Legal Studies Units 3/4 Exam

Question 1

Distinguish between summary and indictable offences

Answer 1

Summary offence: A less serious offence heard in the Magistrates’ Court by a Magistrate sitting alone (rather than a judge and jury), which may be heard in the absence of the accused (e.g., road traffic offences and minor assaults)

Indictable offence: A more serious offence generally tried in the County or Supreme Court by a Judge (and a jury if the accused pleads not guilty), which cannot be heard in the absence of the accused (e.g., murder and drug trafficking offences)

Question 2

Key principles in the criminal justice system; including the burden of proof, standard of proof, and the presumption of innocence

Answer 2

Burden of proof: Refers to the party which has the obligation to provide their assertion in court. In criminal cases, the burden of proof lies with the prosecution, as it is the party which initiates the criminal proceedings

Standard of proof: Refers to the degree or the strength of the evidence required by the party bringing an action to prove their case. In criminal cases, the standard of proof is beyond reasonable doubt. This means that the average person should not have any rational doubt as to the guilt of the accused, after logically assessing the evidence

The presumption of innocence: Means that if a person is accused of committing a crime, they are considered innocent until proven otherwise. The presumption of innocence is considered to be fundamental aspect of the Victorian criminal justice system and a fundamental human right, which is outlined in the Victorian Charter of Human Rights and Responsibilities. The presumption of innocence is reinforced by the criminal burden and standard of proof, as these impose on the prosecution the responsibility of proving a charge beyond reasonable doubt, which is a very high standard to meet

Question 3

Rights of an accused - The right to be tried without unreasonable delay

Answer 3

This means an accused is entitled to have their charges heard in a timely manner and that delays should only occur if they are considered reasonable. An example of a reasonable delay would be the complexity of a case where the prosecution may require more time for a case involving multiple crime scenes, multiple crimes, multiple accused people with few or no witnesses. This right is supported by section 21 (5) of the Human Rights Charter which states that a person who is arrested or detained on a criminal charge has the right to be brought to trial without unreasonable delay. This is because under the charter people have a basic right to liberty and security and accused persons are presumed innocent until proven guilty

Question 4

Rights of an accused - The right to silence

Answer 4

This means the accused has the right to refuse to answer any questions and does not have to give any information as part of the investigation of the crime. The accused cannot be forced to give evidence in criminal trial or answer any questions, file any defence or call a witness as part of a trial. Upheld through section 89 of the evidence act 2008

Question 5

Rights of an accused - The right to trial by jury

Answer 5

The right to trial by jury guarantees individuals the opportunity to have their cases heard and decided by a group of random individuals known as the jury. This right is placed to ensure fairness and impartiality. The right to trial by jury includes diverse perspectives and promotes transparency. It is upheld through section 80 of the Australian Constitution

Question 6

Rights of victims - The right to give evidence using alternative arragements

Answer 6

In some criminal cases a victim may be a witness and therefore may be required to give evidence to the prosecution’s case against the accused. Sections in the Criminal Procedures Act (2009) Vic aim to protect certain individuals in certain types of cases. Therefore allowing for alternative arrangements to be made so witnesses can provide evidence in a different way. Example cases where this will be eligible is if it is a sexual offence, family offence an offence for obscene indecent and threatening language in public

Question 7

Rights of victims - The right to be informed about proceedings

Answer 7

Once a prosecution has commenced the victim’s charter requires the prosecution to give a victim the following information
(1) Details of the offence charged against the person
(2) If no offence is charged a reason why
(3) Details of any appeal

Question 8

Rights of victims - The likely release date of an offender

Answer 8

Once a person is registered on the victim’s register, they may receive information about an offender who has been imprisoned including the release date of the offender 14 days prior to the release. There’re other rights including knowing the length of a sentence and the right to be told if a prisoner escapes from prison

Question 9

Fairness

Answer 9

One of the principles of justice. Fairness means all people can participate in the justice system and its processes should be open and fair

Question 10

Equality

Answer 10

One of the principles of justice. Equality means people should be treated in the same way, but if the same treatment causes disparity or disadvantages, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantages

Question 11

Access

Answer 11

One of the principles of justice. Access means that all people should be able to engage with the justice system and its processes on an informed basis

Question 12

VLA

Answer 12

The Victorian Legal Aid (VLA) is a government-funded organisation which provides legal advice and representation to people charged with offences who cannot otherwise afford legal representation

Question 13

Role of VLA - Accused

Answer 13

• Free legal information
• Free legal advice
• Duty lawyer services
• Grants of legal assistance

Question 14

Role of VLA - Victims

Answer 14

• Free legal information
• Free legal advice
• Duty lawyer services
• Grants of legal assistance

Question 15

CLC

Answer 15

Community Legal Centres are independent community organisations that provide free legal services to members of the public

Question 16

Role of CLC - Accused

Answer 16

• Basic legal information
• Legal advice and assistance
• Ongoing coursework

Question 17

Role of CLC - Victims

Answer 17

• Basic legal information
• Legal advice and assistance
• Ongoing coursework

Question 18

Plea negotiations

Answer 18

[in criminal cases] pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid (also known as charge negotiations)

Question 18

Purposes of plea negotiations

Answer 18

• To ensure certainty of the outcome of a criminal case
• To save on costs, time and resources
• To achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial

Question 19

Appropriateness of plea negotiations

Answer 19

• Whether the accused is willing to cooperate
• The strength of the evidence
• Whether the accused is ready and willing to plead guilty

Question 20

Discuss the appropriateness of plea negotiations

Answer 20

Plea negotiations are pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid. In a plea negotiation the accused may plead guilty to the charges, thus ensuring certainty of the outcome and removing the risk of an acquittal, allowing for the principle of fairness to be achieved. Furthermore, if a plea negotiation results in an early guilty plea, it avoids the need for a trial or hearing and therefore saves the court and the prosecution’s resources, as well as it avoids the costs and time associated with a trial once again achieving the principle of fairness. However, on the other hand a self-represented party present at a plea negotiation can be forced into taking the plea deal, as they do not have a lawyer to guide them ultimately harming the principle of fairness. Additionally, accepting a plea negotiation usually results in a shortened sentence and leads the offender back into the community sooner than intended therefore compromising the principle of fairness.

