to date. Increases chance of out of court settlement. If not, ensures each party has been given some knowledge of the opposing parties case so they can
prepare for trial.
Further and better particulars The particulars/set of facts each party has outlined during the pleadings stage in either statement of
claim, defence or counterclaim may not be enough to clarify facts of the case. May be requested by either party
Writ Legal proceedings against the defendant usually begin with a writ. Served on the defendant and lodged at the court. Informs the defendant that civil proceedings are being taken against them. Legal proceedings in the SC may also begin by lodging an originating motion instead of a writ when
there will be no likely dispute to the facts of the case.
Statement of claim Usually filed at the court at the same time as the writ is often stapled to it. Clearly states the claims made by the plaintiff against the defendant and the remedy sought. Summarise material facts of the case (including providing further details known as particulars) and not
the evidence that will be used to prove those facts.
Notice of appearance If a writ is services on a defendant, he or she has 10 days to respond by filing a notice of appearance
with the court either personally or through legal rep. Acknowledges writ has been received and defendant knows legal proceedings have begun and the
defendant intends to defend claim. Important this is done on time otherwise plaintiff can obtain default judgement without informing the
defendant further.
Default judgement: Plaintiff assumes the defendant is not defending the claim.
Defence Defendant files a statement of defence to the plaintiff and provides further info about defences. Must be in summary form and deal with material facts of the case. Either denies claims or admits claims but provides an explanation for actions that should be considered
when assessing the defendant’s behaviour. If defendant denies the claim, it’s up to the plaintiff to prove this claim.
Counterclaim Defendant can make a claim against the defendant. Eg. Mc Fadzean vs. Construction, Forestry, Mining and Energy Union (2004) VSC 289 involved
counterclaim.
Reply After plaintiff receives statement of defence, they may be required to make a reply or written response
indicating if they wish to agree with the defendant regarding a particular issue or confirm facts. If a counterclaim has been made by the defendant, the plaintiff will usually lodge a defence along with
the reply. Consequences for the plaintiff if they don’t include a defence to the counterclaim eg. Defendant could be
given default judgement on counterclaim.
DiscoveryDiscovery: A stage where both parties have the opportunity to inspect and exchange any of the opposing party’s documents and additional info, and ask questions (interrogatories) of the opposing party to establish facts of the case. Can request any of the following:
Photos, videos, audiotapes and discs. Plans. Letters.
Electronic info stored on a computer. Maps. Contracts and receipts.
Purpose of discovery Assist parties to prepare for trial. Facilitate the settlements of disputes. ↓ the time and expense associated with the trial and settlement of the dispute as documentary evidence
has already been seen. Narrows down issues in dispute. Prevents either party from being taken by surprise by evidence at trial. Ensures the case is determined on merit rather than tactics.
Directions hearings Held between the parties before a judge to identify the main issues in a case and give directions to the
parties regarding how their action should continue. Used to set a time frame for the decision of the trial. Court may refer a matter to ADR with/without party consent. Aim is to ↓ time taken for the process before and during trial, ∴ cheaper, quicker and more efficient
resolution.
Effective operation of civil proceduresFair and unbiased hearing
Helps HindersPre-trial procedures
Parties know each other’s case and have access to info.
↓ Element of surprise during trial. Equal footing.
Role of the judge Unbiased.
Directions hearings Aim to streamline processes and help
parties understand different stages and what they need to do.Jury selection
No prior knowledge, unbiased verdict.
Pre-trial procedures Complex ∴ disadvantage to someone with
no legal rep (don’t understand, no equal footing).Different cultural backgrounds
Defendants may be confused by the process and the adversary system.Inconsistency in damages
If jury decides amount, may be very different from one case to another ∴ unfair on defendant.
Timely resolution of disputesHelps Hinders
Pleadings and discovery Opportunity to see case against them ∴ may
not pursue. Could lead to out-of-court settlement. If proceeds to trial may ↓ time spent as some
issues are already resolved.Directions hearing and pre-trial conferences
Clarifying issues so they’re not brought up in court.
Parties know others strengths ∴ may choose to solve out of court.
Strict time limits. About 75% of civil disputes are settled at
directions hearing/pre-trial conferences.
Failure to take the initial steps Delays often caused by not getting legal advice
about an occurrence. May be because of unawareness of rights/how
to pursue them, or fearful of the costs and outcome of the case.Increased litigation
↑ number of civil cases being brought to the courts ∴ delays.
