Practice exam unit 2 - 101

Question 1

Explain how to access, one of the principles of justice could be achieved in a criminal case.

Key points

• Describe what access is
• Explanation of how access can be achieved in a criminal case

Answer 1

Access means that all parties should be able to understand their legal rights and have the right and opportunity to use the processes and systems that are used in the legal system. In criminal cases, access can be achieved by making sure everyone has the chance to go to court, access to legal information advice, and representation that is needed. They also need to be able to find out any information about their rights, and even victims should get access to information regarding the case in which they are named.

Question 2

Describe the role of the police in our society

Key Points

• Identification of the police role protection and enforcement
• Describe in detail the role of police

Answer 2

The role of the police is to serve the community and uphold the law. The police preserve the peace, protect life and property prevent crime detect and apprehend offenders and assist victims of crime or other people in times of an emergency. The people of Victoria rely on police to protect life and property, detect and apprehend offenders, and help those in need of assistance.

Question 3

In addition to State and Federal police, there are a number of bodies in Victoria who are given authority by Victorian Parliament to enforce criminal laws.

What are these bodies called, and give an example of one of these bodies.

Answer 3

These bodies are called delegated bodies (they are called this because they are delegated power by Parliament). An example of these bodies would be: Consumer Affairs Victoria, Local Council, Environment Protection Authority, VicRoads, Worksafe Victoria etc.

Question 4

Explain the difference between aggravating factors and mitigating factors in a criminal case.

key points

• Describe the aggravating factors
• Describe the mitigating factors
• Explanation of the difference between aggravating and mitigating factors

Answer 4

Aggravating factors are any relevant circumstances, supported by the evidence presented during the trial, that makes the harshest penalty appropriate, in the judgment, whereas mitigating factors are any evidence presented regarding the defendant’s character or the circumstances of the crime, which would be cause for a lesser sentence. When working out the difference the things that need to be taken into account when a court is deciding a result would be the nature, circumstances and seriousness of the offence, the personal circumstances and vulnerability of the victim, the extent of any injury, emotional harm, loss or damage derived from the offence, the defendant’s character, general background, offending history, age, and physical and mental condition, the extent of the defendant’s remorse for the offence, and the defendant’s progress of rehabilitation.

Question 5

Explain why a Community Corrections Order would be used in a case where a person has been found guilty of property damage.

Key points.

• Explanation of what a CCO is
• Identifying the conditions that need to be attached to a court order
• Relating the case back to the punishment

Answer 5

A community corrections order is a flexible order that allows you to serve your sentence in the community. These court orders have at least one condition attached. These conditions differ according to the kind of offence you have been found guilty of and your particular circumstances. A person who has damaged property for example in a graffiti case, would be punished by a CCO as they would perhaps have to clean the graffiti off other areas, and so they also may be rehabilitated as they would understand how much work goes into the cleaning of graffiti, it would benefit the community.

Question 6

Johnny Rottenapple has been charged with armed robbery and has pleaded not guilty. Describe the role of the jury in Johnny’s trial.

Key points.

• Identify determine questions of fact
• Identify application of the law
• Applying this to the case in question and describing the verdict

Answer 6

The role of the jury in a criminal trial like Johnny’s is to determine questions of fact and to apply the law (as stated by the judge), to those facts to reach a verdict. In criminal trials, the jury’s role is to determine guilt or innocence (or otherwise should be said here as we are presumed innocent anyway). If the case was proven beyond reasonable doubt that Johnny was guilty the jury would most likely find him guilty.

Question 7

What is the difference between a concurrent sentence and a cumulative sentence given in a criminal case in Victoria? Give examples to illustrate your answers.

Key Points.

• Describe a concurrent sentence with an example
• Describe a cumulative sentence with an example
• Explain the difference

Answer 7

A concurrent sentence is when multiple individual sentences, imposed for more than one offence in a case, are to be served at the same time, rather than one after the other. For example, two prison sentences each of five years served wholly concurrently would mean a total of five years in prison whereas a cumulative sentence is when multiple individual sentences, imposed for more than one offence in a case, are to be served one after the other, rather than at the same time. For example, two prison sentences each of five years served wholly cumulatively would mean a total of 10 years in prison. The difference between the two would lie in the decision of the judge to have the offender spend more time in prison in the case of the cumulative sentence as compared to a concurrent sentence.