Question 21

Reasons for the Victorian Court Hierarchy (specialisation and appeals)

Answer 21

The Victorian court hierarchy is in place to ensure that different types of cases are heard in different levels of court in Victoria, generally with less serious cases being heard in lower courts such as the Magistrates’ Court and more serious cases being heard in the higher courts such as the County Court or Supreme Court.

One reason for the Victorian court hierarchy is the appeals process whereby the prosecution or an accused can have a case or imposed sentence reassessed by a higher, more superior court to the court which originally decided a matter, if they believe that the original decision was unjust.

A second reason for the Victorian court hierarchy is the idea of specialisation, which is the notion that each court, and the judges within it, become familiar with the types of cases that they hear, and develop expertise in these areas

Question 22

Role of the Judge/Magistrates - Criminal

Answer 22

In a Victorian criminal trial, the judge acts as an impartial and independent umpire who ensures that court processes and procedures are carried out according to strict rules of evidence and procedure. They do not get involved in the case, and will not ‘run the case’ in any way

Question 23

Responsibilities of the Judge/Magistrates - Criminal

Answer 23

Ensuring rules of evidence and procedure are followed
- The judge is responsible for deciding the admissibility of evidence and ensuring that correct court procedures are followed so that both the prosecution and the defence have an equal opportunity to present their respective cases

Deciding questions of law
- The judge is responsible for determining the relevant law (that is, the relevant legislation and/or case law) to be applied to the criminal case before them, and in doing so, is responsible for explaining the law to the jury

Deciding the sentence
- If the accused has been found guilty, the judge is responsible for deciding the relevant sentence to be imposed (e.g., a sentence if imprisonment for a certain time, a fine a community correction order, etc.). In doing so, the judge is required to consider victim impact statements, mitigating factors, aggravating factors, the submission of a guilty plea (if applicable), and the maximum sentence for the offence

Question 24

Limitations of the Judge/Magistrates - Criminal

Answer 24

• Due to their independence, the judge cannot offer the prosecution or an accused assistance, even if the accused is unrepresented or if their leal representative is performing their duties unsatisfactorily
• Judges cannot determine the guilt or innocence of the accused in a criminal trial (that is they are not the decider of fact) - even though they may be the best and most qualified to do so

Question 25

Role of the Jury - Criminal

Answer 25

In a Victorian criminal trial the jury is made up of twelve people who are summoned to court and empaneled to decide on the evidence in a case and reach a verdict

Question 26

Responsibilities of the Jury - Criminal

Answer 26

Making a decision on the facts of the case
- The jury is responsible for giving a verdict as to whether the accused I not guilty or guilty beyond reasonable doubt, in accordance with the law and evidence presented. In doing this, the jury must first try to reach a unanimous verdict. However, if this is not possible after six hours of deliberation, a majority verdict (11 out of 12 jurors) can be accepted in most instances (with the exception of cases of murder, treason, and drug trafficking)

Taking part in deliberations
- The jury has the responsibility of taking part in deliberations in the jury room so that it is able to deliver a verdict of ‘guilty’ or ‘not guilty’

Put aside prejudices
- Importantly the jury is required to put aside any personal prejudices or preconceptions so that they can return an unbiased and impartial verdict of ‘guilty’ or ‘not guilty’

Question 27

Limitations of the Jury - Criminal

Answer 27

• There is always uncertainty as to whether a jury’s verdict is based on prejudice or not. Jurors can be influenced by the emotional elements of a trial, their own prejudices. This means that a jury’s decision may not be unbiased or based purely based on the facts of the case
• Having a jury as the decider of the facts can substantially slow down the trial process. Due to the time associated with empanelling the jury, explaining the law to the jury, and jury deliberations, the entire criminal trial process can be delayed
• Because those who sit on a jury have no legal training, it can be argued that they are not the best people to decide on whether or not someone is guilty of a crime. In addition, because the deliberations of a jury are kept secret, there is no way of knowing whether there was one person who was forcing others into a certain decision
• The process for choosing a jury, including who can be disqualified or excused from jury service, as well as both sides being able to ‘challenge’ a set number of jurors, can mean that the jury that eventually decides a case may not represent a true cross-section of society

Question 28

Reasons for the parties - Criminal

Answer 28

In a Victorian criminal trial, the prosecution and the accused control their own cases and make decisions regarding how their cases will be run. This is known as party control

Question 29

Responsibilities of the parties - Criminal

Answer 29

Instigating the proceedings (prosecution)
- The prosecution is responsible for bringing the case before the court

Choosing legal representation (accused)
- The accused is responsible for choosing whether to have legal representation, and assuming they chose to, he or she is responsible for selecting their legal representation

Attending court (accused)
- If charged with an indictable offence, the accused has the responsibility of attending the trial

Question 30

The need for legal representation in a criminal case

Answer 30

In a Victorian criminal trial, the legal practitioners for the prosecution and the accused present the cases of each respective side. The legal practitioners for the accused also provide the accused with legal advice and advocacy

Question 31

Responsibilities of legal practitioner - Criminal

Answer 31

Presenting the facts
- The legal practitioners for the prosecution and the defence are responsible for choosing how they will present their evidence, which witnesses they will call, and what questions they will ask. The legal practitioners for each side will do this in the way that will best strengthen their cases, though the prosecution has an obligation to bring out all the evidence known to it

Represent interests
- The legal practitioners for the prosecution and the defence are responsible for representing the interest of each side. The prosecution is responsible for conveying the values and interests of the wider community, and the legal practitioners for the accused are required to advocate for and represent the accused’s interests

Adhering to rules of evidence and procedure
- The legal practitioners for the prosecution and the defence are required to understand and adhere to the strict rules of evidence and procedure which exist in criminal court proceedings

Explaining the law and options (legal practitioners for the accused)
- The legal practitioners for the defence have the responsibility of explaining the applicable law and the different legal options of the accused to them

