unit 2 exam Flashcards
role of police in enforcing criminal law
the role of the police is to serve the community & enforce the law to promote a safe, secure, orderly society, by:
- talk to victims/ witnesses about what happened
- question suspects
- look for evidence
- charge people with offences
role of victorian criminal courts
- determine a criminal case, by deciding if the accused is guilty
- imposing a sanction if a person is guilty
criminal jurisdiction of magistrates court
- original: summary offences, indictable offences heard summarily, committal proceedings, bail and warrant applications
- No appellate jurisdiction
criminal jurisdiction of county court
- original: indictable offences except murder, attempted murder, certain conspiracies, corporate offences
- appellate: from magistrates court on a conviction or sentence
criminal jurisdiction of supreme court (trial division)
- original: serious indictable offences
- appellate: from magistrates court on a question of law
criminal jurisdiction of supreme court (court of appeal)
- no original jurisdiction
- appellate: from the county or supreme court (with leave)
criminal jurisdiction of childrens court
- original: offences committed by children between 10 and 17 years (except for certain offences)
- no appellate jurisdiction
criminal jurisdiction of coroners court
- original: investigation of deaths and fires
- no appellate jurisdiction
role of juries in a criminal trial
the role of the jury is to:
- listen to all the evidence
- concentrate during the trial
- piece the evidence together and decide whether the accused is guilty or not
how do criminal juries achieve the principles of justice
- jurors are independent & impartial (equality and fairness)
- fairness: requires jury to deliberate based on evidence, spreads the responsibility
- jurors don’t give reasons for decisions, some may question fairness
- jurors may be influenced by lawyers (threatens fairness)
- jurors may be biased (threatens equality)
purposes of sanctions
- punishment
- deterrence
- denunciation
- protection
- rehabilitation
purpose of sanctions - punishment
a strategy designed to penalise the offender and show the community that behaviour won’t be tolerated
purpose of sanctions - deterrence
general deterrence- process where the court can discourage the offender and others in the community from committing similar offences
specific deterrence- process where the court can discourage the offender from committing similar offences
purpose of sanctions- denunciation
process by which a court can demonstrate the communities disapproval of the offenders actions
purpose of sanctions- protection
strategy designed to safeguard the community from an offender in order to prevent them from committing further offences
purpose of sanctions- rehabilitation
strategy designed to reform an offender in order to prevent them from committing offences in the future
types of sanctions
- fines
- imprisonment
explain fines (type of sanction)
- a fine is a sanction that requires the offender to pay a sum of money to the state of victoria.
- expressed in penalty units from 1-3000
- can be imposed in addition to another sentence.
how do fines achieve the purposes of sanctions
- general and specific deterrent if high enough
- punishment if it is a burden on the offender
- demonstrate the court’s disapproval
- may not be a general deterrent as many fines dont get reported
- won’t rehabilitate unless imposed with another sanction
- may not be a general deterrent if offender has the capacity to pay
how does imprisonment achieve the purposes of sanctions
- imprisonment protects the community and punishes the offender, as it removes the offender from the community.
- deterrent, both generally and specifically, as they are widely reported
- rehab depends on the offender
- high rates of re-offending show that imprisonment may not be effective
factors considered by judges in sentencing
aggravating factors: circumstances considered in sentencing that can increase the seriousness of the offence or the offenders responsibility, resulting in a more severe sentence
mitigating factors: factors considered in sentencing that reduce the seriousness of the offence or the offender’s responsibility and lead to a less severe sentence
mitigating factors
- if the offender is acting under duress
- prospects of rehabilitation
- personal strain the offender was under
- lack of injury or harm caused by the offence
- full admissions made by the offender
aggravating factors
- the use of violence or explosives
- the offence taking place in front of children
- the offender being motivated by hatred or prejudice
- offender being in a position of trust and has breached that trust (eg. parent and child)
explain mediation
- a method of dispute resolution, using an independent third party (mediator) to help the disputing parties reach a resolution
- the parties in dispute sit down and discuss the issues they disagree on and try to reach an agreement through negotiation
- this is done with the help of a mediator, who is neutral and impartial, the mediator discusses the issues with the parties and empowers both parties
- mediator is not trained in law but does need good people/ conflict resolution skills
tribunals as institutions that resolve civil disputes
- Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.
- Tribunals develop expertise in particular types of disputes and are able to make binding decisions on the parties.
