New Directions/Alternatives in Legal Process Flashcards
reform, ADR - civil, criminal
Why is reform necessary in our legal system?
- dispute over details (generally triggered by controversial trials i.e. miscarriages of justice)
- public dissatisfaction - decsions are contentious and hotly debated
- can be controversial and opposed to by sections of the community
- to improve efficiency and equity
When was the most recent law reform in WA and what main areas were reformed?
1999: a report published by the Law Reform Commission of WA reviewing the civil and criminal trial processes
Start of the 2000s: govt. of WA put in major reforms under
- simplifying and modernising court structures- dividing Magistrates Court, creating Court of Appeal (creation of specialist courts)
- creating alternatives to standard court processes
- changes to trial processes
What have been the main changes to the trial process?
- Abolition of preliminary hearings (formal court process to determine if prosecution had arguable case against accused)-stronger requirement for prosecution to disclose evidence against the accused in advance (Criminal Procedure Act 2004-Committal Mention Process)
- Reforms to jury
- Greater level of written evidence accepted
- Special class of witnesses give evidence by CCTV (to reduce trauma)
- Greater powers of police for investigation with respect to organised crime
- Greater enforcement of civil judgements-acess to financial information and greater sanctions including imprisonment for wilfully disobeying the court
What were features of the Magistrates Court pre changes and post reform?
pre changes
- divided into 3 courts: Local Court, Small Claims Tribunal, Court of Petty Sessions
reform
- became a single court (The Magistrates Court) with civil and criminal jurisdiction
- civil disputes - < $75 000
- minor disputes division - civil disputes < $10 000, no legal representation permitted
- criminal division - simple offences and either way offences
- divided into specialist courts with different processes such as drug court, mental health court, family violence court, aboriginal community court
What is the Drug Court and what is its main aim?
- 3/4 people in criminal trial process have illicit drug problems
- 2004: Magistrates Act allowed MC to be separated into divisions such as the Drug Court
- After a plea of guilty and a want to rehabilitate, offender will be referred to the Drug Court where they can be dealt with a:
- pre sentence (supervised treatment order, Drug Court regime, pre sentence order) or
- post sentence (conditional suspended prison sentence order-parole/suspended sentence)
- its aim is rehabilitation
What are the features of the Community Court?
2006: leaunched as a division of the Magistrates Court
- sentencing court specialised for Indigenous Australian and Torres Strait Islander offenders
- designed to be more inclusive of their culture and people than trad. court system
- formed due to overrepresentation of Aboriginal people in criminal disputes (make up 3-4% of pop. but 14% incarcerated)
- offender must plead guilty and be prepared to take responsibility for their actions
- less formal: magistrate, offender, elder, family/community sit in an open session
- enforces tribal law in sentencing
***goal: to make sentencing orders that are appropriate in the background and situation of the offender
When was the Court of Appeal created and what are the features of the Court of Appeal?
Why was there a need for this court/what are the benefits of this court?
2004: took over apellate function of Supreme Court
- 6 justices exclusively deal with appeals, lead judge = President
- deals with appeals from all lower courts or tribunals and from the general division of the Supreme Court
Benefits:
- greater efficiency in the court system
- judges are specialised appeal judges - develop a higher level of expertise in appeal matters
- creates consistency of decisions
What is restorative justice?
approaches to justice that seek dispute resolutions that recognise damage done to the victim and the community and as far as is possible to repair the harm of the crime. It directly involved the victim in determining the harm created and in seeking just reconciliation between victim and offender
What are the objectives of specialist courts?
***focus on restorative justice
- reintergrate offender back into society
- reduce reoffending
- rehabilitate offender
- ensure defendant is not a danger to the victims of their criminal behaviour or to the community in general
What is the VCCC?
