Chapter Thirteen Flashcards
Define Plea-bargaining
A late plea of guilt that is made by the defendant in exchange for a negotiated reduced sentence.
Define Court of Appeal
The introduction of a court of appeal separate from the supreme court which exclusively deal with appeals from lower courts.
Define State administrative Tribunal
A recently introduced court which groups together over forty boards and tribunals involving human rights, infrastructure development and commercial issues.
Define Alternative Dispute Resolution
Any dispute resolution process that does not involve the use of the traditional court structure.
Define Mediation
A type of alternate dispute resolution involving a third party mediator who helps both parties define the dispute and what they are looking to get out of the dispute, and then trying to issue a compromise for the two parties.
Define Mandated Mediation
Some courts have incorporated the use of mediation to the point where it is required for parties to undergo mediation before the trial can begin. In the family court for instance, in all divorce cases both parties are required to have mediation sessions before the case begins. Additionally, almost all civil disputes in the WA supreme court are required to undergo mediation before they go to trial.
Define Pre-trial Diversion
An alternative to formal trial process which involves the person who has committed the crime being issued a number of conditions by the court. If all these conditions are filled, the charges against this person will be dropped. Diversion is most often used in cases which involve juveniles.
Define Crime Prevention Strategies
Any initiative that tries to improve the condition of life for young people and aims to develop more trust between youths and law enforcement agencies. Crime prevention programs can also aim to reduce the level of recidivism among young people.
Define Decriminalization
The process of removing a certain offence from the law and reducing the severity of committing certain offences.
Define De-institutionalization
The process of removing institutions which group certain people together, for example orphanages have been completely abolished, mental asylums are far fewer and juvenile detention centres have been avoided more by the courts.
Define Police Cautions
A form of diversion that is undertook by the police for young people who have committed certain offences. Police cautions can either be formal or informal, however all cautions involve the youth undergoing a formal interview process with a police officer at the station often in accompany with an adult. The youth is the usually assigned some community service or other programs.
Define Informal Police Cautions
Police cautions that are not put on record.
Define Formal Police Cautions
Police cautions which are put on an official record.
Define Family Group Conferencing
Another form of diversion, where the offender admits guilt and is required to attend a formal conference where the police, conference convener, victim and family of the victim and the offender and their family are required to attend. All get a chance to speak, and the sanctions for the offender are discussed with all.
Define Mention Court
Used in WA criminal court proceedings, it replaced preliminary hearings as a form of faster more efficient court procedure. Mention courts ensure that the accused is fully informed of what they are being accused of, the prosecution reveals all evidence and the defendant reveals the line of argument in their defence.
Define Problem-solving courts
Alternative courts that are set up to deal with specific issues, such as the drug courts, family violence courts, mental health courts and indigenous affairs courts.
Define Indigenous courts
Courts established to deal exclusively with indigenous people, which are community circle courts based on restorative justice.
Define Community Circle courts
Courts that include members of the victims and defendant’s family as well as any other relevant community members. Community members are responsible for determining the sanctions against the defendant.
Define Restorative justice
Justice that aims to remedy the damage that has been done to the community by the accused and restore the relationship between the accused and the rest of the community.
Define Prima facie case
The apparent nature of a case or the first look at a case.
Define Mandatory Sentencing
Mandatory minimum sentences that are imposed upon the judiciary by the legislative.
Identify an argument for and against mandatory sentencing
An argument against mandatory sentencing is that imprisonment and increased sentences increases the strain on the prison system and increases the rate of recidivism. This is evident in states such as the NT which have some of the toughest mandatory sentencing laws in the country and one of the highest crime rates.
An argument for mandatory is that if the community wishes for tougher sentences against certain crimes then the judiciary should follow through with that, since laws are supposed to be a written form of societies values.
Identify two strengths of the inquisitorial system and two weaknesses
Strengths:
• The inquisitorial system decreases the role that lawyers play, which in turn decreases the influence of the wealth of an individual on the outcome of the court case.
• Rules of evidence are far less strict which means that all relevant evidence can be submitted into court, and since the inquisitor is responsible for collecting evidence all relevant evidence is submitted.
Weaknesses
• The fact that the inquisitor is responsible for collecting evidence can introduce a certain amount of bias into the system, especially when some evidence might be particularly confronting
• An individual does not have the right to argue their own case, and they also do not have the right to not press charges if they don’t want to.
Identify some suggested reforms for Civil Law
Pre-Trial
• Reducing the time and required steps for pretrial procedures
• Allowing the judge to adopt an inquisitorial role and examine all the evidence before the trial
Trial
• Introducing expert panels rather than juries
• Reducing the role of juries or allowing the judge to guide the juries
• Using witness statements instead of oral evidence
Identify some suggested reforms for Criminal Law
Pre-trial
• Abolition of the right for the accused to remain silent
• Reforms to jury selection processes
Trial
• Abolition of rules of evidence including hearsay
• Greater use of written testimonies
• Greater role of the judge to question witnesses
Post-trial
• Providing a greater range of sentencing options to allow for people of different ages and cultures
Identify the Strengths and Weaknesses of Mediation as opposed to going to formal trial
Strengths:
• Faster and generally less costly
• Can remain confidential from the public
• Is less harmful to the relationship between the two parties
• Mediators can also be experiences in certain areas
• Different types of remedies such as an apology can be issued
Weaknesses:
• Decisions made through ADR does not add to existing precedence
• Can sometimes be very expensive
List reasons as to why an offence might be decimalized
- Changing social values might find some offences more acceptable than they were previously
- Certain offences may be unfairly targeting a specific minority group
- Offences that do not harm other people can be decriminalised since it is likely that people will do it anyway
- Enforcing some laws may do more harm than good, prostitution rates for example have historically not fallen even though it has been enforced