- provide individuals with a low cost, efficient method of dispute resolution process –> increase access to justice
- there are commonwealth and state tribunals - Fair work commission (cth), VCAT (victorian)
complaints bodies as institutions that resolve civil disputes
- provide free complaints and dispute resolution service, designed to hear complaints from individuals and small businesses about services or goods provided to them
- do not have the power to conduct a hearing or make binding decisions on the parties, services are limited to offering free dispute resolution services where parties disagree
- consumer affairs victoria
how can institutions achieve the principles of justice
access:
- low costs
- provide alternative methods of dispute resolution other than courts
- services are freely available
equality:
- dispute resolution processes are independent and impartial
- the informality of the process helps parties to feel at ease
fairness:
- dispute resolution processes are independent and impartial
- dispute bodies are often specialised in certain areas of law
- cannot create binding precedents, so there may be inconsistencies in the way matters are dealt with, decreasing fairness
role of victorian courts in civil cases
to determine liability and decide on the remedy
determine liability:
- judge or magistrate considers the evidence and determines whether the defendant has caused loss or harm to the plaintiff, on the balance of probabilities
- judge or magistrate will also have to decide if the plaintiff is liable for the counterclaim
- the judge or magistrate is the decider of facts
- court will provide specialisation & expertise, manage the case and hear appeals
civil jurisdiction of victorian courts
magistrates:
- original- claims up to $100 000
- appellate- n/a
county:
- original- unlimited
- appellate- n/a, unless given under a specific act of parliament
supreme (trial div)
- original- unlimited
- appellate- on a question of law from magistrates court and VCAT
supreme (court of appeal):
- original- n/a
- appellate: from county, supreme or VCAT when constituted by the president or vice president
role of juries in civil cases
to consider the facts of the case and decide who is most likely in the wrong
- decision made on the balance of probabilities
- if a unanimous verdict cannot be reached, then a majority verdict (5 out of 6) will be accepted
similarities between civil and criminal juries
- both allow the community to be involved
- both have to listen to the evidence and make a decision based on the facts of the case
- both must come to either a unanimous or majority verdict
differences between civil and criminal juries
- no automatic right to a jury in a civil trial, unlike there is in some criminal cases
- majority verdict is accepted for civil trials, whereas a unanimous verdict is needed for most criminal trials
- parties must pay for a jury in a civil trial, which can be expensive
- 12 jurors criminal, 6 jurors civil
- decision made on the balance of probabilities in civil law, beyond reasonable doubt in criminal law
purpose of civil remedies
- to restore the party who has suffered loss or injury to the position they were in before it occurred
- usually damages (money)
- two types of remedies: damages and injunctions
explain civil remedies (damages & injunctions)
- damages: an amount of money to be paid by the defendant to the plaintiff. main purpose of damages is to compensate the plaintiff for losses suffered. specific, general and aggravated
- injunctions: a type of civil remedy when the court makes an order for the defendant to undertake an action or do something, in an attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered. two types:
–> restrictive: stopping someone from doing something
–> mandatory: sought when a person wishes to compel someone to do a particular act
effectiveness of damages and injunctions in achieving the purposes of remedies
- effectiveness of damages and injunctions depend on the facts of the case, and the loss that the plaintiff has suffered.
- main purpose of damages is to compensate for losses suffered
- general damages aim to compensate for pain and suffering
- specific damages compensate for items that can be calculated objectively
- aggravated damages compensate the plaintiff further if the defendant has caused humiliation
> the type of loss that has been suffered (economic or non-economic)
> has the plaintiff suffered physical injury (specific)
> has there been loss of life?
> is there another remedy better for the plaintiff? - injunctions attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered.
- restrictive: aim to stop someone from doing something
- mandatory: compel someone to do something
> whether the defendant has caused too much damage
> whether the defendant will comply with the injunction
> what about compensation for time, stress and inconvenience of court proceedings?
> is there another remedy that is better for plaintiff?
reasons for court hierarchy
- appeals: parties can appeal a case to a higher court if they are not satisfied with the decision
- specialisation: courts develop expertise in certain types of cases
- doctrine of precedent courts can make laws (precedent) based on decisions made during cases which are binding on lower courts
- administrative convenience: allows smaller cases to be heard in the magistrates court, and more complex cases to be heard in county or supreme
strengths of mediation
- a decision made by the parties is more likely to be acceptable to the parties, as they have reached the decision themselves
- more informal than a courtroom
- less confrontational
- more flexibility
- more affordable than a court case
weaknesses of mediation
- participation and willingness of the parties is required to be successful
- decisions are not binding
- mediator has no power to order the parties to come to a decision
- not appropriate for some disputes
- mediator is not able to give advice or offer suggestions
strengths of the courts to resolve civil disputes
- judges are impartial who make decisions based on facts and law- fairness
- reduce delays through case management
- judges have specialised knowledge because of court hierarchy, ensuring fairness and expertise
- courts can make binding decisions ensuring certainty in the outcome
weaknesses of the courts to resolve civil disputes
- can be expensive due to the need for legal representation
- can be delays
- formality of the process can result in feeling stressed or intimidated
- without legal representation, which can be expensive, a party can be disadvantaged in presenting their case
influence of international declarations and treaties on the protection of rights (example)
- international treaty: an agreement between countries to be bound by international law.
- declaration: a document that outlines a set of standards that nations voluntarily agree to.
- The rights that Australia protects are often influenced by international declarations and treaties such as the Universal Declaration of Human Rights.
- commonwealth gov gives its commitment to uphold a range of international human rights treaties by becoming a signatory. for the treaty to become law, the nation must pass legislation to approve and adopt rights outlined in the treaty –> ratification
- eg. international covenant on civil and political rights