Voluntary Criminal Case Conferencing - commenced 2006
- purpose: to reach agreement, if possible, on: the strength of the prosecution case, whether the charges reflect the evidence in the pros. brief, the real matters in issue and agreement on matters that aren’t in issue
- operates in superior courts for indictable offences
- voluntary process that seeks to resolve cases faster adn avoid trial
- facilitated by a retired District Court judge
- offered at committal stage but also can be at any pre-trial stage
- not part of the trial process-anything said not binding on the parties + not used at trial
What are some crime prevention strategies?
- reducing offenders (reducing incarceration)
- reducing the level of reoffending (recidivism
- reinforcing deterrents to offending - seizure of assets of convicted offenders (confiscation of proceeds of crime)
this is done through:
- decriminalisation
- deinstitutionalisation
- diversion
What is decriminalisation and what are the reasons for it?
- to remove criminal status from an action or behaviour
- abolish criminal laws or reduce severity of penalties that apply
reasons:
What is deinstitutionalisation and how is it demonstrated?
aims at reducing confinement of people in society
demonstrated by:
- closure of institutions (i.e. orphanages)
- reduction of institutions (i.e. asylums)
- limited us of institutions (i.e. juvenile detention centres)
What are police caution methods?
What is family group conferencing?
What are the main alternatives to the standard court structure?
- State Administrative Tribunal
- Alternative Dispute Resolution - negotiation, mediation, arbitration, facilitation, concilitation, collaborative law
What is diversion, what is the basic principle it rests upon and what are the 2 main types?
a means of diverting first offenders from the formal court process - form of probation in the way it works. A court will deal with the offender differently. If the offender accepts a number of conditions and abides by those conditions the court may dismiss the charge
Basic principle of diversion: acknowledgment of offending and that the offender has caused harm to the victim
There are two main types:
- police cautions:
- family group conferencing
When was the State Administrative Tribunal created and what is it?
1999: created, replacing a large number of boards and tribunals (over 40 bodies/tribunals)
- independent body that reviews decisions made by government agencies, public officials, loval governement. It also makes a wide variety of original decisions
- original and review jurisdiction include human rights, developments adn resources, vocational regulation and commerical and civil
- it is not a court and therefore doen’t have strict rules of evidence
- encourages resolution of disputes through mediation
- decisions are not binding
What is ADR?
ADR is Alternative Dispute Resolution that can refer to any dispute resolution procedure that operates outside or modifies the approach of the establish court system.
Main types:
civil dispute: mediation, negotiation, independent arbitration
criminal disputes: crime prevention strategies, decriminalisation, deinstitutionalism, diversion programs, alternative courts
What are the advantages of ADR?
- arbitrator/mediator can have technical expertise in the matter under dispute
- many more types of settlement are available (civil) i.e. agreed mutual action, changed decisions/policies, apologies
- mediation can resolve issues earlier in a dispute
- may make compromise more likely and preserve a continuing relationship between the parties
- confidential
- absence of formal rules of procedure in some processes encourages parties to negotiate and reach a speedy resolution of the dispute
- is usually quicker and cheaper than formal court action = more accessible
What are the disadvantages of ADR?
- process may be unfair if parties are unequal
- while costs are often lower, this is not guaranteed
- may be limitations for wider community - when mediation is used as a substitute for court judgements, the decisions reached do not add to the body of precedents that help shape future, and hopefully, better law
What is mediation?
an impartial 3rd person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties - supervises not directs
What is arbitration?
a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial (+less expensive, confidential, less time), and the rules of evidence are often relaxed.
- Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Generally, there is no right to appeal an arbitrator’s decision
- Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator’s decision.
Contracts often specify that arbitration be used if a dispute arises.
Arbitration is used in a variety of areas, such as industrial relations and union disputes.
What is negotiation?
informal means of resolving a dispute, whereby the people involved communicate directly/openly with each other to try and reach an agreement. Negotiations can be conducted with or without the assistance of a third party, such as a solicitor.
Negotiation should be seen as a first step in resolving a dispute. If this method fails, other types of ADR should be considered.
