Law Unit Two B

Question 1

Define mediation

Answer 1

Mediation is often ordered by the court before a trial can proceed.

Mediation involves the two parties and a trained mediator who helps the parties negotiate with each other.

Mediation is voluntary and face to face.
The mediator does not make suggestions.

The focus is on the participants and not on formal rules or procedures.

It is ideal for disputes between neighbours or employees at a workplace.

Not legally binding (it is not enforceable)

Question 2

Define conciliation

Answer 2

In conciliation, both parties agree to meet together with a trained conciliator.

The conciliator offers guidance as to how the dispute might be resolved.

Commonly used in family disputes, consumer disputes or discrimination cases where advice may be beneficial to resolution.

Participation is voluntary.

The conciliator will offer expert advice and suggest possible solutions - this will not happen in mediation.

Not legally binding (it is not enforceable)

Question 3

Define arbitration

Answer 3

A more formal process than conciliation, but less formal than court.

Both parties present their case to the arbitrator.
The arbitrator makes a determination based on the evidence, and both parties are bound by this decision (must follow).

Often used in disputes involving contracts and civil claims less than $10,000.

Unlike mediation and conciliation:
Arbitration is compulsory
Arbitration is more formal
A decision is made for the parties and it is legally binding.

Question 4

What are the purposes of sanctions?

Answer 4

Punishment, protection, deterrence, denunciation, rehabilitation.

Question 5

What is punishment?

Answer 5

To make the offender ‘pay’ for their crime.

It also allows the victims to feel a sense of retribution.

The ultimate punishment in Australia is prison, which involves the loss of freedom.

Question 6

What is protection?

Answer 6

To keep society safe from the offender by preventing them from reoffending.

Prison is the ultimate protection. There are 8 prisoners in Victoria to never be released.

Question 7

What is deterrence?

Answer 7

To discourage the offender from offending again.

It also aims to discourage anyone else in the community from committing the same offence.

Question 8

What is denunciation?

Answer 8

The court aims to denounce the criminal act, that is to express its disapproval.

It should convey the message that this behaviour is not tolerated by society.

Question 9

What is rehabilitation?

Answer 9

To treat the offender in order for them not to reoffend.

It may consist of education and training, counselling, drug related services etc.

Question 10

What are arguments in favour of the death penalty?

Answer 10

Capital punishment is the right punishment for those who take away life.
Those who have taken a life should be killed: a life for a life.

Capital punishment is a deterrent.
The fear of being executed must surely put off the criminals from committing murder.
Certainly no executed person will ever kill again.

It is more humane to put someone to death than to keep them locked up for years.

The death penalty provides closure for victims’ families.

If someone murders someone else, they have given up their human rights, including the right to stay alive themselves.

Question 11

What are arguments against the death penalty?

Answer 11

Everyone has the right to life, as proclaimed in the Universal Declaration of Human Rights.

The death penalty does not seem to deter people from committing serious crimes.

Why do we kill people who kill people to show that killing is wrong? If we support the death penalty for murder, we end up supporting murder, making us just us guilty.

Courts can make mistakes.
Innocent people are executed, and you cannot bring them back to life.

If someone is put to death, they have no chance to change their life or contribute positively to society.

Question 12

How are jurors selected?

Answer 12

The Victorian Electoral Commission prepares jury rolls at the request of the Juries Commissioner.

The rolls are prepared by random selection of as many names as requested by the Juries Commissioner from the electoral rolls in a jury district.

The Juries Commissioner sends an eligibility form to everyone on the jury roll. The Juries Commissioner uses the answers to the form to determine whether a person is qualified and liability for jury service.

Question 13

How many jurors are selected?

Answer 13

12

Question 14

What are the reasons for being ineligible for jury duty?

Answer 14

Disqualified, Ineligible, Right to be excused.

Question 15

Define disqualified

Answer 15

They have a criminal conviction.
Pending (upcoming) criminal charges.
Have been bankrupt.

If disqualified, that person will never be eligible for jury service.

Question 16

Define ineligible

Answer 16

Are a lawyer.
Are a police officer.
Have an intellectual disability.
Are unable to adequately understand english.

Question 17

Define right to be excused

Answer 17

May apply to the Juries Commissioner to be excused from jury service.

Medical reasons or aged over 70.
Live more than 50km from the court.
Self-employed.
Primary carer.
Student or apprentice studying during business hours.

Question 18

Define jury pool

Answer 18

People who attend the court in response to the summons form the jury pool.

