Justice systems

Question 1

What can be resolved through ADR

Answer 1

Civil matters.

Question 2

ADR

Answer 2

This refers to civil disputes being resolved without the parties involving adjudication. That is, the parties pursue an ‘alternative’ method of resolving their differences.

Question 3

There are two types of dispute resolution

Answer 3

Resolution directly between the two disputing parties

or

Resolution with the involvement of an independent and impartial third party

Question 4

Resolution between two disputing parties can take the form of

Answer 4

Self-help
Abandoning the claim
Consensus

Question 5

Self help

Answer 5

In this method the aggrieved party takes his or her own steps to bring about a conclusion that satisfies him or her. Despite being an inexpensive method, in which the aggrieved party is in total control, it can too easily involve criminal behaviour that could be subject to proceedings in criminal law.

Question 6

Abandoning a claim

Answer 6

An aggrieved person could simply cease pursuing the action because: • the matter is trivial and not worth the expense or effort

• the wrongdoer is a ‘straw person’ and is not in a financial position to provide a remedy even if the aggrieved party is successful
• the aggrieved party would prefer to maintain good relations with the family member or friend who is alleged to have committed the civil wrong.

Question 7

Consensus

Answer 7

In this method the wrongdoer admits liability and settles, usually because that party knows he or she is in the wrong and would be unsuccessful if litigation ensured.

Question 8

Types of third person ADR

Answer 8

Mediation
Conciliation
Arbitration

Question 9

Mediation

Answer 9

Informal
the parties are in control of the procedure. They agree on who the mediator will be and where and when the mediation conference will occur.
• attendance is voluntary and the parties are not legally bound by any agreement reached.
• costs are often non-existent or minimal, particularly as lawyers are usually excluded.
• Its great weakness being that there is no guarantee that agreement will be reached and any decision made cannot be legally enforced.

Question 10

Conciliation

Answer 10

A more formal method, similar to mediation, but is often compulsory in some branches of law, before a matter can proceed to adjudication in a court or tribunal. eg conciliation conference prior to a matter being heard in an industrial tribunal, however, no decision reached by a conciliator can be enforced by law.

Question 11

Arbitration

Answer 11

A relatively formal method of ADR in which the parties consent, by contractual agreement, to have a matter resolved by an independent arbitrator. All stages and procedures, including the outcome, are enforceable per the rules of contract law. It is becoming a popular method of ADR as expenses are minimised and the parties retain significant control over the dispute settlement procedures.

Question 12

Reasons for court hierarchies

Answer 12

Doctrine of precedent
Judicial review and appeals
Specialisation
Efficiency

Question 13

what are juries

Answer 13

A jury is a random selection of people who sit, as peers of the accused, at a criminal trial to decide the verdict of an accused person charged with an indictable offence. Most juries are comprised of 12 adult jurors, although the Juries Act 1927 (SA) allows up to 15 jurors to be empanelled.

Question 14

Role of the jury

Answer 14

A jury’s fundamental role is to decide whether an accused person is guilty of not guilty (ie decide the verdict) of the crime for which he or she is being tried.
A jury must only reach a verdict based solely on the admissible evidence presented at the trial, in accordance with the law as explained by the trial judge.

Question 15

Types of verdicts

Answer 15

Unanimous
Majority
Hung
perverse

Question 16

Unanimous verdict

Answer 16

All jurors come to the same conclusion

Murder requires it

Question 17

Majority verdict

Answer 17

Accepted by judge after 4 hours of deliberation

11-1, 10-2 (With 12 jurors).

Question 18

Hung jury verdict

Answer 18

No statuary majority

- Mistrial

Question 19

Strengths of a jury

Answer 19

• An accused person’s guilt or innocence is determined by his/her peers and not agents of the State.
• This can prevent the abuse of government power.
• An extension of the democratic principle in which ordinary citizens (adult peers of the accused) take a direct role in decision making that has a profound affect on a fellow citizen.
• Reaching a verdict rests on the shoulders of a panel (usually 12 jurors) and not solely at the discretion of one judge ie shared-decision-making.