Question 8

What is a Victim Impact Statement and when is it presented to the court in a criminal case?

key points.

• Explain a Victim Impact Statement
• Discuss when it is presented in court

Answer 8

A Victim Impact Statement is a statement by a victim, presented to the court at the time of sentencing, explaining how the crime has affected him or her. A Victim Impact Statement is used by the court at the plea hearing. The plea hearing is when the prosecution and defence lawyers provide information to the judge or magistrate to help them decide on the most fitting sentence (punishment). The prosecutor gives the judge or magistrate your Victim Impact Statement at the plea hearing.

Question 9

In Victoria the Drug Court and the Koori Court have sought to adopt the therapeutic approach to sentencing offenders who are tried in these courts.

What is the therapeutic approach to sentencing and why would courts use this approach?

key points

• Describe the therapeutic approach
• Explain why the Koori Court and Drug Court would use this method

Answer 9

The therapeutic approach to sentencing is a term given to a process used in the Drug Court and the Koori Court and some specialist divisions of the Magistrates’ Court. This is an approach used when there are health and personal issues which need to be addressed to prevent these offenders from reoffending. A punitive approach is not effective in changing behavior and protecting communities in some circumstances and so these courts will work with the offenders. The Koori Court and the Drug Court found that cultural issues and the impact of the drug ice created new challenges that needed to be dealt with by skilled experts and these courts had the experts working in the area of Drug crime and Koori community law relations.

Question 10

Explain what is meant by the term ‘Diversion Programs’ in the court system of Victoria.

State which courts use this program and which type of offenders is this program intended for.

Key points

• Explain the diversion program
• Identify the courts which use the program
• Describe of the type of offenders the program is intended for

Answer 10

A diversion program is a way to deal with your matter out of the court system and give you a chance to avoid a criminal record. If the magistrate agrees that you are eligible for diversion, you will be put on a diversion plan. You must follow certain conditions in this time. The courts which use this program in Victoria are the Magistrates’ Court and The Children’s Court in cases for summary offences. The types of offenders which this program is intended for are first-time offenders because it allows them to avoid a criminal record.

Question 11

Describe the composition of a criminal jury for an indictable offence case in Victoria.

Explain why extra jurors be empaneled in some trials.

Key points.

• Describe the composition of a jury in a criminal trial.
• Explain the reason why extra jurors can be used.

Answer 11

A jury of 12 people is used in criminal cases in the County or Supreme Court where the accused pleads Not Guilty. Three extra jurors can be empaneled for lengthy trials just in case a situation arises where one of the jury members has to withdraw from trial (e.g. if a juror is ill).

Question 12

There are five purposes of sanctions in Victoria: punishment, deterrence, denunciation, rehabilitation, and protection. In a case where an accused person has been found guilty of a violent homicide, has been in and out of jail since he was 16 (he is now 46), and shows no remorse for his crime or his victims, discuss which of the five purposes would adequately deal with this offender. In your answer, give reasons.

Key points

Include:

• the most likely purposes
• why these purposes would be mentioned
• why other purposes would not be used

Answer 12

A judge would most likely discuss the purposes of punishment, denunciation, and protection, as these would be the most fitting in this situation. Punishment would allow the victims and their families to seek retribution; sending the offender to prison is the ultimate punishment in our society, and in this case, the offender would go to prison for a long time. The second purpose would be denunciation; the court would be sending a message to the community that this type of criminal behavior is unacceptable and not tolerated, which violent crimes in our community are not. The third purpose would be protection, as this would aim to seek to ensure the safety of society by imposing a sanction that will prevent the offender from harming again. The purpose of rehabilitation and deterrence would not be relevant here, as the offender has been in and out of prison and shows no remorse.

Question 13

Explain when the sanction of a fine can be imposed in the State of Victoria, and what things a court must consider before deciding a fine for the accused.

Key points.

