Session 3 Flashcards
What does natural justice refer to?
Natural justice refers to the rules and procedures that ensure fairness.
What is natural justice also known as?
Procedural fairness.
Who must follow natural justice?
Person or body which has the power to resolve disputes.
What does natural justice require?
A procedural fair hearing and an unbiased decision.
What are the five elements of natural justice?
Fairness, transparency, equality before the law, freedom of bias and the right to be heard.
Why is fairness an element of natural justice?
It removes prejudice.
What does transparency mean when it comes to natural justice?
It means the courts remain open.
How does transparency (element of natural justice) affect the media?
Media can publish information about what goes on in the courts.
What does the media being able to publish what goes on in courts ensure?
Minimal corruptions.
What does equality before the law mean?
The law is evenly applied regardless of social standing.
Should the law mean the same thing to everyone?
Yes.
What does freedom from bias mean?
We have decision makers who are impartial.
What are the three ways that natural justice is achieved?
Ensuring procedural fairness, ensuring decisions are made by objective decision makers and the decision being made on logical proof or evidence.
What is ensuring procedural fairness known as?
The hearing rule.
What is ensuring decisions are made by objective decision makers known as?
The bias rule.
What is the fact that decisions must be made on logical proof or evidence known as?
The evidence rule.
Is natural justice done by ensuring procedural fairness?
Yes.
What three rights ensure procedural fairness?
Right to be heard, right to be advised of allegations in detail and the right to reply to allegations.
When does the right to be heard apply?
If you choose to testify.
Can an accused person sit in the witness box?
Yes.
Do you have the right to remain silent?
Yes.
Should not testifying make difference about whether someone is viewed as innocent or guilty?
No.
Is someone not testifying a consideration when deciding a verdict?
No.
Natural justice is achieved by ensuring fair decision are made by whom?
Objective decision makers.
Third party decision makers are removed from?
The case.
Do judges and juries have separate roles for a reason?
Yes.
What does the judge determine?
Law.
What does the jury determine?
Fact.
Can a person judge their own case?
No.
Does a victim always have a say on whether charges are pressed?
No.
Why is the victim removed from the justice process?
Because it is the difference between hot and cold justice.
What is hot justice driven by?
Emotions.
What would hot justice lead to?
A harsher outcome.
Does our justice system use hot or cold justice?
Cold justice.
What is cold justice driven by?
Impartial decision makers and leads to a fairer decision for all parties involved.
Should investigators act with bias?
No.
Should decision makers act with bias?
No.
Should even the appearance of bias be avoided?
Yes.
What is an example of bias in the justice system?
A judge having a relationship with a prosecutor.
What does the right to be heard relate to?
Rule of law.
Is there a requirement of the right to be heard?
No.
Do you have to testify if you don’t want to?
No.
Can you testify if you want to?
Yes.
Does natural justice and the rule of law overlap?
Yes.
Are natural justice and rule of law both necessary parts of our system?
Yes.
Why are natural justice and rule of law necessary parts of our justice system?
To ensure fairness.
Natural justice is done by ensuring decisions are based on?
Logical proof or evidence.
Is proof needed to show that a person is actually guilty of a crime?
Yes.
Are there strict procedures for evidence?
Yes.
Does evidence need a chain of custody?
Yes.
Is evidence’s chain of custody recorded?
Yes.
Are there strong rules on the admissibility of evidence?
Yes.
When does one party’s evidence have to be given to another?
Before trial.
If new evidence emerges, what may occur in a trial?
An adjournment.
Why may an adjournment occur if new evidence arises?
For the other side to process information and construct an argument.
Is there the cross examination of evidence?
No.
What does the right to be advised of allegations in detail?
The crown (prosecution) must inform of charges, specific elements of charges and provide sufficient time to make a defence and to prepare case with a legal team.
Do you need preparation before there is a court date?
Yes.
What does time before the court date allow?
Time to gather evidence and go through prosecution’s evidence to build a solid case.
Is there the right to reply to allegations?
Yes.
In adversarial systems, is there the cross examination of witnesses?