Question 32

Limitations of legal practitioners - Criminal

Answer 32

• The reliance on legal practitioners in criminal trials can be extremely costly. This is especially true for the accused, who is likely to be faced with high solacer and barrister fees
• If the accused is unrepresented, they will also hold most of the responsibilities of a legal practitioner

Question 33

What are costs - Criminal

Answer 33

The main costs a person is likely to incur in a criminal trial case are the costs of engaging with a lawyer to provide legal services such as legal advice or representation

Question 34

Discuss the impact of costs on the achievement of the principles of justice - Criminal

Answer 34

The main cost a party is likely to incur in a criminal trial case are the costs of engaging with a lawyer to provide legal services such as legal advice or representation. Legal services can be provided through legal service providers such as VLA and CLCs, as well as pro bono institutions and some measures are in place to try reduce the costs , such as committal proceedings and plea negotiations, ultimately promoting the principles of fairness, equality and access. However, everyone has the right to legal representation and not everyone can afford it. This can disadvantage accused people in particular, as they lack the necessary skills, experience and objectivity to navigate the system without a lawyer, harming the principle of equality. Additionally, VLA and CLCs are stretched in the number of people they can assist hurting the ability of financially struggling accused people to have a fair trial therefore harming the principle of fairness

Question 35

What are times - Criminal

Answer 35

Time in a criminal case refers to the right to be tried without unreasonable delay, and that delays should only occur if they are considered reasonable

Question 36

Discuss the impact of times on the achievement of the principles of justice - Criminal

Answer 36

Time in a criminal case refers to the right to be tried without unreasonable delay, and that delays should only occur if they are considered reasonable. This right is upheld under the Victorian Human Rights Charter. However to address time, there is improved technology and increasing use of virtual hearings that may also help alleviate the pressure, promoting access and reducing delays. Additionally an accused has the right to be tried without unreasonable delay which promotes the principle of access. However on the other hand, there are possible delays in having a trial heard which can affect the ability of the criminal justice system to achieve justice ultimately compromising achieving the principle of access. Furthermore, there are court delays associated with the complexities of the case, so delays are inevitable prolonging the achievement of access

Question 37

What are cultural differences - Criminal

Answer 37

Cultural differences relates to there being different cultures and how we can take measures to ensure the their cases are heard fairly

Question 38

Discuss the impact of cultural differences on the achievement of the principles of justice - Criminal

Answer 38

Cultural differences relates to there being different cultures and how we can take measures to ensure the their cases are heard fairly. An advantage of cultural differences affecting the principle of access is information is also provided by VLA and some CLCs in different languages, allowing access to many. Another advantage is the Koori Court which seeks to address the cultural differences faced by First Nations offenders, promoting equality. A disadvantage is that the Koori court is limited to sentencing only, so First Nations accused must need a fair trial initially for the Koori court to be useful ultimately harming the principle of access. Another disadvantage is First Nations people are overrepresented in the criminal justice system, being more likely to be imprisoned than non-Indigenous people, meaning that the criminal justice system is still struggling to achieve the principles of justice in relation to cultural differences.

Question 39

Purposes of sanctions: Rehabilitation

Answer 39

One purpose of a sanction, designed to reform an offender in order to prevent them from committing offences in the future. An advantage is that it can help an offender change their attitude and behaviour with the goal of preventing them from reoffending. A disadvantage is the ability for a person to rehabilitate while in prison may depend on the offender, the programs available, and the length of a sentence.

Question 40

Purposes of sanctions: Punishment

Answer 40

Designed to penalise (punish) the offender and show society and the victim that criminal behaviour will not be tolerated. Society must punish offenders so victims do not seek to punish the offenders themselves. An advantage is punishment through the courts avoids the need for the victim of a crime to take the matter into their own hands. A disadvantage is it can increase recidivism as an imprisoned offender can learn from other criminals.

Question 41

Purposes of sanctions: Deterrence

Answer 41

Designed to discourage the offender and others in the community from committing similar offences. Either General deterrence which is designed to discourage others in the community from committing similar offences or Specific deterrence is designed to discourage the offender from committing further offences. An advantage is reduce recidivism from offenders not recommitting crimes. A disadvantage is specific deterrence may not be as significant if the offender is remorseful, is a first-time offender or if the circumstances of offending are unique.

Question 42

Purposes of sanctions: Denunciation

Answer 42

Designed to demonstrate the community’s disapproval of the offender’s actions. As part.of its sentencing, the court will seek to reinforce that community expectations and values mean that this type of behaviour is not acceptable, and must be condemned. An advantage is community involvement is highlighted with the use of community expectations and values. A disadvantage is can be very harsh on individual offenders and disproportionate for what crime they have actually committed.

Question 43

Purposes of sanctions: Protection

Answer 43

Designed to safeguard the community from an offender by preventing them from committing further offence (e.g by imprisoning the offender). Can also be through a non-custodial sentence like a CCO as they can keep an offender busy and keep them away from certain areas. A advantage is that it protects members of the community from a dangerous offender. A disadvantage is that an offender can be treated unfairly based on potential risk to society

Question 44

Purposes of fines

Answer 44

A fine is a sanction that requires the offender to pay an amount of money to the state. The amount of the fine often depends on the maximum penalty units that can be imposted for a certain offence, which is normally stated in the statue setting out that offence

Fines can achieve the purposes of punishment and deterrence. Though denunciation also can be achieved. Rehabilitation and protection are less relevant for fines

Question 45

Purposes of Community Correction Orders (CCOs)

Answer 45

A flexible, non-custodial sanction 9one that does not involve a prison sentence) that the offender serves in the community, with conditions attached to the order

A CCO can achieve all of the purposes of sanctions depending on the circumstances of the offending and the offender. Deterrence, rehabilitation and denunciation are often purposes of imposing a CCO, but protection and punishment can also be achieved

Question 46

Purposes of imprisonment

Answer 46

A sanction that involves removing the offender from society for a stated period of time and placing them in prison

