Legal studies- unit 2 Flashcards
Describe the role of Victoria Police in enforcing criminal law, including 2 powers. (3 marks)
The Victorian Police is the main institution that enforces criminal law relating to indictable offences and most summary offences in Victoria. One major role is to preserve the peace, for example directing movement in the community. Another role is protecting life and property, for example preventing theft.
Evaluate the balance between institutional powers and individual rights.
Police powers need to be balanced against the rights of individuals. If police have too much power then individuals may be unjustly treated, if police powers are too few then law enforcement and crime prevention is difficult. Arrest is when police can arrest someone with or without a warrant, however if without this must be necessary in order to then enforce the law. This upholds in how an individual can refuse going to a police station unless they are arrested, alongside they must be informed at the time of the arrest about the proceedings, alongside the person must be promptly brought before the court and a person must be released within a reasonable time of being taken into custody. Questioning is if a person has been arrested as a suspect and is in custody then an investigating official has the power to question within reasonable time. This upholds individual rights as the person must be informed that the things said may be given as evidence as well as the person being informed that they can communicate with others as well as having the right to an interpreter.
Outline three rights that a person has when being questioned by police
One right that an individual has is that one must be cautioned that whatever is said may be used as evidence. Another is that an individual is informed that they are able to communicate with an outside source. Finally, a person has a right to a interpreter in questioning if they do not know English.
Outline the original criminal jurisdiction of the Magistrates Court.
The original jurisdiction of the Magistrates Court is summary offences, for example minor traffic offences alongside indictable offences heard summarily and committal proceedings such as bail and warrant applications.
Explain the role of a criminal jury and the role of a civil jury
Juries are based on the notion of trial by peers in which each person is trialled by the values held by community members. Their role is to determine the facts of the case and the guilt of an accused person, and are seen in the original jurisdictions of the County and Supreme Court. Each jury must listen to the evidence, concentrate and piece this evidence together. When reaching a verdict in a criminal jury this must first be a unanimous verdict (12) , however if not achieved the judge may allow (11/12). In a civil jury made up of six members, is to decide whether the plaintiff has established their claim.
Outline three purposes of criminal sanctions.
A sanction is a penalty imposed by the courts on a person who is guilty of an offence. One purpose is punishment as it enables the community to feel there has been retribution against the offenders actions and the offender is punished on their severity of actions. Another purpose is protection as it ensures the safety of the community through providing a sanction. Additionally deterrence as it will specifically deter the offender from recommitting as well as the general deterrence of the community.
With reference to one principle of justice, discuss the effectiveness of imprisonment.
Imprisonment is that the offender is removed from society and are placed into prison, in addition there is a after non-parole period where offenders can apply to leave prison on ‘good behaviour.’ Fairness is the process, procedures and principles in our legal system that ensure all are treated fairly without fear or favour, hence through everyone being treated the same through imprisonment this will then uphold fairness. Although imprisonment could not be effective as many choose to reoffend after their parole period, hence allowing more crime.
Discuss the effectiveness of fines in achieving the purposes of criminal sanctions.
Fines are a financial penalty paid by the offender to the state. This is effective as it upholds deterrence, as it deters the offender from recommitting alongside deterring the general community from committing this crime with a fine. However this may not be effective as the offender may be in significant wealth this not specifically deterring them to recommit. Another purpose seen is that it enables the community to feel like there has been retribution against the actions. However this may not be significant enough to punish the offender.
Explain the difference between mediation and conciliation.
Mediation is a cooperative method of resolving disputes where parties engage in solving the process by sitting down and discussing. For example, in a situation needed of an ongoing relationship, that is wanted to be maintained. Whereas conciliation is an assisted method of resolving disputes in which a conciliator listens to both sides of the dispute and suggests ways to resolve the matter. For example, this is also used when a relationship is wanted to be maintained.
Why might court be a better option for resolving a civil dispute than another method? Justify your answer
Courts have many strengths including the idea that judges are impartial and make decisions on facts, thus to determine how to return the plaintiff back to their original position. Additionally, they aim to reduce delays and costs through management, hence due to the court hierarchy judges are specialised. However, it may be too expensive, and the formalities might show stress, alongside sometimes there are delays, hence an issue as it prolongs the dispute time.
Outline the purposes of civil remedies.
A civil remedy is the way a court can right the wrong that has occurred to the party that has suffered as loss
Describe the role of the jury in a civil case.
The juries role is to consider the facts of the case and decide who is wrong on the balance of probabilities. Their role allows ensuring the communities views are reflected in their decision.
Explain the civil remedy of injunctions and damages.
Remedies are to right the wrong that has occurred to the party that has suffered a loss. Hence damages as they are a remedy in the form of a sum of money that is awarded to the plaintiff, hence righting the wrong that was made. For example, if one now has a medical condition, they can seek damages to pay for that medical condition. Injunctions are a remedy in the form of a court order either directing someone to stop doing something or to start someone to do something, hence rectifying a wrong. For example, by stopping a company pulling down a building by having a court order to stop them.
Describe how statute law protects rights of Australians
Statute law are laws made by parliament. Hence statute law protects the rights of Australians as it outlines the fundamental principles that Australian should be governed by, hence the constitution as it can only be removed by a referendum.
Using examples, describe expressed rights and implied rights.
Expressed rights are rights stated in the Constitution and can only be removed by Australia’s vote in a referendum to change the constitution. For example, the freedom of religion. Where as implied rights are those that exist as the High Court interprets the Constitution, for example the Freedom of Political Communication, allowing people to be informed on political parties (s7 and s24)
