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Legal > Unit 3 > Flashcards

Unit 3 Flashcards

1
Q

what is a crime

A

an act or omission that:
-breaks an existing law
-is harmful to an individual or society as a whole
-is punishable by law
crimes act 1958

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2
Q

the rule of law

A

the principle that everyone in society is bound in law and must obey the law, and that laws must be clera so that people want to obey them

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3
Q

the rule of law upheld by

A

-clear and accessible laws
-courts and judges must be independent
-the law being equally applied to everybody
-presumption of innocence

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4
Q

purposes of the criminal justice system

A

-deciding whether an accused is guilty of an offence
-imposing a sanction

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5
Q

jago statement

A

the right to a fair trial is not limited to just the trial itself

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6
Q

dietrich statement

A

a lack of fair legal representation when defending an indictable offence may result in an unfair trial

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7
Q

presumption of innocence

A

a lack of fair legal representation when defending an indictable offence may result in an unfair trial

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8
Q

presumption of innocence maintained by

A

-hight sop
-imposing bop on the prosecution
-bail

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9
Q

Statutory Rights for an Accused

A

-the right to be tried without unreasonable delay (section 21(5) hrc)
-the right to a fair hearing (24 (1) hrc)
-the right to a trial by jury (80 of aus constitution and statute law)

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10
Q

bail

A

the release of an accused person from custody on the condition that they will attend a court hearing to answer the charges

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11
Q

Right to give evidence as a vulnerable witness

A

generally children, people with cognitive impairements, and victims of sexual abuse and domestic violence

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12
Q

vulnerable witness protections

A

-witnesses may give evidence from a place other than the courtroom
-screens may be used to remove the accused from the witness’ direct line of sight
-a support person may be used
-legal practitioners may be required to dress more casually or remain seated during questioning

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13
Q

vla

A

the vla is a government agency that provides free legal advice to the community and low or no-cost legal representation to those who cannot afford it
most critical role: to provide legal aid to accused people

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14
Q

vla methods of assistance

A

-free legal aid (available to everybody)
-free legal advice (focused on people who need it the most)
-free duty lawyer services (fact sheets = everybody, advice = people who pass the income test, representation = income test, vla priority and/or serious charge)
-grants (pass the means tes)

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15
Q

income test (vla)

A

-pass if they can produce a current Centrelink benefit card or prisoner concession card
-for people who need legal advice from a duty lawyer on a particular day

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16
Q

means test (vla)

A

-sets thresholds for an applicant’s income and assets as well as their expenses and legal costs
-for people seeking grants of legal assistance during the trial process

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17
Q

merits test (vla)

A

a threshold test which must be satisfied in most Commonwealth law matters

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18
Q

vla criticisms

A

-not enough funding to meet demands
-a large part of the community is ineligible

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19
Q

clcs

A

clcs are independent organisations that provide free legal services, including advice, information and representation to people who cannot access other legal services

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20
Q

generalist clcs

A

provide broad legal services to people in a particular geographical area

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21
Q

specialist clcs

A

focus on a particular group of people or area of law

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22
Q

clcs types of assistance

A

-basic legal information
-initial legal advice
-duty lawyer assistance
-legal casework

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23
Q

clc eligibility criteria (general)

A

-type of legal matter
-whether other assistance is available
-whether the person has a good chance of success
-whether the accused can manage the case without assistance

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24
Q

committal proceedings purpose

A

-criminal procedure act 2009
-determine whether evidence is of sufficient weight to support a conviction by a jury at a trial
-determine how the accused plans on pleading

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25
Q

committal proceedings strengths

A

-saves time and money
-can assist the accused in deciding on a plea
-supports presumption of innocence
-prosecution can drop charges

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26
Q

committal proceedings weaknesses

A

-complicated process, especially without representation
-can add to the delay
-contribute stress and trauma for the accused/victims

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27
Q

vlrc recommended reform for committal proceedings

A

-case management systems should be used between courts
-test for committal should be abolished