• Define the term ‘fine’
• Explain what the court has to consider

Answer 13

A fine is a monetary penalty that is paid by the offender to the State of Victoria; fines are expressed in penalty units, as it makes it easier to keep the law up to date with changes. A fine can be imposed in addition to another sentence. When deciding the fine, the court will take into account the financial circumstances of the offender, loss or destruction of property suffered as a result of an offence, if the offender received any benefit from the offence, and any money or property the offender has already handed over as punishment for the offence.

Question 14

“Every accused has the right to be presumed innocent until proven guilty.” Discuss this statement explaining why the police and individuals need to exercise rights in a criminal investigation.

Key points.

• Discuss individual rights
• Discuss institutional rights
• Explanation of why there needs to be balance

Answer 14

In Victoria everyone has the right to be presumed innocent, this provides all of the community protection via our human rights laws things such as bail rights and court proceedings, but on the other hand the police and other agencies need to have powers to enable them to investigate crime, protect the community and eventually bring offenders to court. These powers are called institutional powers such as collecting fingerprints or starting criminal proceedings against an accused or even questioning suspects. There must be a balance between the two: the rights of individuals, and the powers of the institutions who protect these individuals. However, if these powers are too limited, then crime enforcement and prevention would be impossible in a community. On the other hand, if there is too much power given to these institutions then individuals may be treated unjustly. So, there needs to be a balance between the two in order for society to feel like individuals are being protected and the institutions, such as the police, have the powers to catch the offenders and protect society.

Question 15

Your friend John is trying to give advice to you, he says when using dispute resolution methods, conciliation is the same as mediation.

Key points

• Point of difference
• Explanation of mediation
• Explanation of conciliation

Answer 15

John, the main difference between conciliation and arbitration is the contribution from the independent third party when resolving the dispute. In mediation, the parties themselves will come to some sort of decision or settlement. The mediator (third party) will only aid discussion and keep communication flowing between parties. Mediators DO NOT offer advice or interfere in any way. In conciliation however, the parties will come to their own settlement, but the conciliator (third party) has the same role as a mediator but CAN offer advice. Ultimately, its up to the parties to resolve the dispute in conciliation as well.

Question 16

What is the original civil jurisdiction of the Melbourne Magistrates’ Court?

Answer 16

he Magistrates’ Court can hear civil cases of amounts up to $100 000

Question 17

Discuss one way ‘fairness’ is maintained in civil law cases.

Answer 17

Fairness is basically impartial and just treatment or behaviour without favouritism or discrimination, in a civil case, fairness can be achieved by a number of processes, one which would be…

Question 18

Using an example to illustrate your answer, explain the role of an ombudsman.

Key points.

• Explanation of the role of an ombudsman
• An example including their role in that particular area

Answer 18

An ombudsman is a person who is given the power to investigate complaints and publish recommendations in respect of certain areas of government, the public service and industry.

For example the Financial Services Ombudsman resolves disputes between consumers and financial service providers such as banks or insurance companies.

Other examples could be Telecommunications Ombudsman, Energy and Water Ombudsman or the Victorian Ombudsman.

Question 19

What is the role of a jury in a civil trial in Victoria?

Key points

• Questions of fact
• Apply the law
• Decide fault and damages

Answer 19

The role of the jury in civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. In civil trials, the jury’s role is to decide fault and damages. (Juries in civil trials may also give a special verdict (as well as a general verdict) on a range of issues, for example fair comment, privilege and justification in defamation cases.)

Question 20

Ivanka wrote a bad review for Kim’s Korean Noodle shop on her Facebook page. Kim claims that Ivanka has ruined his reputation and wants her to remove the comment as it is defamatory. Kim says he does not want any money he just wants this civil remedy. What is the civil remedy that Kim is seeking and explain whether you think it should be appropriate in this case.

Key points.

• Correct remedy – an injunction
• A definition of an injunction relating it to the case
• Explanation of whether the injunction is appropriate in this case

Answer 20

The remedy Kim is seeking here is an injunction. This remedy can be used in civil cases as it is a court order requiring that the defendant act in a certain manner. So Kim is asking the court to order Ivanka to remove the comment about his Noodle shop. This is probably appropriate in this case as it cannot be proven if Ivanka’s statements were true or not, or had damaged Kim’s reputation or he lost any customers because of her statement. The court could order that Ivanka remove the statement until there is an opportunity to test the accuracy of the defamatory statement.

