Elements of an effective legal system Flashcards
Entitlement to a fair and unbiased hearing
An effective legal system provides structures and procedures that facilitate a fair hearing or trial, free from bias. People should not be discriminated against when appearing before dispute resolution bodies, and should have an equal opportunity to present their case. The court processes, including rules of evidence and procedure, the adversary system and the jury system, should operate so as not to disadvantage either party.
Effective access to the legal system
To operate effectively a legal system must provide ways in which disputes in the community can be resolved. This means the provision of avenues for dispute resolution so that parties to a dispute can reach a resolution without having to resort to methods outside the law.
Timely resolution of disputes
To operate effectively the legal system must resolve disputes in a in a reasonable time. If the law resolves civil disputes too slowly, disputes may fester and the community may lose confidence in the legal system. Delays in criminal process are also potentially damaging for people being held on remand. However, the law should not resolve a dispute so quickly as not to allow adequate time for a full consideration of both sides to a dispute.
How bail achieves a fair and unbiased hearing
Upholds the presumption of innocence, as an accused person is generally released from custody until their hearing or trial. Being released on bail also gives the accused and their legal representation the best chance to prepare their case, thereby having the same opportunity to do so as the prosecution.
How committal proceedings achieve a fair and unbiased hearing
This process enables the accused to learn of the prosecution’s case against them, thereby helping them to prepare their defence, and putting them on an equal footing with the prosecution.
How police investigation achieves a fair and unbiased hearing
Police powers of questioning, arrest, searches and so on are balanced against individual rights, such as the right to silence, questioning for only a reasonable period of time, and the right to contact a legal representative, friend or relative. This is done in an attempt to balance rights, and to make sure that people are treated equally and fairly by the police.
How bail hinders a fair and unbiased hearing
An accused person may not be granted bail and instead be placed on remand, even though they have not been found guilty of a crime. Because of the possibility of keeping an innocent person in prison, bail justices, magistrates and police are very reluctant to refuse bail. However, if bail is given too freely, it could lead to an accused person absconding and causing extra work for the police and potential danger to the community.
How resources hinder a fair and unbiased hearing
Prosecution evidence for a case is gathered by the police, who are experts in this area, with time and resources devoted to this purpose. An accused person will probably have far more limited resources and expertise in gathering their own evidence for their defence, thereby putting the parties on an unequal footing. However, it is the prosecution who has the burden of proving the case.
How committal proceedings in general achieve timely resolution of disputes
These ensure that people who have been accused of a crime do not have to wait a long time for a trial when there is insufficient evidence to support a conviction by a jury at trial. This also results in the superior courts not being clogged up with cases that are unlikely to succeed, thereby saving time for the legal system as well. There are also time limits on committal proceedings.
How collection of evidence may hinder timely resolution of disputes
Police may experience difficulties collecting evidence or locating witnesses, or suspects may refuse to cooperate with them.
How committal proceedings may hinder timely resolution of disputes
These can add to the delays experienced in some cases. This has resulted in people such as former DPP Jeremy Rapke and Victorian Ombudsman George Brouwer calling for committals to be abolished.
How courts may achieve effective access to the legal system
Courts are available for all to use in criminal matters, with courts in both metropolitan and regional areas. Courts are specialised in terms of the types of cases that they hear. For example, the Magistrates’ Court hears summary or minor criminal cases, while the Supreme Court hears only the most serious criminal offences. Accused persons are able to get assistance in a court hearing from legal representatives.
How appeals may achieve effective access to the legal system
The system of appeals means that if an incorrect or unfair decision does appear to have been made in a case, then either party is able to appeal the decision or sentence, provided that
they can establish grounds for appeal.
How geography may hinder effective access to the legal system
Distance and transport can affect the ability of people in rural areas to gain access to face-to-face legal. In some instances people have to look outside their local community or closest large town for legal assistance because of conflicts of interest or lack of available expertise.
How financial constraints may hinder effective access to the legal system
An accused person faces the high cost of engaging legal representation to assist them in preparing their defence and to represent them in court. It might be possible for them to obtain legal assistance through Victoria Legal Aid (VLA), although this is means-tested and subject to assessment for merit and reasonableness. Further, VLA has limited funds, so there are many people who do not receive assistance.