Imprisonment can achieve all purposes of sanctions, however rehabilitation may not always be achieved due to the offender not wanting to cooperate

Question 47

Discuss the ability of sanctions to achieve their purpose (using the example of imprisonment)

Answer 47

Imprisonment is a type of sanction which is an order that an offender serves time in prison, where they are removed from society and are deprived of their liberty and freedom, with a recorded conviction. Imprisonment arguably works to achieve all five of the specific purposes of sanctions, however, there is continual debate in society about how well it achieves the different purposes. For example, while protection of society is very easily achieved through imprisonment, as it involves the offender being physically removed from the community, it is arguably less about achieving rehabilitation, as while prisons do attempt rehabilitation programs for inmates, their effectiveness is limited once the prisoner is released. In relation to punishment and denunciation, imprisonment arguably achieves these quite well, as the denial of liberty for an individual is a very large punishment, as well as very likely to be able to achieve the aim of denunciation. Lastly, in relation to deterrence, imprisonment can act as a general deterrent, since the possibility of going to prison and losing one’s freedom discourages most members of the public from committing a crime. However, recidivism rates suggest that imprisonment is ineffective as a specific deterrent. This may be a result of the negative influences an offender becomes exposed to in prison

Question 48

Aggravating factors

Answer 48

Aggravating facts are those facts or circumstances relating to the offence, the victim, or the offender which increase the offender’s culpability or fault. In this way, aggravating factors work against the accused and are likely to result in a more severe sentence

Aggravating factors examples
- The offender planned the crime out
- The offender used a weapon
- The offender committed the crime in the presence of a minor
- The offender has a prior criminal record

Question 49

Mitigating factors

Answer 49

Mitigating factors are those facts or circumstances relating to the offence, the victim, or the offender which decreases the offender’s culpability or fault. In this way, mitigating factors assist the accused and are likely to result in a less severe sentence. However, it is important to note that mitigating factors do not excuse the offender’s behaviour

Mitigating factors examples
- The offender being provoked
- The offender having a mental illness or disability
- The offender being of character
- The offender being young

Question 50

Guilty pleas

Answer 50

In sentencing the offender, the magistrate or judge will consider (if applicable) the offender’s guilty plea, and will consider the stage at which they entered this plea. Generally the earlier the guilty plea is entered, the more favourable the court will be towards the offender when sentencing them

The Sentencing Act provides for sentence discounts for guilty pleas. Meaning that a court must impose a less sever sentence when the offender pleads guilty to an offence

Question 51

Victim impact statements

Answer 51

In sentencing, an offender who is guilty of an offence, the court will consider any victim impact statements submitted to the court

Victim impact statements detail the effects of the offence on the victim, alongside any injury, loss, or damage suffered by the victim as a direct consequence of the crime. The Sentencing Act outlines the right of victims to make victim impact statements

Question 52

Evaluate the ability oft the criminal justice system to achieve the principles of justice during a criminal case

Question 53

Burden of proof - Civil

Answer 53

The burden of proof shows who must prove their case is true. In civil cases, the burden of proof lies with the plaintiff, as it is the party which imitates the civil proceeding

Question 54

Standard of proof - Civil

Answer 54

Refers to the degree or strength of the evidence required by the party bringing an action to provide their case. In civil cases, the standard of proof is on the balance of probabilities. This means that the plaintiff must prove that he or she is most probably in the right, whilst the defendant is most probably in the wrong

Question 55

Factors to consider before initiating a civil claim - Costs

Answer 55

Before initiating a civil claim, it is very important for the plaintiff to consider the costs associated with pursing a civil action.

Initiating and continuing a civil claim can be very expensive and can be a significant financial burden for a plaintiff. Whilst some costs can be avoided, such as solicitor and barrister fees, evading these costs can be very detrimental to the plaintiff’s case (may result in the plaintiff being unrepresented in court). Additionally, in a lot of circumstances some costs cannot be avoided, such as subpoena fees, hearing fees, jury fees and out of pocket court expenses. It is also worth noting that pursuing a civil claim can require time away from employment, which may result in a loss of income.

Accordingly initiating and pursing a civil claim can potentially cost thousands and thousands of dollars, which should be carefully considered by any potential plaintiff.

Question 56

Factors to consider before initiating a civil claim - Limitation of actions

Answer 56

Limitation of actions requires that certain civil claims be filed by certain dates, and it is fundamental that potential plaintiffs be aware of these time constraints. For example, defamation cases have a 12 month limitation period.

Any civil claim filed outside a limitation period is very likely to be unsuccessful - meaning that it is essential for potential plaintiffs to consider any limitation of actions before initiating a civil case

Question 57

Factors to consider before initiating a civil claim - Enforcement issues

Answer 57

Enforcement issues are complications which can occur during the application or execution of a court order. For example, problems regarding the payment of compensation by the defendant to the plaintiff, due to the defendant lacking the financial means to make payment. Accordingly, it is very important for potential plaintiffs to consider enforcement issues before commencing civil proceedings

Question 58

Mediation

Answer 58

Mediation is an informal process by which two or more parties to a civil dispute cooperatively attempt to resolve their dispute and reach a decision themselves, with the support of at least on independent third party, called a mediator

Question 59

Role of the mediator

Answer 59

Mediator is responsible for independently facilitating communication between the plaintiff and the defendant, and ensuring that each party is heard without interfering or offering advice. The mediator should also encourage the parties to explore issues, consider possible outcomes, and reach an agreement, without imposing a decision on the parties. Any decision reached by the parties is not legally binding itself, however, in most situations the parties will enter into legal terms of settlement, which is enforceable through the courts

Question 60

Appropriateness of mediation

Answer 60

For many civil cases, mediation tends to be an appropriate dispute resolution method. Mediation will usually be ver appropriate and beneficial when a continuing relationship is required between the disputing parties - such as when the dispute is between neighbours. Mediation has also shown to be appropriate when effective in many family law matters where the preservation of the parties’ relationship is paramount. Mediation is also useful in these situations because it allows for the emotion of the case to be heard, rather than needing to present all evidence according to the strict rules of evidence and procedure within a courtroom - emotions can be discussed and can be used in a mediation to develop a more effective solution. Mediation also is most effective when both parties are willing to meet in a spirt of compromise and are prepared to stick ant agreement reached. Additionally, mediation will generally be appropriate in disputes where the defendant has admitted liability, and the only issue is to determine the compensation to be paid to the plaintiff.