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28
Q

plea negotiations

A

pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome

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29
Q

plea negotiations outcomes

A

-the accused pleads guilty to fewer charges
-the accused pleads guilty to a charge with agreements made about the facts of the case
-the accused pleads guilty to a lesser charge

30
Q

plea negotiations strengths

A

-save the cost of a trial or hearing
-help with the prompt determination of criminal cases
-accused may receive a reduced sentence

31
Q

plea negotiations weaknesses

A

-save the cost of a trial or hearing
-help with the prompt determination of criminal cases
-accused may receive a reduced sentence

32
Q

sentence indications

A

statements made by a judge to an accused about the sentence they could face if they plead guilty to an offence

33
Q

new reforms to sentence indications

A

-must take place before a trial commences
-no prosecutor consent needed
-can be given multiple times

34
Q

role of judge

A

-managing the trial
-deciding on the admissibility of evidence
-attending to jury matters
-giving directions to the jury
-handing down a sentence

35
Q

role of jury

A

-take part in deliberations
-consider the elements of the crime
-deliver a verdict

36
Q

sanctions purpose

A

-rehabilitation
-punishment
-deterrence
-denunciation
-protection

37
Q

koori court expansion (2020) (implemented reform to criminal law)

A

f
-emphasises koori court importance
-sentence is still handed down by the judge
-not well enough established
a
-enables greater access to the koori court system
-does not address other issues such as access to information
e
-addresses the disadvantage faced by Indigenous australians
-sentencing only court, not available to everybody

38
Q

victim support dog program (2019)

A

f
-intended to help see witnesses and victims deliver their evidence in a calm way
-jurors do not see the dog and so do not get influenced by their presence
a
-enable greater access to vulnerable witnesses
-witnesses may be more prepared to give evidence
e
-measures taken to make sure there is no inequality suffered
-seeks to provide assistance to vulnerable witnesses who are more at risk of suffering secondary trauma

39
Q

Judge alone trials (recommended reform)

A

f
-fairness issues faced by judges in higher profile cases
-delays as a result of COVID-19 subverted
a
-allows the judge (most exprienced professional) to be the decider of facts
-may deny a person of recieving a trial from a member of their peers
e
-a high profile person may be at a disadvantage because of media coverage, jury may be bias
-also may be seen as giving advantage to a high profile person

40
Q

increased funding to legal services (recommended reform)

A

f
-would increase access to legal representation
-prevents the need for self-representation
a
-helps avert costs - largest barrier to legal service
-provides the assistance of legal services

41
Q

types of civil law

A

-family law
-defamation
-trespass to land
-wills and inheritance
-breach of contract’
-nuisance
-negligence

42
Q

when can representative proceedings be commenced

A

-if seven people or more have claims against the same person
-those claims relate to the same, similar or related circumstances
-the same issue need to be decided

43
Q

types of representative proceedings

A

-class actions
–product liability class actions
–natural disaster class actions

44
Q

benefits of representative proceedings

A

-the group members can share the cost
-it is a more efficient way of dealing with a number of claims
-people can pursue civil actions that they might not be able to afford

45
Q

options for negotiation

A

-arranging an independent third party (mediation/conciliation)
-arranging negotiation or other dispute resolution services through alternate bodies

46
Q

benefits of negotiation

A

-the cost, time and stress involved in commencing a formal civil action may be avoided
-the parties have control over the outcome
-the parties may be more prepared to accept an outcome that they have helped come to

47
Q

disbursements

A

-these are ‘out of pocket expenses’
–court fees
–mediation fees
–expert witness

48
Q

limitation of actions

A

the restriction placed on the time within which a civil action can be commenced (Limitation of actions act 1958 (vic))

49
Q

limitation of actions purpose

A

-the defendant does not have to face action after a significant amount of time
-evidence is not lost and people can still remember what happened
-disputes can be resolved as quickly as possible
–promotes social cohesion