Yes.
What is judicial independence?
Judicial independence is the independence of a justice system.
According to judicial independence, the justice system is separate from?
Other arms of government.
What is the benefit of judicial independence?
It means those who administer justice are separated from sources of power and influence (like lobby groups or politics).
What does judicial independence give confidence to?
The idea that court cases are actually decided from the laws that exist.
What would the absence of judicial independence affect?
The just and impartial working of the system.
What is due process?
Due process is the proper legal means of doing something related to a case.
What is due process also called?
Procedural fairness
Does the delivery of natural justice depend on due process?
Yes.
The delivery of natural justice depends on three things. What are they?
Presumption of innocence, right to trial by jury (for serious offences) and evidence not being admitted if obtained through illegal means.
Does due process always occur?
No.
What is one example of due process not occurring?
Cornelia Rau.
Who was Cornelia Rau?
A schizophrenic woman mistakenly held behind bars.
What rights does natural justice protect?
The rights of all parties involved.
Does Australia have a bill of rights?
No.
this implied freedom offers little protection.
Does Australia have explicit constitutional protection of a free media?
No.
What kind of freedom of speech does Australia have?
Implied freedom.
How has Australia’s implied freedom of speech changed in recent years?
It has been read down over the course of many decision.
Does the implied freedom of speech offer much protection?
Little.
What is court reporting about balancing?
The rights of the accused and rights of the public.
Does the media have a relationship of privilege or right?
Privilege.
There needs to be an adequate reporting of court proceedings to avoid two things. What are they?
Defamation or contempt.
What should the reporting of court proceedings be?
Adequate.
Should the reporting of court proceedings be balanced?
Yes.
How should the reporting of court proceedings be balanced?
It should include the prosecution and the defendant’s case.
What assists the adequate reporting of court proceedings?
Court transcripts.
Can the facts of the case be reported?
Yes.
How do facts have to be presented?
As they appear in open court.
What does the reporting of court proceedings stem from?
The principle of open justice and Scott v Scott.
Can there be an accurate reporting of proceedings?
Yes.
Can the names and particulars of accused (once charged) be published?
Yes.
Can the names and details of victims be published?
Yes.
Can the names and details of witnesses be published?
Yes.
Can the presiding judge of a case be published?
Yes.
Can the defence counsel of a case be published?
Yes.
Can the prosecutor of a case be published?
Yes.
Can the facts of a case be published?
Yes.
Can family court matters be published?
No.
Can the identity of sex crime victims be published?
No.
Can the identity of first time defendants be published?
No.
Can the identity of criminals aged 10-16 years be published?
No.
Can the identity of child victims be published?
No.
Can the identity of child witnesses be published?
No.
Can certain proceedings related to terrorism be published?
No.
What are closed proceedings called?
In camera.
Can closed proceeding be published?
No.
What are the four main things there are reporting restrictions on?
Sex offence victims, sex offence accused, family court and juveniles.
For most types of cases, can you name the victim?
Yes.
For sexual offences, can the complainant be identified?
No.
For sexual offences, can you mention the name of the complainant?
No.
For sexual offences, can you mention the address of the complainant?
No.
For sexual offences, can you mention the school of the complainant?
No.
For sexual offences, can you mention the employment of the complainant?
No.
Why can’t victims of sexual offences be identified?
They are viewed as a special category.
Why are the victims of sexual offences viewed as a separate category?
This is due to potential embarrassment or further victimisation.
What piece of legislation forbids disclosure by any means that identifies a complainant in a prescribed sexual offence case?
Criminal Law (Sex Offences) Act 1978 [Qld].
What is the penalty for identifying a complainant in a prescribed sexual offence case?
Steep fine or two years’ jail for an individual.
How is the penalty for identifying a complainant for a prescribed sexual offence increased for a corporation?
x 10.
When can a victim of a sexual assault be named?
If they wish to be and give formal consent in writing.
When can a person accused of a sexual assault be identified?
After the committal hearing for a sex offence (unless there is approval by the judge).
What are the rules about naming a person accused of sexual offence under?