Nevertheless, there are a number of civil cases where mediation may be an inappropriate method of dispute resolution. Mediation tends to be inappropriate and ineffective as a dispute resolution method when there are overwhelming emotions involved in the disputes that can interfere with the negotiation process. Additionally, mediation is inappropriate in disputes where there is evidence of a gross imbalance of power between the parties, scubas between the employee and employer, if, for example, there has been a charge brought forward by the employee. Mediation may also be inappropriate in disputes where there is a history of dishonest and broken promises, as mediation often requires the goodwill and honesty of the parties to be a successful alternative dispute resolution method

Question 61

Conciliation

Answer 61

Conciliation is an informal process by which two or more parties to a civil dispute cooperatively attempt to resolve their dispute and reach a decision between themselves, with the assistance and advice of an independent third party called a conciliator

Question 62

Role of the conciliator

Answer 62

The conciliator is responsible for facilitating communication between the disputing parties and listening to the facts and opinions shared. The conciliator should also offer suggestions, based on their expertise, which assists the parties in reaching an outcome to resolve their dispute. Like mediation, the decision reached by the disputing parties is not legally binding itself, however during conciliation the parties my enter into legal terms of settlement which is enforceable through the courts

Question 63

Appropriateness of conciliation

Answer 63

Conciliation is appropriate in many civil cases. Like mediation, conciliation is appropriate in civil disputes where a continuing relationship is required between the parties. The dispute resolution method also tends to be appropriate and beneficial in civil cases where both parties are prepared to compromise with one another. Furthermore, conciliation is appropriate in civil cases where one or both disputing parties lack the time or money which is needed for a trial or hearing.

Nevertheless, the dispute resolution method of conciliation is inappropriate in a number of cases. Like mediation, conciliation is unlikely to be effective in civil disputes where there are overwhelming emotions at play. Conciliation also tends to be inappropriate in civil cases where there is a gross imbalance of power between the plaintiff and defendant. Additionally, like mediation, conciliation is usually inappropriate in civil cases where there is a history of broken promises and dishonesty by one or both parties.

Question 64

Arbitration

Answer 64

Arbitration is a process whereby an independent third party listens to the evidence and arguments presented by the parties in a civil dispute, before making a determination which is legally binding on the parties

Question 65

Role of the arbitrator

Answer 65

The arbitrator listens to and analyses the evidence and arguments presented by both parties, before making an independent and unbiased legally binding decision which resolves the parties’ dispute.

Question 66

Appropriateness of arbitration

Answer 66

The dispute resolution method of arbitration tends to be appropriate in a number if civil disputes. Arbitration is very effective and appropriate in civil disputes involving less than $10000 - as shown through the Magistrates’ Court referral of such cases to arbitration. Arbitration also tends to be appropriate in civil cases where the disputing parties lack the financial resources to pay for legal representation - as the lack of rules of evidence and procedure in arbitration make it easier for parties to represent themselves

Nevertheless, there are a number of instances where arbitration is inappropriate as a dispute resolution method. Firstly, arbitration tends to be inappropriate in disputes with complex questions of law and large amounts of evidence - as these types of cases are generally better handled via judicial determination, where rules of evidence and procedure are present, in the higher courts. Arbitration also tends to be inappropriate in civil law cases involving substantial amounts of money - as a comprehensive and in-depth trial may be necessary and ‘safer’ than arbitration in such matters

Question 67

Reasons for the Victorian court hierarchy in determining civil cases

Answer 67

Administrative convenience
- The existence of the Victorian court hierarchy allows for civil cases to be distributed according to their complexity and seriousness. This means that the higher courts hear more serious, complex, and lengthy cases whilst the lower courts hear the rather minor, less complex, and shorter cases. In turn, this results in reduced delays in the lower courts, by allowing the minor cases to be dealt with more quickly, without having to wait for the lengthier civil cases, whilst also allowing the higher courts to more easily allocate their time, to make way, more complicated cases

Appeals
- The existence of the Victorian court hierarchy also allows the system of appeals to operate. The court hierarchy means that a plaintiff or a defendant can have their case or the imposed remedy reassessed by a higher, more superior court to the court which originally decided a matter, if they believe that the original decision was unjust. In turn, this provides for fairness in the Victorian civil justice system, and gives the opportunity for unjust decisions in civil cases to be corrected. However, without the court hierarchy, this avenue of appeal would not exist as there would be no superior court a plaintiff or a defendant could appeal to

Question 68

Role of the Judge/Magistrates - Civil

Answer 68

In a Victorian civil trial, the judge acts as an impartial and independent umpire who ensures that court processes and procedures are carried out according to strict rules of evidence and procedure. Depending on the civil case, the judge may also be the decider of the facts in the dispute

Question 69

Responsibilities of the Judge - Civil

Answer 69

Ensuring rules of evidence and procedure are followed
- The judge is responsible for deciding the admissibility of evidence and ensuring that correct court procedures are followed so that both the plaintiff and defendant have equal opportunity to present their respective cases

Deciding questions of law
- The judge is responsible for determining the relevant law (that is, the relevant legislation and/or case law) to be applied to the civil case before them; and inn doing so, is responsible for explaining the law to the jury (if one is present)

Deciding the remedy
- If the judge has ruled in favour of the plaintiff, the judge is responsible for deciding the relevant remedy to be ordered. The judge may be ordered that the defendant pay the plating damages, and/or may impose an injunction, ordering the defendant to do or to refrain from doing something

Making a decision on the facts of the case
- The judge may be responsible for deciding the outcome of the case; that is, imposing a decision (based on the evidence and the relevant law) in favour of the plaintiff or the defendant. This decision will be made on the balance of probabilities