Question 21

Discuss methods of dispute resolution that do not involve the courts.

Key points.

Must include:

• The answer should Include: A statement regarding the fact that there are a number of alternative options, and that they don’t have to pursue it through the courts.
• Self help
• Discussion of Mediation and Conciliation (informal)
• Discussion of Arbitration (formal)

Answer 21

There are many options available to a person whose rights have been infringed. They do not have to pursue the matter through the courts. Even if they do take their matter to court, they may still be required to use these other dispute resolution methods during the pre-trial stage. People may take action for themselves to solve their own legal problems or even decide not to pursue the matter. Other than doing it yourself, there are a range of other methods of dispute resolution which people can use to resolve a dispute. These include mediation, conciliation and arbitration where the parties to a dispute are usually willing to participate in an informal (mediation and conciliation) or formal (arbitration) setting with a third party who is not a magistrate or a judge.

Question 22

Explain how a judge/magistrate in a civil case can help achieve equality, one of the principles of justice.

Key points.

• General comment on equality in a civil case
• Description of how a person will be treated equally
• Explanation of how a judge or magistrate achieves this

Answer 22

For everyone to be treated with equality, everyone should have an equal opportunity to present their case. This means that no person or group should be better or worse because of a personal attribute, characteristic or situation.

The processes should be free from bias or prejudice, and the persons who help resolve the dispute should be impartial. In a civil case, the judge or magistrate will be an impartial and unbiased adjudicator.

Question 23

Donald has recently had a civil matter heard in the Magistrates’ Court and feels that the decision should be appealed. He has no idea of where to go next or which court to go to. He knows that you have some knowledge of the system.

Explain to Donald where he can appeal to from the Magistrates’ Court.

Key points.
- Correctly identify the Supreme Court of Victoria as the court would use for a civil
case

• Correctly state the reason for using the Supreme Court of Victoria

Answer 23

Donald, as this is a civil case the court you would have to appeal to would be the Supreme Court of Victoria. You would be appealing on a point of law from the Magistrates’ Court.

Question 24

Explain the role of tribunals as dispute resolution bodies in Victoria and how they achieve the justice of principle of access for anyone who needs to pursue a civil dispute in Victoria.

Key points.

• Explanation of the role of tribunals
• Description of the purpose of tribunals
• An observation of how Tribunals achieve justice through access

Answer 24

Tribunals are dispute resolution bodies which obtain their power from Parliament to resolve certain types of civil disputes. Tribunals develop expertise in particular types of disputes and are able to make decisions for the parties.

The purpose of tribunals is to provide individuals with low-cost, efficient and fast method or dispute resolution. This means that everyone has access to dispute resolution, because they have an option if they cannot afford the time or the money to go to court, and because tribunals are informal, the process will be quite accessible to all people, whether they are educated in law or not.

Question 25

In the case of Bauer Pty Ltd v Rebel Wilson, the Court of Appeal dismissed an application for leave to appeal application brought by Bauer Media Pty Ltd against Rebel Wilson. The Media sought to argue that the aggravated damages were unfair.’ Discuss the above statement explaining which court this case was heard, the civil jurisdiction of this court and describe the remedy of aggravated damages.

Key points.

• Explanation of why the case was being heard in the Court of Appeal
• Description of the jurisdiction of the Court of Appeal
• Explanation of the remedy of aggravated damages with example

Answer 25

As this, Bauer Pty Ltd v Rebel Wilson, is an appeal case from the Supreme Court it was heard in the Court of Appeal. The jurisdiction of this court in civil cases are that it hears appeals against civil decisions made by judges in the Supreme Court and County Court, it also hears appeals of decisions made by judges sitting in VCAT.

The appeal was in regard to the remedy of aggravated damages, these are essentially compensatory in nature, awarded to a plaintiff on a basis of the intangible injury that has been caused to them. Examples include: Humiliation, Damaged self-confidence, anguish, wounded pride and loss of reputation.