Criminal Law (Sex Offences) Act 1978 [Qld].
What does the legislation about identifying a person accused of sexual offences refer to?
Prescribed sexual offences.
What are prescribed sexual offences?
This relates to prescribed sexual offences which are rape, attempt to commit rape, assault with intent to commit rape or an offence defined in s 352 of the Criminal Code.
What is the penalty for identifying someone accused of a criminal offence?
The penalty includes a steep fine or two years jail for an individual.
Until after a committal hearing, can the name of a person accused of a sexual offence be published?
No.
Until after a committal hearing, can the address of a person accused of a sexual offence be published?
No.
Until after a committal hearing, can the school of a person accused of a sexual offence be published?
No.
Until after a committal hearing, can the employment of a person accused of a sexual offence be published?
No.
What what the protections of those accused of a sexual offence driven by?
Scott Volkers.
Who was Scott Volkers?
He was prominent swimming instructor who faced sexual assault charges.
Should you report on family court?
No.
What publishing relating to family court is forbidden?
Media reporting that identifies (by any means) a party to a family law proceeding is forbidden.
What is the penalty for publishing material relating to family court?
One year imprisonment.
What is a child (in all states but Queensland)?
Anyone below the age of 18.
What is a minor in Queensland?
Anyone aged under 17.
Can a child under 10 be charged with crimes?
No.
Why can’t children under 10 be charged with crimes?
They can not establish mens rea.
If a juvenile is between 10-17 and accused of a crime can you identify them?
No (in most cases).
What kind of courts can children appear in?
Children may appear in child’s courts or an adult court.
When you identify a child accused in court?
When you have the permission a judge.
Why can’t you identify a child accused of crime?
To assist with rehabiliation.
Can you identify a child perpetrator of crime?
No.
As of 2002, a Queensland Court may permit the publication of identifying information of a minor whose first conviction is what?
A serious crime.
When can the information about a juvenile accused of a serious offence be published?
If it is considered such publication would be in interests of justice.
If you want to publish information about a juvenile accused of a crime, what must you have?
Specific permission from court judge.
What must be considered when considering publishing information on a juvenile accused of a crime?
A need to protect the community, safety/well being of a person other than the child, impact of publication on child’s rehabilitation and any other relevant matters.
Can you identify juvenile victims?
No (in most cases).
Can you identify juvenile witnesses?
No (in most cases).
Can you report on juvenile victims if they are deceased?
No.
Have the laws on reporting on juvenile victims changed post Daniel Morcombe?
Yes.
Who were laws on naming child victims changed?
Elliot Fletcher.
Who was Elliot Fletcher?
Boy who was stabbed at his school in Brisbane. That was heavily reported on and caused distress to the school and family.
Can child witnesses be named in family court proceedings?
No.
Can child witnesses be named when it comes to sexual based offences?
No.
Can child witnesses be named outside of family court and sexual based offences?
Yes.
What is an injunction?
An injunction is where a court orders a person to do (or refrain from doing) a particular thing.
What is an example of a injunction in a defamation case?
An example is a court may order in a defamation case that you publish an apology.
What are three types of injunctions?
Interim, interlocutory and perpetual.
How long is an interim injunction?
For a short time.
What is an example of an interim injunction?
Injunction before a matter comes before the court.
How long is an interlocutory injunction?
Intermediate length.
What is an example of an interlocutory injunction?
Until the trial of an action is completed.
How long is a perpetual injunction?
This can be open ended.
What is a writ?
A writ is a document commands a person to do (or to refrain from doing) something by order of a court.
How is an injunction performed?
In the form of a writ.
What is a writ used for?
To commence an action in court.
What are suppression orders a type of?
Injunction.
Why are suppression orders granted by a court?
To restrain publication of certain sensitive or untested details.
What are suppression orders also known as?
Gag orders. This may be viewed as a breach of a free society.
What can suppression orders be viewed as a breach of?
Free society.
What does a prior restraint order prevent?
A prior restraint order (or pre-publication censorship) prevents nominated material or details from being heard or distributed at all.