Question 70

Judicial powers of case management

Answer 70

The passing of the Civil Procedure Act 2010 (Vic) resulted in Victorian judges receiving a number of powers when dealing with civil cases. Amongst these powers is the power to refer a civil case or party of a cvil case to mediation. This means that judges are able to order the plaintiff and the defendant take part in mediation at ant stage in the pre-trial and/or trial process. In doing so, a judge may refer one or a number of the issues in dispute to mediation, or may refer the entire dispute to mediation. The Act also assets that judges can make these orders without the consent of the parties in dispute

The Civil Procedure Act also gives judges the power to give directions or ant order they consider appropriate in order to facilitate the just, efficient, timely, and cost-effective resolution of the issues in a dispute. The Act asserts that such directions can be made in the interest of the administration of justice or in the public interest. The directions and orders made by judges can impose ‘any reasonable limits, restrictions or conditions relating to the management and conduct of any aspect of civil proceeding; or the conduct of any party’. For example, an oder may limit the number of witnesses at the trial. The Act also outlines that the directions and order of judges are not limited to imposing such limits, restrictions or conditions. Ultimately, this gives judges a significant amount of influence over civil proceedings

Question 71

Role of the Jury - Civil

Answer 71

In a Victorian civil trial, a jury is made up of six people who are summoned to court and empanelled to decide on the evidence in a case and reach a verdict

Question 72

Responsibilities of the Jury - Civil

Answer 72

Making a decision on the facts of the case
- The jury is responsible for deciding the outcome of the case; that is, reaching a decision (based on the evidence and relevant law) in favour of the plaintiff or the defendant, on the balance of probabilities. In doing this, the jury must first try to reach a unanimous verdict. However, if this is not possible after three hours of deliberation, a majority (5/6) can be accepted

Deciding the damages
- If the jury has reached a decision in favour of the plaintiff (has decided that the defendant is in the wrong), the jury is responsible for deciding the amount of damages to be awarded to the plaintiff (and paid by the defendant)

Take part in deliberations
- The jury has the responsibility of taking part in deliberations in the jury room, so that it is able to deliver a decision in favour of the plaintiff or the defendant; and is applicable, so that it can decide the amount of damages to be awarded to the plaintiff

Put aside prejudices
- Importantly, the jury is required to put aside ant personal prejudices or preconceived ideas so that they can return an unbiased and impartial decision in favour of the plaintiff or the defendant

Question 73

Limitations of the Jury - Civil

Answer 73

• There is always uncertainty as to whether a jury’s verdict is based on prejudice or not. Jurors can be unduly influenced by the emotional elements of a trial, their own prejudices, and/or or the charisma of legal counsel, meaning that a jury’s decision may not be unbiased and based purely on the facts of the case
• Having a jury as the decider of facts can substantially slow down the trial process. Due to the time associated with empanelling the jury, explaining the law to the jury, and jury deliberations, the entire civil trial process can be delayed
• There is also a flawed assumption that a jury is an accurate cross-representation of society. In fact, there are many varied ways in which people can be excused or excluded from jury service, such as having a background in law enforcement, or, if the trial is going to be lengthy, people can be excused if they have a family that depends upon their income

Question 74

Role of The Parties - Civil

Answer 74

In a Victorian civil trial, the plaintiff and the defendant control their pwn cases and make decisions regarding how their cases will be run. This is known as ‘party control’

Question 75

Responsibilities of The Parties - Civil

Answer 75

Instigating the proceedings (plaintiff)
- The plaintiff is responsible for bringing the case before the court

Defending the claim (defendant)
- If the matter has proceeded to trial, the defendant is responsible for disputing the claims made by the plaintiff, and if applicable, is responsible for commencing a counter-claim

Choosing legal representation
- The plaintiff and the defendant are both responsible for choosing whether to have legal representation, and assuming they choose to, they are responsible for selecting their legal representation

Question 76

Limitations of The Parties - Civil

Answer 76

Parties to civil cases are limited in that they tend to rely heavily on the advice and assistance of legal practitioners, meaning that if one party is unrepresented and the other has legal representation, the unrepresented party is likely to be greatly disadvantaged in court

Question 77

The need for legal practitioners in a civil dispute

Answer 77

In a Victorian civil dispute, the legal practitioners for the plaintiff and the defendant present the cases of each respective side. The legal practitioners for the plaintiff and the defendant also provide the parties with legal advice and advocacy

Question 78

Responsibilities of legal practitioners - Civil

Answer 78

Presenting the facts
- The legal practitioners for the plaintiff and the defendant are responsible for choosing how they will present evidence, which witnesses they will call, and what questions they will ask. The legal practitioners for each side will do this in a way that will best strengthen their case (the lawyers for the plaintiff will present evidence in a way which will prove the liability of the defendant, whilst the lawyers for the defendant will present evidence in a way which will demonstrate that the defendant is not liable)

Representing interests
- The legal practitioners for the plaintiff and the defendant are responsible for representing and advocating the interests of the parties they are representing

Adhering to rules of evidence and procedure
- The legal practitioners for the plaintiff and the defendant are required to understand and adhere to the strict rules of evidence and procedure which exist in civil court proceedings

Explaining the law and options
- The legal practitioners for the plaintiff and the defendant are responsible for explaining the applicable law and the different legal options of the parties they are representing to them

Question 79

Limitations of legal practitioners - Civil

Answer 79

The reliance on legal practitioners in civil trials can be extremely costly. Since most parties need to engage in legal representation, civil disputes typically involve high solicitor and barrister fees

Question 80

The use of class actions to resolve civil disputes

Answer 80

Class actions are legal cases filed by a single representative on behalf of seven or more people. The claims of the parties being in a class action will be based around the same, similar, or related circumstances

The significance and benefits of class actions can be seen in the way that they allow those who have been wronged to pursue a claim that would generally be too expensive to pursue independently. Also provides access to justice for those who may be able to achieve just on their own. Benefits the courts as it allows the same matter to be heard in one trial rather than seperate cases