50
Q

cav

A

CAV is a complaints body which offers free dispute resolution services to people who make a complaint about another policy

51
Q

cav purposes

A

-laws about the sale and purchase of goods and services
-provides consumers and traders, and landlords and tenants, with a dispute resolution process

52
Q

cav dispute resolution methods

A

-conciliation, primarily over the phone
–involves the assistance of a third, neutral party, the conciliator
—does not make suggestions on behalf of the parties
—usually has specialist knowledge
–if the party comes to an agreement, they can sign a terms of settlement which is enforceable by the courts

53
Q

cav jurisdiction

A

-the sale of goods and services
-residential tenancies
-retirement villages

54
Q

cav strengths

A

-CAV’s conciliaition service is free
-the process is informal
-CAV aims to resolve matters in a timely manner

55
Q

cav weaknesses

A

-not all cases are accepted
-CAV has no power to compel parties to undergo conciliation
-informal nature means the parties may not take the matter seriously

56
Q

vcat

A

a dispute resolution tribunal
purpose: to provide Victorians with a low-cost, accessible, efficient and independent tribunal

57
Q

vcat divisions

A

administrative, civil, human rights, planning and environment, residential tenancies

58
Q

vcat dispute resolution methods

A

-mediation
-compulsory conferences (use conciliation)
-a final hearing before a member

59
Q

mediation

A

-cooperative method of resolving a dispute
-mediator does not interfere or offer legal advice, and also does not need to be an expert
-terms of settlement may be drawn up to make the decision legally binding
-claims between $100 and $10 000 may be eligible for fast-track

60
Q

vcat jurisdiction

A

-purchases of sales and goods
-disputes between tenants and landlords
-discrimination/sexual harrassement
-domestic building works
-lawyers, lawyers’ contracts, legal services

61
Q

vcat cannot hear

A

-representative proceedings
-disputes between employers/employees
-disputes involving federal or state law

62
Q

vcat strengths

A

-normally cheaper than courts
-flexible (fairness + equality)
-informal

63
Q

vcat weaknesses

A

-cannot create precedent
-there is a limited right to appeal
-cannot solve some large and complex cases

64
Q

technological improvements in the legal system (2019)

A

f
-used to ensure all parties can equally access and view information
-streamlines the hearing process, reducing delays
a
-enable greater access for people in rural or remote areas
-not widespread and more needs to be done
e
-equality by giving more people access to courts and tribunals
-may not help people who don’t have access to technology

65
Q

expansion of VCAT’s fast track mediation (2019)

A

f
-mediation can avoid procedural fairness issues in a VCAT hearing
-not a complete solution
a
-greater access to people with claims up to $10 000
-highly successful ADR is provided to more in need
e
-impartial and unbiased mediator
-not a complete solution

66
Q

increased use of case management (recommended reforms)

A

f
-involves greater use of the judge when managing a dispute
a
-can avoid the need for trial
-can depend on which judge a party recieves
e
-tries to ensure that people are subjected to the same processes
-some parties may be ordered to do things others are not

67
Q

National Justice interpreter scheme

A

f
-provides a person with a non-English speaking background with a greater understanding of the court process
a
-depends on the availability of the interpreters
-‘’
e
-assists vulnerable parties to get an equal footing

68
Q

discovery of documents

A

-enables parties to get copies of documents that are relevant to the dispute
-usually via electronic exchange
-usually, parties are required to submit documents that are adverse to their own trial

69
Q

discovery of douments purposes

A

-disclose of all relevant documents
-reduce the element of surprise at trial
-determine the strength of the other side’s case

70
Q

exchange of evidence

A

lay
-evidence about what happened
-in writing or in person
expert
-independent, opinion evidence in an area of expertise
-written report

71
Q

exchange of evidence purposes

A

-reduce the element of surprise at trial
-determine the strength of the other side’s case
-offer a chance to rebut

Legal (6 decks)

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