Effective access
Helps HindersCourt system
Each court has specific jurisdiction ∴ suitable and appropriate courts to deal with disputes.ADRs and tribunals
Deals with wide range of cases, more services available.Contingency based legal rep
Helps people with genuine claims go to court. ‘No win no pay,’ if lose = taken out of damages.Litigation funding companies
Can cover costs for individuals/small business. If win, take 33-66%. If lose, pay other parties legal costs.
Court system Courts/lawyers are expensive.
Complexity of pre-trial procedures Require legal rep ∴ unrepresented parties find
legal system difficult.Lack of knowledge of ADRs and tribunals
May not have easy access because they don’t know they exist or their powers to solve cases.Delays
Deters people from commencing proceedings as they’re aware of the long process.
Key Knowledge 10:The purpose of civil remedies
Civil remedies Aim of taking civil action is for the plaintiff to seek a remedy that will restore them to their
original position prior to the breach of rights and compensate for loses. Compensation is often the only remedy available to plaintiffs who can’t be returned to their
original position. Most common type is damages/awarding a sum of money. In a defamation care, formal apology may be sought as well. In a breach of contract case, defendant may need to carry out contract.
Key Knowledge 11:Types of civil Types of damages
remedies, including damages and injunctions
Compensatory damagesCompensatory damages: Sum of money paid by the defendant to the plaintiff to recompense and reimburse for losses suffered.
Specific For items that can be accurately measured in monetary terms Eg. Medical costs (paid in future and projected loss of income). Provide receipts for evidence.
General For items that can’t be accurately measured in monetary terms Eg. Pain and suffering.
Exemplary damages (punitive) Awarded to plaintiff in circumstances where the court wishes to make an example of the
defendant and deter others from committing the same civil wrong.
Aggravated damages Awarded if a defendant shows reckless disregard for the plaintiffs feelings. The court not only
looks at the civil wrong but also at the manner in which the defendant infringed the plaintiff’s rights.
Nominal damages Are very small amounts of money and are usually awarded in cases where the plaintiff
pursued a civil action to prove that the defendant’s actions were legally wrong, rather than to receive a large payout.
Contemptuous damages Involves small amounts of money. The court acknowledges the plaintiffs rights have been infringed but has little sympathy for
the plaintiff for taking legal action over the matter.
Restrictions on damage Legislation sets limitation periods for a person to commence court proceedings for damages
for personal injuries. ‘Limitations of Actions Act 1958’ states that it must not be after 3 years from the incident. Work injury claims/transport accident injuries have different time limits.
Non-financial civil remediesInjunction: A court order requiring the defendant to either undertake, or refrain from undertaking, actions to rectify or prevent a breach of rights.
Mandatory injunction: Compels a party to undertake a specific action eg. Court ordering the defendant to remove a car that was dumped on another person’s property
Restrictive injunction: Restrains a party from undertaking an action eg. An order to stop a current affairs program broadcasting a particular story.
Perpetual injunctions: Permanent or ongoing injunctions.
Interim injunctions: Compel or restrain the defendant’s behaviour for a limited period.Order of specific performance
Order of specific performance: Compels a defendant to carry out the terms of the contract. It’s not an injunction. Only for a contract.
Key Knowledge 12:The role of juries, and factors that influence their composition
The jury systemWhen juries are used
Criminal cases where accused is pleading not guilty and is being tried for an indictable offence in the County or Supreme Court (compulsory).
Civil cases where either party requests it (optional). Court may refuse jury in complex cases. Tend to only be for more serious cases.
Role of the jury Decider of facts in the case before them. Select a foreperson at the beginning of trial who will help coordinate the deliberations
undertaken by the jury, however they carry no extra influence. Assess facts of the case. Listen to, understand, remember and analyse all evidence. Follow instructions given by judge on rules of e+p and application of law. Put aside any prejudices or pre-conceived ideas. Prohibited from undertaking their own investigations and enquires of the case. In a criminal trial, must decide whether the accused is guilty/not guilty beyond reasonable
doubt. In a civil trial, must find for either the plaintiff or defendant on the balance of probabilities. A unanimous verdict is desirable, but majority verdict may be allowed.
Factors that influence the composition of juries Influenced by the jury selection and empanelment process. Involves random selection of jurors. The Juries Act 2000 (Vic) sets out the stages and procedures to be followed when selecting
and empanelling a jury.