Question 20

Weakness of a jury

Answer 20

• Not a true cross section of the community
• Elderly citizens over 70 years of age are ineligible
• Large proportion of immigrants with a poor command of the English language are excluded
• Large number of people excused eg professionals or business positions.
• Jurors are unqualified in legal matters and many have difficulty weighting and applying evidence to reach a logical conclusion
• Non-disclosure of reasons for a verdict means juries are not subject to public scrutiny, therefore jurors are not held accountable. ie juries could make decisions based on faulty logic or personal biases.

Question 21

Reforms to jury system

Answer 21

Juries should somewhat have a say in the sentencing process instead of solely the judge. This is to prevent the judge from being too harsh if they have been adjudicating for many years and have heard a multitude of similar cases.
• Jurors should have a brief education in the legal system before they can sit on the jury. For example: Should be given various informative books to read and/or attend a few classes to get their head around the general idea of law.
• Juries should give a reason for their verdict. This will give a further understanding as to why they have come to that verdict.
• Have one foreperson for the jury who has had sufficient legal training. This person can assist in explaining various legal ideas (for example: court procedure, rule of evidence and law, etc) throughout the trial to the jurors with minimal legal knowledge.
• Introduce a ‘not proven guilty’. Like the inquisitorial system, allow the jury to make a ‘not proven guilty’ verdict so if more evidence surfaces after the first trial, the accused can be retrialed.

Question 22

Criminal Pre-trial stage

Answer 22

• Preliminary hearings to determine whether a prime facie case exist to carry through a trial
• Police department gathers evidence and presents to DPP
• DPP must present all evidence to defendant at least 14 days before hearing.
• Application for bail
• Pleas

Question 23

Criminal trial stage

Answer 23

• Prosecution has burden of proof and standard is beyond reasonable double.
• a verdict is given
• May appeal on issues of law to CCA
• Legal rights
• Examination in chief, cross examination, re-examination.

Question 24

Criminal post-trial stage

Answer 24

Sentencing hearing

• DPP and defence make submissions before a sanction is given.
• Prior convictions and factors taken into account
• appeal on issues of fact.

Question 25

Civil pre-trial stage

Answer 25

• The litigants exchange documents to facilitate out of court settlement (ADR)

Question 26

Civil trial stage

Answer 26

plaintiff has burden of proof and standard is bal of p

• Appeal to the full court of supreme court
• no jury

Question 27

Civil post-trial stage

Answer 27

Remedy hearing 
Damages (general and special) 
Injunctions 
Contributory negligences 
Appeals

Question 28

General damages

Answer 28

no economical.

Question 29

Admisible evidence

Answer 29

Direct 
Indirect 
Primary 
Secondary 
Opinion

Question 30

Direct evidence

Answer 30

A witness testimony

Question 31

Indirect evidence

Answer 31

Circumstantial evidence, fingerprints of accused at the scene

Question 32

Primary evidence

Answer 32

Objects and documents relevant to the case, murder weapon

Question 33

Secondary evidence

Answer 33

Evidence that suggests the existence of primary evidence, photocopies

Question 34

Opinion evidence

Answer 34

Evidence that can be deduced from direct evidence, given by experts

Question 35

Inadmissible evidence

Answer 35

Hearsay
Illegally obtained
Opinion
Past criminal records

Question 36

Hearsay

Answer 36

Evidence relayed from one person to another

Question 37

Illegally obtained

Answer 37

Confession under duress

Question 38

Opinion evidence (Ina)

Answer 38

Tendered by someone who is not an expert

Question 39

The Adversary system

Answer 39

The Adversary system is a method of administering justice premised on the philosophy that a just outcome will occur if the two opposing parties have the lawful authority to present their conflicting cases to an independent judge and, if selected, an impartial jury.

Question 40

The Inquisitorial system

Answer 40

The inquisitorial system is a method of administering justice premised on the principle that a just outcome will only occur if the fact-finding role is vested in the authority of an independent judge, and not the two parties to the dispute.
• The Inquisitorial System exists in many countries that are non English civil law nations such as Africa, Asia, South America
• In this system when a crime is committed the state appoints a judicial officer to investigate the offence.
• The accused is not committed to trial until there is very strong assumption of guilt established.