Question 26

Compensatory damages are divided into two types of damages. A successful plaintiff may have their compensation calculated via the medical bills they have submitted to the court and also via a calculation of loss of future wages.

Discuss the two types of compensatory damages and their purposes.

Key points.

• Explanation of the purposes of compensatory damages
• Description of special damages
• Description of general damages

Answer 26

The purpose of compensatory damages in civil law is to place a plaintiff as far as possible in the position in which they would have been. Had the wrong not occurred, in this case the defendant would have to pay for the medical bills and then also pay a calculation of the future earnings of the plaintiff because they have been found to have caused the plaintiff a disability which may impact on their future working capability. Compensatory damages may include special and general damages. Special damages refer to ‘those items of loss which the plaintiff has suffered prior to the date of trial and which are capable of precise arithmetical calculation—such as hospital expenses. General damages refer to all injuries which are not capable of precise calculation.

Question 27

Explain how a treaty will make a change (if any) to the rights of the Australian people.

Key points.

• Explain whether Australians are protected
• Discuss how Australians can be protected

Answer 27

If the Australian government is a signatory to a treaty, it does not mean that the rights of the Australian people will be changed. Treaties are not automatically part of Australian law when they are signed. They are however, binding documents. When a government signs a treaty, they create an obligation to write this protection into domestic law. This is done via the legislative process for the protection of all Australians.

Question 28

Discuss the difference between express (or entrenched) rights and implied rights within the Commonwealth Constitution.

Key points.

• Definition of express right
• Definition of implied rights
• Discussion of the difference

Answer 28

Express rights are those rights which are explicitly stated in the Australian constitution. These rights are clearly expressed throughout the Constitution where the nature and extent of these rights are identifiable. On the other hand, implied rights are rights which are not clearly listed in the constitution, but are instead inferred by the High Court. In Australia, there is only one implied right and that is the right to freedom of political communication which was established in a case in 1992; there are a number of express rights within the constitution. Hence the difference is that one is written in plain terms and the other has to be interpreted by the High Court.

Question 29

Outline the role of the high court when there is a question of rights in the constitution.

Key points.

• The first role of the high court
• The second role of the high court

Answer 29

he role of the High Court is to interpret the constitution when a case comes before it, and from this derive meaning from its text and structure.

Question 30

Explain the role of the Victorian Charter of Human Rights and Responsibilities.

Key points.

• Description of the Victorian Charter of Human Rights and Responsibilities
• Explanation of the role of the VCHRR

Answer 30

The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is a Victorian law that sets out the basic rights, freedoms and responsibilities of all people in Victoria. It is about the relationship between government and the people it serves. The VCHRR sets out 20 basic and fundamental human rights, freedoms and responsibilities that are given to Victorians via this Act of Parliament. It recognises the need for government and other bodies to act in conformity with these rights. The Act requires that any member of Parliament who introduces a bill must prepare a statement of compatibility. This statement indicates whether the bill is consistent with the human rights identified in the Charter.

Question 31

A bill of rights is:

Answer 31

a formal declaration of the legal and civil rights of the citizens of any state, country, federation.

Question 32

If Australia had a bill of rights it would:

Answer 32

• strengthen the protection of rights in Australia.
• make governments in Australia more accountable for the improvement of rights legislation.
• improve Australia’s international image.

Question 33

A plebiscite is:

Answer 33

• a direct vote by all members of an electorate on a matter of national significance.

Question 34

Distinguish between a statutory and a constitutional bill of rights

Key points

• Description of a statutory bill of rights
• Description of a constitutional bill of rights
• Use words to describe the distinction between the two bill of rights

Answer 34

A statutory bill of rights is a document where rights are listed and can be altered by an Act of Parliament, whereas a constitutional bill of rights is where rights are explicitly stated in a constitution and can only be changed by referendum.

Constitutional Rights are more important and are very hard to amend.