Key Knowledge 13:Strengths and
Strengths and weaknesses of the jury systemStrengths Weaknesses
Cross section of the people Not truly cross-section of the people
weaknesses of the jury system
A trial by jury represents trials by one's peers.
More likely to accept verdict. Jury able to assess the case according to the
standards of general community.
Many people are disqualified, ineligible or excused.
Decision may not reflect community values.
Involves the general community Part of everybody's civic duty as citizens to
serve as jury. Increase peoples knowledge of legal
system. Therefore creates confidence in the legal
system.
Involves general community Jury might experience difficulty, understand
complicated evidence (forensics, medical, financial data).
Unable to cope with the sheer volume of the evidence.
Reflect community values Cross section of community can bring common
sense approach to the court, rather decision based purely on legalistic term
Jury can follow the law if they agree or ignore it if they disagree as they don't have to give decision
May not necessarily reflect community values
No way of telling what reason was used in reaching their decision as they don't have to give reason.
Therefore not possible to know if law was followed or applied correctly.
Safeguard against misuse of power Jury act as a buffer between the parties to
a case and the state. State is responsible for prosecution in
criminal case, but jury decides guilt or innocence.
State cannot persecute political opponents.
Increase confidence in the system.
Increase cost and delays Delays cause by explaining legal terms to jury. Selecting jury. Increase cost because they have to be paid,
trial likely to be longer.
Key Knowledge 14:Reforms and alternatives to the jury system
Reforms and alternatives to the jury systemActual reforms (changes)1. Since the passage of the Courts Legislation Amendment (Juries and Other Matters) Act 2008
(Vic) it’s an offence for a juror to undertake an enquiry about the case they are hearing or the parties involved.
- Ensured jurors decision is based solely on evidence heard and seen in court.- Making an enquiry includes using internet for research, viewing/inspecting object relevant to
trial, or asking another person to investigate.- Penalty for doing so is around $14,000.
Suggested reforms1. Providing more assistance and education to the jury- Preliminary training in court processes and procedures, evidentiary rules etc.- Would help the jury to perform this important task.
2. Compel juries to give reasons for their decisions- Make juries more accountable for their verdicts and assist parties in understanding why they
won/lost their case.- Could also open up further grounds for appeal if the jury misapplied the law to the facts.
3. Specialist or professional foreperson- Could assist the jury throughout the trial with any questions relating to the court system and
procedures ∴ ↑ their understanding.- However such a person might influence the rest of the jury.
Suggested alternatives (abolishment)1. Professional jurors- Would do the same role but would be employed full time.- Would be familiar with court procedures.- However this provides potential for jurors to no longer be made up of common people with
ordinary values as they become a part of the legal system.
2. Specialist jurors- Would be made up of experts in a particular field warranted by the type of case eg. Medical
experts.- Able to understand the complex, specialised evidence in the case.- Could argue that they’re not representative of the community or their values.
Would be expensive to pay a panel of experts to perform jury service.
Key Knowledge 15:Problems and difficulties faced by individuals in using the legal system
Key Knowledge 16:Recent changes and recommendations for change in the legal system designed to enhance its effective operation.
Effective operation of the jury systemFair and unbiased hearing
Helps Hinders Ineligibility/disqualification ensures only
people who have no legal experience serve ∴ unbiased. Jurors must say if they know one of the
parties and are they excused ∴ unbiased. Challenge process allows parties to
remove any jurors who they believe may be biased.
Jurors may be influenced by media or may not be able to put aside pre-conceived ideas.
Some groups eg. Aborigines are under-rep in the jury system ∴ they’re not being tried by their peers.
Jurors may have difficulty understanding court processes ∴ may not give a fair verdict.
Timely resolution of disputesHelps Hinders
None. Empanelment takes time. If questions of law needed to be asked eg. if
evidence is admissible in the trial, jurors must leave court room and come back in ∴ ↑ time.
Trials usually take longer with a jury as legal counsel reiterates points.
Jury deliberation takes longer than judge. If outcome is a mistrial or hung jury, then
result is a re-trial and more court time.
Effective accessHelps Hinders
In a criminal trial, cost of jury is borne by the state ∴ tax-payers (not deterring).
In a civil case, party that requests jury must pay.
This may deter someone from using a jury. Eg. County court fees: $560 first day, $408
days 2-6 and $810 a day after 7 days.