However, a disadvantage of class actions is that they limit the ability of individuals to control the proceedings. They can also be difficult for a single lawsuit to represent the needs of all of the involved persons

Question 81

Discuss the appropriateness of class actions, methods and institutions to resolve a civil dispute

Answer 81

A class action is a type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding. There are four types of class actions, shareholder class actions, product liability class actions, employee class actions and natural disaster class actions. Group members of the action aren’t responsible for any costs, though they’ll share costs if the claim is successful. This increases access, allowing people to participate in the civil justice system who would not be able to afford it by themselves. Furthermore, class actions provide a more efficient way of dealing with multiple claims at once, saving time and resources, allowing multiple people to engage with the civil justice system together for the one dispute. On the other hand, class actions are sometimes feared to allow class action lawyers to take advantage because they get more compensation than the actual group members, which may compromise the class actions ability to achieve a fair outcome. Moreover, class actions can also be criticised for taking up a significant amount of court resources and time if it is a large action, hurting other peoples ability to engage with the civil justice system.

Question 82

What is Consumers Affairs Victoria (CAV)

Answer 82

Consumers Affairs Victoria (CAV) is Victoria’s consumer affairs regulator; a business unit of the Department of Justice and Regulation which oversees business-consumer relations in the state. CAV aims to help Victorians be responsible and informed businesses and consumers. CAV conduct a number of duties, including conciliating disputes between consumers and traders, and between tenants and landlords, as well as educating consumers, tenants, business, and landlords on their rights, responsibilities, and changes to the law

Question 83

Purposes of CAV

Answer 83

• To ensure businesses comply with consumer laws
• To encourage Victorians to exercise their consumer rights
• To provide for fair and safe residential tenancies
• To encourage a modern and effective consumer law framework

Question 84

Appropriateness of CAV

Answer 84

When it comes to the resolution of civil disputes, Consumer Affairs Victoria is appropriate in a number of cases. Given CAV’s specialisation and expertise in consumer matters, it is likely appropriate to be appropriate in the resolution of disputes between consumers and businesses. For example, a dispute which arises because a product is believed to be faulty between the purchaser of the product and the business that sold it. Additionally the way in which CAV resolves civil disputes via conciliation makes it very appropriate for the resolution of disputes between tenants and landlords. This conciliatory approach can be of significant value when ti comes to disputes between tenants and landlords, given the fact that an ongoing relationship can be required between these parties, despite the dispute

On the contrary, there are a number of matters where CAV may be an inappropriate avenue of civil dispute resolution. Since Consumer Affairs Victoria specialises in resolving disputes between consumers and businesses, and landlords and tenants, it is unlikely to be appropriate in resolving other civil disputes (as it would lack the knowledge and resources to do so). For example, CAV would be extraordinarily inappropriate in resolving family law disputes, as well as disputes between the parties of a contract (outside a consumer-business setting) and civil disputes regarding personal injury. Additionally, CAV is lily to be inappropriate in civil cases where there is already great hostility between the parties. In such civil matters, conciliation is unlikely to be successfully and an adversary approach used by another dispute resolution body is likely to be more effective in resolving the dispute

Question 85

What is the Victorian Civil & Administrative Tribunal (VCAT)

Answer 85

The Victorian Civil and Administrative Tribunal (VCAT) is an independent tribunal which hears and determines a number of civil law matters. VCAT hears civil cases using informal processes and the decisions of the tribunal are legally binding and enforceable through the courts

Question 86

Purposes of VCAT

Answer 86

• To provide cost-effective civil dispute resolution
• To provide timely civil dispute resolution
• To provide accessible and informal civil dispute resolution
• To provide quality civil dispute resolution heard by expert bodies

Question 87

Appropriateness of VCAT

Answer 87

In many civil cases, the VCAT is an appropriate avenue for dispute resolution. Given the specialisation of its division and lists, it would generally be appropriate for VCAT to vast a number of civil cases, including those regarding discrimination and equal opportunity residential tenancies and retail tenancies, building and construct, credit, consumer affairs, and even government decisions, such as TAC decisions. It is also generally appropriate VCAT to hear civil disputes where the parties to the case require the dispute to be resolved promptly and cheaply, given the fact that VCAT tends to provide for more cost-effective and timely civil dispute resolution than the courts. Furthermore, the informality of VCAT make it appropriate to hear civil disputes where the parties to the matter may be especially prone to being intimidated by court proceedings

Nevertheless, it is inappropriate for VCAT to hear certain types of cases. Firstly, since the tribunal specialises in civil matters, it would be extraordinary inappropriate (and is not possible) for VCAT to hear any criminal law matters. Secondly, the Victorian jurisdiction of VCAT makes it unable to hear disputes between people who are not connected with Victoria. It is also inappropriate for the tribunal to hear certain civil law cases, including disputes between employers and employees, disputes between neighbours about fences or trees and disputes between drives in car accidents. Furthermore, it is arguably inappropriate for VCAT to hear matters involving lengthy and complex evidence and questions of law, as these matters are more likely to be appropriately handled by the courts, which have the legal expertise and time to hear such cases

Question 88

Discuss the impact of costs on the ability of the civil justice system to achieve the principles of justice in the civil justice system

Answer 88

Costs are a factor that can create issues in relation to the civil justice system. Costs in civil cases are the cost for legal representation, court costs, disbursements and the costs of having to pay some of the other sides costs if the claim or defence is unsuccessful. In line with access, there are bodies/organisations in Victoria that provide pro bono assistance to individuals. This allows individuals who may experience cost issues, the ability to access the civil justice system, especially those who aren’t able to afford it. Furthermore, there are alternative dispute resolution methods like mediation, these can resolve a dispute quickly and potentially before trial or hearing, saving time and costs for the parties and the court or VCAT. Therefore, this assists parties the ability to participate in the civil justice system, avoiding delays allowing for the principle of fairness to be achieved. On the other hand, most civil parties cannot access legal aid, as legal aid funding is mainly spent on criminal and family law cases not civil disputes. This compromises some people’s ability to participate in the civil justice system as they maybe unable to afford legal representation, which could then compromise fairness by preventing them from receiving a fair outcome. Additionally, the costs of possibly having to pay the other sides costs if a claim or defence is unsuccessful is significant. The risk of having to pay these costs could prevent a plaintiff from initiating a claim, preventing them from participating in the civil justice system and receiving a fair outcome compromising fairness.