Question 35

Compare one difference between the protection of rights in Australia with the protection of rights in USA.

key points

• Description of Australian protection
• Description of USA protection

Answer 35

What rights are protected – The US has an extensive list, Australia only a small list. The USA has a bill of rights based on civil and political rights, structural protection and implied rights; Australia does not have a bill of rights and only has a small number of express rights within the Constitution. We also have one implied right, and a number of structural protection in Australia.

Other responses could include the following:

How rights are enforced – The Supreme Court of the United States is able to deem a law invalid if it is against the law making powers of the parliament, much like the role of the High Court of Australia

How are rights amended – A very complex procedure to change the US Constitution much more complicated than Australia (double majority, majority of nation, plus majority of voters in a majority of the states), US tow thirds of Congress plus two thirds majority of the states.

Statutory rights – Like Australia there are a number of Acts of Parliament which protects the rights of US citizens, Civil rights Act 1964, Employment law, Australia – Equal Opportunity Act, Racial Discrimination Act

Common law rights – Similar to Australia, right to silence (Miranda rights in US).

Question 36

List two possible reforms to the protection of rights in Australia.

Answer 36

A possible reform would be introducing a national charter or bill of rights, amending legislation and systems to provide increased protection to minority groups, and increasing the availability of legal aid and assistance.

Question 37

Discuss the impact of the Eddie Mabo case to Australia.

Key points.

• Description of the decision made in the Eddie Mabo case
• Discussion of the impact on Australians

Answer 37

The decision was that under Australian law, Indigenous people have rights to land and that these rights had existed before colonisation and still exist. This right is called native title. Native Title to land is recognised by the common law of Australia. So, where indigenous people had continued living on their land and their customs showed a traditional attachment to their land, they could claim ownership of land under native title. The exception to this is where valid Australian law meant the land was legally owned or used by others. The decision fundamentally altered the legal, political and social relations between indigenous and non indigenous people.

Question 38

Name the four ways Victorian residents are protected by human rights, giving examples.

Key points

• Identify Statute law and give one accurate example
• Identify the VCHRR and give one accurate example
• Identify Common law and give one accurate example
• Identify the Constitution and give one accurate example

Answer 38

People who live in Victoria are protected by Statute law for example Equal Opportunity law, The Victorian Charter for Human Rights and Responsibilities (VCHRR), Common Law for example the right to silence, The Australian Constitution through implied, express and structural rights.

Question 39

Briefly outline how the Australian Constitution protects Australian human rights.

Answer 39

The Commonwealth Constitution provides express rights, implied rights and structural protection for all Australians. Other protections include the role of the High Court as a guardian of the Constitution and Section 128 of the Constitution which outline the referendum process.

Question 40

Your friend Pauline believes refugee rights have been infringed and wants to know how she can protect their rights in Australia. Give Pauline some advice describing the role of individuals in bringing about changes in the law through cases in the area of human rights.

key points

• Description of the role of the High Court.
• Description of the accessibility of the High Court and individual cases

Answer 40

Pauline, the primary role of the judicial system is to enforce rights. People can take a matter to court if they feel that their rights have been infringed. One of the roles of the High Court as guardian of the Australian Constitution is to hear disputes arising under its jurisdiction, which includes questions relating to rights under the constitution that it has the power to interpret, if you can prove that the refugees rights have a case regarding the constitution. The High Court can also hear matters on appeal from lower courts through applications to enforce rights. However taking a matter to court is not accessible to everyone as there are limits to the court’s jurisdiction to hear disputes. For a matter to be taken to court, there is a requirement for the matter to have actual and substantial rights infringements or concerns. A person bringing the case must have a standing that is they have to show that their position is worsened by the rights infringement and have something to gain having the matter rectified. The process can be expensive and time consuming. For example, the Mabo case.

Question 41

Discuss how statutory rights protect the principles of justice?

Key points
- Discussion of equality and fairness

• Discussion of access

Answer 41

Statutory rights are rights that are made and can be amended through the legislative process by members of parliament. These rights are subject to interpretation by the courts, and as such can be kept up to date. Statutory rights are regarded as more extensive than the rights provided by the Constitution and provide more specific, individual rights and ensure that citizens are treated with equality and fairness where the law is concerned. They are enforced by the courts and VCAT, most cases related to rights are free thus allowing for greater access to rights.