Courts, Judges and Lawyers Flashcards
The Rule of Law
All are equal before the law, everyone should be able to understand the law and everyone should be able to access a court to enforce their legal rights/have their legal rights upheld.
Lord Bingham
“An unenforceable right or claim is of little value to anyone”
Chief Justice Sian Elias
“I think there is no room for complacency here and that the law schools and profession need to be vigilant”
The Civil Jurisdiction
What are some of the advantages and disadvantages of the different types of dispute resolution mechanisms?
Criminal Jurisdiction
Nature of offence determines nature of sentence and whether District or High Court.
Civil Jurisdiction
Usually determined by quantum - how much money is involved. Depending on how your claim is worth depends on which Court you go to.
Litigation
Process where a judge or other decision maker decides the outcome of the case.
Disputes Tribunal
Cases where up to $30,000 is claimed.
District Court
Cases where up to $350,000 is claimed.
High Court
Cases where over $350,000 is claimed.
Family Court
Matters that are in family law statutes.
Employment Jurisdiction
The statutory aim: speedy and low level resolution of disputes happening at work. Mediation etc.
Reality?
It is no longer cheap, it costs a fortune and this makes it even less accessible. It also has an 18 month backlog.
Chief Judge Inglis
There is a diminished access to justice, so put people off seeking help because it is too expensive and takes far too long.
Disputes Tribunal
Avoids the expense of lawyers by barring lawyers, aims to be cheap and efficient. First part of the process is mediation, followed by adjunction.
Tenancy Tribunal
Lawyers barred except in very limited circumstances.
Negotiation
Almost always some form of negotiation is involved in dispute resolution. All lawyers need to negotiate.
Mediation
A very brief telephone call through an in person day long session. Very common method.
Rule of Law: Lawyer’s Role
Provision of legal services, they are the guardians that uphold the Rule of Law.
Criminal Legal Assistance
Criminal Legal Aid, Public Defence System, Police Detention Service, Duty Lawyer Scheme.
Pro Bono
“For the public good” - Providing a lawyer and not expecting payment.
The Justice Gap
Legal aid thresholds are low and there are few practitioners offering legal aid services. There is a very small amount of free community assistance.
What is criminal law?
Police, Courts and even Department of Corrections.
Warnings and Diversion
In 2009, formal warning system was introduced - since then diversions and discharge without convictions have dropped.
Youth - Family group conferences
Used in youth offending - formulate alternatives to prosecution.
Right to a Lawyer
While specifically expressed as the rights of persons changed, these minimum rights also protect the wider societal interest in ensuring the integrity of the criminal process and the innocent are not wrongfully convicted.
Judicial Practice Note on Police Questioning.
Obligation to advise that legal advice may be available without charge under the Police Detention Legal Assistance Scheme is new. Everyone has the right to remain silent however.
Prosecution
Innocent until proven guilty.
Juries
Very uncommon in civil trials these days, ACC takes care of that now. Very common in criminal trials.
What do juries do?
They find the facts and then decide whether the accused is guilty of the offence or not.
Importance of Juries
Jury service is an opportunity for members of the public to be directly involved in the administration of justice, ensuring public participation in the Rule of Law.
Prosecutor
If people don’t have faith that the law will resolve disputes, they may start to take it into their own hands. The role of the prosecutor is a civic duty.
Prosecution
Obtaining a conviction is a consequence, but not the purpose of a prosecution. It is not about zealous advocacy. They must ensure a fair trial.
Defence Lawyer
Puts the prosecution to proof. They are integral to a functioning democratic society and to a robust and fair criminal justice system. They protect everyones right that they are innocent until proven guilty.
Criminal Justice System
The way we deal with offenders has a ripple that effects everyone in the community. If your rehabilitation was poor, your more likely to reoffend.
Chief DC Judge Taumaunu
Victims feel as though they haven’t fully participated in the proceedings that relate to them, in short they don’t feel like it was a fair trial and they didn’t get full access to justice.
Youth Court
Young people and young Maori in particular, were being incarcerated at staggering rates, often removed from their whanau and communities.
Judge Beecroft
It is shallow to think that prison will provide rehabilitation.
Rangatahi Court / Pasifika Court
Same law and procedure but take place in marae or in a Pasifika community setting.
Rangatahi
Maori feature disproportionately in all our social indicators, particularly in the criminal justice system.
New Zealand Context
Maori offenders - have been found to be at a greater risk of conviction than others of similar socioeconomic backgrounds, and there is the concern that this is true of Pacific people as well.