Question 89

Discuss the impact of time on the ability of the civil justice system to achieve the principles of justice in the civil justice system

Answer 89

Time is a factor that can create issues in relation to the civil justice system. Time issues of a civil dispute are delays that can arise from backlogs, pre-trial procedures, evidence and gathering/preparation. In line with the ‘no delays’ requirement of fairness, case management powers can allow for the modification of procedures, pleadings, discovery of documents and evidence preparation to reduce delays. Therefore the case management powers can shorten hearings or trials, preventing delays. Furthermore, some matters are now dealt with ‘on the papers’, which avoids the need for parties to present their cases at a hearing. This prevents time issues like delays and backlogs arising from hearings, thus allowing people to participate in the civil justice system without delays upholding fairness. On the other hand, pre-trial procedures and evidence/preparation can be both complex and lengthy processes, especially discovery which can take months. These can result in delays in the hearing of the civil dispute, therefore compromising fairness. Moreover, backlogs are a big issue in the civil justice system. Backlogs are delays in having cases listed for hearing or trial, depending on the court or VCAT list. These backlogs delays do not align with the fairness requirement of having ‘no delays’, therefore preventing the achievement of fairness.

Question 90

Damages

Answer 90

Damages are a type of civil remedy in the form of a sum of money, paid by the defendant and given to the plaintiff, as a result of a civil claim made by the plaintiff. The general purpose of damages is to compensate the plaintiff for losses suffered

Question 91

Compensatory damages

Answer 91

Damages which aim to compensate the plaintiff for the injury suffered, to the extent that the money is able to do so. The purpose of compensatory damages is to restore the plaintiff whose rights have been infringed to the position they were in before the infringement occurred, by financially compensating them for losses suffered

Specific damages
- Damages which can be given in a precise monetary value, and which are easily quantifiable (damages for medical expenses)

General damage
- Damages which will be assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong. General damages are given as a general estimate, as they are not easily quantifiable (damages for pain and suffering)

Aggravated damages
- Additional compensatory damages which can be awarded to the plaintiff if the court believes that the defendant’s conduct resulted in the humiliation and insult of the plaintiff

Question 92

Nominal damages

Answer 92

Damages awarded to the plaintiff of only a small monetary amount, because the aim of the damages is not to compensate the plaintiff, but rather to make the point that the plaintiff is legally in the right and to show that the plaintiff’s civil rights had been infringed. Therefore, the purpose of nominal damages is to make the point that the plaintiff is legally in the right, and/or to show that the defendant had infringed the plaintiff’s civil rights

Question 93

Contemptuous damages

Answer 93

Damages awarded to the plaintiff of only a small sum of money, because despite having a legal right to damages, the court believes that the plaintiff does not have a moral right to damages - that is, they do not deserve to be paid damages. Therefore, the purpose of contemptuous damages is to express the court’s disapproval of the plaintiff’s claim, whilst recognising that the plaintiff has a legal (but not a ‘moral) right to damages

Question 94

Exemplary (or punitive) damages

Answer 94

Damages of a rather large sum of money, awarded to the plaintiff with the aim of making an example the defendant and punishing them for engaging in reckless, malicious, and/or cruel behaviour which showed a scornful disregard of the plaintiff’s rights. Therefore, the purpose of exemplary damages is to punish the defendant for their reckless, malicious, or cruel behaviour, whilst also making an example of them and deterring them and others from replicating the behaviour

Question 95

Injunctions

Answer 95

An injunction is a court order directing someone to stop or to refrain from doing something, or to do something. Injunctions can be granted either before a trial, in order to prevent someone from continuing to perform the alleged action, or force them to do something prior to the court case. Injunctions can then either be continued, or created, at the conclusion of a trial. They can be permanent, or only for a certain amount of time. The general purpose of an injunction is to rectify a situation caused by a person who has been found to be in the wrong, by ordering them to do something, or to stop or refrain from doing something

Question 96

Restrictive injunction

Answer 96

An injunction which orders someone to stop (or to refrain) from doing something; such as an order stopping someone from going to a particular place. Therefore, the purpose of restrictive injunctions is to stop or refrain someone from doing something, is an attempt to preserve the position of a party

Question 97

Mandatory injunction

Answer 97

An injunction which orders a person to do a particular act; such as an order compelling someone to perform a service. Therefore, the purpose of a mandatory injunction is to order someone to do a particular act and attempt to rectify a situation

Question 98

Discuss the ability of remedies to achieve their purposes

Answer 98

Damages are an amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful act from the defendant. The types of damages are exemplary, nominal, contemptuous and compensatory which includes general, specific and aggravated damages. In line with the fair outcome requirement of fairness, damages aim to restore the plaintiff to their original position before the harm occurred. This can include reimbursement for financial losses such as medical expenses, lost wages and property damages. The ability of damages to restore the plaintiff to their original position is what can create a fair outcome for them. thus upholding fairness. Furthermore, especially with exemplary damages, adequate punishment and deterrence can be served by damages. By imposing financial penalties beyond just compensation, exemplary damages reinforce society values and discourage wrongful actions. Therefore, these damages can prevent a defendant from committing further harm to the plaintiff while upholding fairness through the provision of a fair outcome. On the other hand, while financial losses can be relatively simple to calculate, non-economic damage such as pain and suffering, mental anguish or disfigurement are not easily quantifiable. These types of losses generally cannot be fully addressed by monetary compensation, leaving some plaintiffs lacking the remedy they deserve, thus affecting fairness. Moreover, the effectiveness of damages achieving punishment and deterrence depends on the amount of money awarded and the financial status of the defendant. If the award is too small or the defendant is wealthy, it may not serve as an adequate deterrent or punishment, thus not being a fair outcome and compromising fairness.