Practice exam unit 2 - 102 Flashcards
Outline the principles of justice: fairness, equality and access. (3 marks)
The legal system aims to provide justice through universal fairness, equality and access for all citizens. The principle of fairness involves impartial treatment for all parties involved in the legal process, which means they are not treated in a biased way. This principle is enshrined in a number of pieces of legislation. Equality involves all citizens being treated equally or uniformly, that is, they have equal legal opportunities. Access refers to an individual being able to obtain legal advice and to participate in the legal process.
Describe the criminal jurisdiction and civil jurisdiction of the County Court. 4 marks
Key points
- 2 marks for outlining the original and appellate criminal jurisdiction of the County Court
- 2 marks for outlining the original civil jurisdiction of the County Court and stating that it has no appellate civil jurisdiction
The County Court has the power to hear a broad range of criminal cases and some criminal case appeals. It can hear all indictable offences except for those that are reserved for the Supreme Court, including treason, murder and manslaughter. Examples of criminal cases that can be heard in the court include armed robbery, serious assault and culpable driving. The County Court can also hear criminal appeals from the Magistrates’ Court and the criminal and family divisions of the Children’s Court. The County Court also has civil jurisdiction. The court has unlimited civil jurisdiction and can hear a wide range of cases such as negligence and defamation cases. The court does not have civil appellate jurisdiction.
Marking guide:
Distinguish between the role of a jury in a criminal trial and in a civil trial. 4 marks
Marking guide:
- 2 marks for outlining features of the role of a jury in a criminal trial
- 2 marks for outlining features of the role of a jury in a civil trial, showing the difference between the two roles
When an accused pleads ‘not guilty’ in a criminal case the case is heard by a jury in the County Court or the Supreme Court. An accused in a criminal trial is presumed innocent until proven guilty. The role of a jury in a criminal case is to listen to the evidence presented and then decide on a verdict of either ‘guilty’ or ‘not guilty’ based on the high standard of proof placed on the prosecution of ‘beyond reasonable doubt’. This is different from the role of a jury in a civil trial. In a civil jury trial in the County Court or the Supreme Court a jury listens to the evidence presented by both the plaintiff and defendant and determines on the ‘balance of probabilities’ which version is likely to be true. Hence a civil trial jury will find in favour of the plaintiff or defendant and the standard of proof in a civil trial is not as high as that in a criminal trial. In civil cases a jury is optional.
Outline one purpose of sanctions in criminal law.
Marking guide:
1 mark for outlining one purpose
There are a number of purposes of sanctions in criminal law. One sanction is punishment. The means that a person who has been found guilty of a crime is punished, which can take a number of forms including a jail sentence or fine.
Another purpose of a sanction is to protect the community. This means that the community in general is safe as the offender has been removed from society for a period of time (usually by means of a jail sentence).
Note: Other purposes include deterrence, denunciation and rehabilitation (any can be described).
Compare one feature of sentencing practices in Victoria with that of a different
jurisdiction you have studied this year.
Marking guide:
- 1 mark for explaining what sentencing practices means
- 1 mark for describing one feature of sentencing practices in Victoria
- 2 marks for showing how the feature of sentencing practices in Victoria compares with that of another jurisdiction
Note: This is one of a number of possible answers to this question.
There are a number of sentencing practices in Victoria that are taken into consideration when a person is convicted. These practices include taking into account any maximum penalties, current approaches to sentencing within the court system, the nature and gravity of the offence, the offender’s character, the impact of the crime on the victim and the offender’s culpability.
In Victoria there are mandatory sentences. This applies to a number of offences such as intentionally or recklessly causing harm to a person. In some instances the Crimes Act provides for mandatory imprisonment with minimum non-parole periods, although there are some exemptions. This can be compared with mandatory sentencing in NSW. In NSW there are two offences where mandatory sentencing applies; these are for murdering a police officer and assault causing death when drunk. If a person is intoxicated and causes the death of another person then there is a minimum eight-year sentence.
Identify and describe one institution, other than a court, that can resolve civil disputes.
One institution that can resolve civil disputes is the Victorian Civil and Administrative Tribunal (VCAT). It is the largest tribunal in Victoria and can hear a range of civil disputes such as civil claims, planning, building and tenancy disputes. There are a number of divisions of VCAT that specialise in different types of cases and disputes. Specialist divisions include the Civil Division, the Administrative Division, the Residential Tenancies Division and the Human Rights Division. VCAT allows citizens to have disputes heard in a more timely and less costly manner than the courts.
Other institutions:
- Victims of Crime Assistance Tribunal
- Mental Health Tribunal
- Ombudsmen: Commonwealth Ombudsman, Fair Work Ombudsman, Telecommunications Industry Ombudsman, Victorian Ombudsman, Public Transport Ombudsman, Energy and Water Ombudsman, Telecommunications Industry Ombudsman, Financial Ombudsman Service, Credit and Investments Ombudsman
• Complaints bodies: Consumer Affairs Victoria, Disability Services Commissioner, Health Complaints Commissioner, Victorian Equal Opportunity and Human Rights Commission, Estate Agents Resolution Service, Police Conduct Unit, Accident Compensation Conciliation Service.
Explain two methods used to resolve civil disputes that are less formal than judicial
determination.
Marking guide:
- 1 mark for identifying each method (x two = 2 marks)
- 2 marks for defining the method and identifying its features (x two = 4 marks)
There are a number of methods that can be used to resolve civil disputes that are less formal than judicial determination. One method that can be used is mediation, which is a process in which the parties to a dispute use the services of a trained, independent mediator to help them negotiate a resolution to the dispute. The mediator does not make suggestions or take sides; their role is to keep the parties on track and help guide their discussion towards a mutually agreed resolution.
Another method is arbitration. This is a more formal process than mediation and the two parties to the dispute must agree to take part in the process. The arbitrator listens to the evidence and information presented by each party and then makes a decision. Both parties are bound by the arbitrator’s decision. Arbitration is used when a civil claim has been lodged with the Magistrates’ Court and the amount involved is less than $10 000.
Compare Australia’s approach to the protection of rights with that of another country you
have studied this year.
Marking guide:
2 marks for explaining the similarity(ies) between this approach and the other country’s approach to the protection of rights
2 marks for explaining the difference(s) between Australia’s and the other country’s approach to the protection of rights
Australia has rights protected through the Australian Constitution, statute law and the common law. This can be compared to the protection of rights in India. There are a number of rights protected in the Indian Constitution, including political principles, the structure, power and procedures of government institutions, and the rights and duties of citizens. This is similar to Australia as rights are expressly set out and cannot be changed by parliament, and similar to Australia the legislature, judiciary and executive functions are all separate. In addition, there are other statutory rights and common law rights. However, the express rights in the Australian Constitution are not identical to those in the Indian Constitution. Also, while the Australian Constitution has some implied rights, such as freedom of communication of political matters, the Indian Constitution confers comprehensive and specific rights to its citizens. In addition, while there are many similarities in the approaches to rights protection in India and Australia, there is also one very distinct difference. India has bill of rights while Australia does not have one. The bill of rights sets out a number of rights including the right to equality, the right to freedom, the right to religious freedom, and cultural and educational rights.