FRANCE, GERMANY

Question 41

Judge (AD)

Answer 41

In the adversary system the judge is appointed to the bench by the Attorney General, from the legal profession after years of practice
The main role of the judge in the adversary system is to enforce the rules of evidence and procedure to give both parties a fair, equal, and lawful opportunity to present their conflicting cases to court.
- The judge is the chief advisor of the jury and determines the admissibility of evidence.
- If there is no jury, the judge decides the verdict and provides reasons for it
- The trial judge presides over the sentence hearing to determine the most appropriate sanction

Question 42

Judge (IN)

Answer 42

In the inquisitorial system, students complete a course at university and are appointed to the bench by the means of a formal application process
To oversee the investigation of a crime
- Question witnesses and the accused person and record written statements
- Prepares and maintains a dossier consisting of all the evidence collected, the rules of evidence are less strictly applied and the dossier contains
- Overseas all aspects of the trial process, including the examination of witnesses and the enforcing of the rules of court.
- Decides a verdict and the sanction to be imposed on a convicted offender.
• The profession of judge in the inquisitorial system is separated into two into two branches: one involving the investigation, including the gathering of evidence and the giving advice on the points of law, and the other to supervise the case prior to and during the trial, being in charge of the examination of witnesses and the presentation of evidence.
• One judge is assigned to each branch with the latter forming the verdict.

Question 43

Role of defence in inquis

Answer 43

In the inquisitorial system the legal representative of the accused assists to help the judge find the truth and ensures their client is given a fair trial.

Question 44

Rights in the inquisition

Answer 44

The accused has the right to remain silent
- Accused is expected to answer questions put to them by the judge - Resistance to answer questions is frowned upon
• Innocent until proven guilty
• Both systems accommodate the right of appeal, however there are fewer grounds in the inquisitorial system as the rules of evidence are less strictly applied.

Question 45

Jury Eligibility

Answer 45

Prospective jurors must be between 17 and 71 years of age (ie 18 to 70 years inclusive) and registered on the House of Assembly electoral roll.

Question 46

Staturoy ineligibility for jury

Answer 46

The Juries Act prescribes that people employed in specific positions involved, directly or indirectly, in the criminal justice system are not ineligible to do jury service. Some examples include:
• Police officers (and their spouses) and judges (and their spouses)
• People employed in the courts administration process
• Practising lawyers

Question 47

Disqualified persos

Answer 47

These are people who have been convicted of a serious offence in the past or who are currently awaiting trial, sentencing or on parole. They have been precluded because society does not believe they are responsible members of the community capable of deciding the fate of one of their peers.

Question 48

Selecting juries process

Answer 48

• Jury manager request 6,000 eligible names each year from the electoral role
• Vetting by the police commissioner (400 randomly selected names are vetted by the PC who checks eligibility)

Summoning (Jury manager sends out 220 summons to potential jurors for that month)

Final vetting (individual jurors must identify themselves as ineligible or disqualified, apply to be excused or advise the jury they will report- 140 jurors identified to do a months jury service)

Monthly jury selection induction ( 140 jurors assemble where they are registered, issued a jury number and sworn in, judge or justice will inform them of their responsibilities and roles)

Empanelment

Question 49

Empanelment

Answer 49

This is the formal selection of 12-15 jurors to sit on the jury panel from the jury section assembled in the public gallery of a criminal court room before the parties begin to present their cases.
• Jury sections assemble in the public gallery and the Judge calls the prosecution to call all witnesses. Jurors can be excused of they have an “association”
• Jurors names are selected randomly from a box. When name is called, juror moves towards the jury box.
• Defence and prosecution each permitted:
o 3 peremptory challenges (without cause)
o Unlimited challenges with cause (judge approval)
o The judge decides whether or not to approve the application for dismissal of a juror
o The parties are given the opportunity to challenge jurors
• The Juries Act allows up to 15 jurors to be empaneled at the discretion of the judge, but only 12 jurors will deliver a verdict.
• If more than 12 jurors are still on the panel at the end of the trial, a ballot is conducted to remove the excess.
• The jury foreperson cannot be excluded by this process