A jury summons is an official letter from Juries Victoria stating you are required to attend a specific court on a specific date to undertake jury service.

Question 19

Define juror challenge

Answer 19

As the potential juror is walking to the jury box, they may be challenged by the accused or the prosecution.

This means that this potential juror will not be included in the jury.
No reason needs to be given.
Each side gets 3 challenges.

Question 20

What are the 5 roles of the criminal jury?

Answer 20

Decide the guilt or innocence of the accused
Provide an impartial and unbiased decision-making body
Ensure community involvement
Share decision-making
Ensures that proceedings abide by the principles of justice

Question 21

What is decide the guilt or innocence of the accused?

Answer 21

A juror is to remain impartial, listen to the evidence and decide the guilt or innocence beyond reasonable doubt.
Jurors must decide only on the facts of the case and put bias aside.

Question 22

What is provide an impartial and unbiased decision-making body?

Answer 22

Juries should not have any connection with the accused.
They should come to the court with an open mind and not bring their biases into the jury room.
They should not conduct their own research into the case.

Question 23

What is ensure community involvement?

Answer 23

The use of community members as jurors ensures that the community is involved in the legal system regardless of financial status, education, race or gender.
This increases acceptance of court decisions, as it ensures that the legal system reflects community values.

Question 24

What is share decision-making (define hung jury)?

Answer 24

There is less chance of a decision being wrong as it is shared amongst 12 people.
If the judge is satisfied that there is no chance of the jury coming to a decision, they may be discharged. This is known as a hung jury.

Question 25

What is ensures that proceedings abide by the principles of justice?

Answer 25

Using a jury means that the community can see the justice system at work.
This openness acts as a safeguard so that the public can see that the courts are operating fairly.
The presence of jury also ensures that the judge and lawyers need to explain complex legal matters in a way everyone can understand.

Question 26

Strength of the jury system
Ensures fair treatment - Equality - Explain

Answer 26

The jury is directed by the judge to return a finding of not guilty if the jury believes that the prosecution cannot prove the guilt of the accused.
This provides some protection against people being sentenced for crimes they have not committed.
A jury ensures that parties in a civil action are treated fairly and that their interests are not prejudiced in any way.
Ensures that proceedings are not conducted hastily for administrative or political convenience.

Question 27

Strength of the jury system
Spreads the responsibility - Explain

Answer 27

The more people there are involved in the decision-making process, the less likely it is that personal prejudices will influence the verdict.
The decision is more likely to be seen as fair.
Consists of anonymous men and women.
If a judge alone makes a decision, a person dissatisfied with the decision may identify the judge as responsible.
A decision made by a jury is not made by one person, so the final decision is more likely to be seen as a decision of the community.

Question 28

Strength of the jury system
A cross-section of the community - Explain

Answer 28

Juries are meant to be representative of community attitudes.
Barometer of social norms, values and opinions of the time.
The jury’s verdict is decided by ordinary citizens drawn from the community ensures that court decisions are more likely to be accepted by the community.

Question 29

Weakness of the jury system
Costly and time-consuming - Explain

Answer 29

Trial by jury tends to lengthen the legal process.
Significant time is taken to empanel the jury.
The time taken to hear a case is often stretched when juries are sent out of the courtroom while lawyers establish the admissibility of evidence.
Further time is taken for the jury to deliberate on its verdict.
The longer the trial takes to reach a conclusion, the greater the costs.
Costs of lawyers to represent the party, cost of jurors, etc.

Question 30

Weakness of the jury system
Juries don’t give reasons - Explain

Answer 30

The jury is not given any direction or formula to reach a decision.
There is no guarantee that all jurors will have the same reasons for their verdict.
Juries should give reasons for their decision, as it will provide grounds for appeal if the decision of the jury was not based on the evidence presented.
There is no way to check that the jury understood the evidence or the judge’s charge to the jury.
May not have applied the rules of law to the facts.

Question 31

Weakness of the jury system
Judges are better able to make decisions - Explain

Answer 31

Judges can draw inferences and reach sound conclusions about the facts and evidence presented by lawyers.
The judge or magistrate listens to the evidence, applies the law and then reaches a verdict.
Judges and magistrates are trained for this.
They are better equipped to perform the fact-finding function than juries.
Less susceptible than juries to emotions.
Many criminal and civil cases involve legal and technical complexities - demand the expertise of an experienced professional judge (knows what they are doing).