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Legal 3/4 > Unit 4 > Flashcards

Unit 4 Flashcards

1
Q

What is the lowest court in the Victorian Court Hierarchy?

A

The Magistrates Court

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2
Q

What is the middle court within the Victorian Court Hierarchy?

A

The County Court

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3
Q

What is the highest court within the Victorian Court Hierarchy?

A

Supreme Court, Court of Appeals

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4
Q

What court is below the Supreme Court, Court of Appeals?

A

Supreme Court, Trial Division

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5
Q

What court sits above the Supreme Court, Court of appeals in the federal court hierarchy?

A

Federal Court

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6
Q

What cases can be heard in the magistrate’s court

A

Summary Offences and Indictable Offences heard summarily

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7
Q

Is there a Jury in the Magistrates Court of Victoria?

A

No, a single Justice hears the case alone

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8
Q

How many people are empanelled in the Jury of the County Court of Victoria? Criminal Division

A

12, 15 in cases which could go for a long time

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9
Q

How many people are empanelled in the Jury of the County Court of Victoria? Civil Division

A

6, 8 in cases which could go for a long time

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10
Q

What is the jurisdiction of the criminal division of the County Court of Victoria?

A

All Indictable offences except for those most serious in nature such as murder, treason and corporate offences

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11
Q

Culpable Driving; the act of killing a person in a motor vehicle, what court would hear this specific case?

A

County Court, Criminal Division

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12
Q

What appellate jurisdiction does the County Court of Victoria have?

A

In Criminal Cases, they are able to hear appeals from the Magistrates court on a sanction basis. Appeals are heard on a de novo basis meaning that they are heard as a rehearing and the accused is NOT bound by their original plea.

In Civil cases, the County Court has no appellate jurisdiction unless specified under an Act of parliament

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13
Q

What jurisdiction does the County Court have in terms of civil cases?

A

An unlimited jurisdiction meaning that they can hear cases of all value (damages) however, generally cases >$1M are heard in the supreme court due to the complexity of the case at hand.

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14
Q

What jurisdiction does the Supreme Court, Trial Division has for Criminal Cases?

A

Unlimited, however, they generally only deal with the most serious of cases ie Murder, Treason, Conspiracy and Terrorism

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15
Q

What jurisdiction does the Supreme Court, Trial Division has for Civil Cases?

A

Unlimited, however, they generally only deal with claims over $1M

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16
Q

What does FAT stand for?

A

Fair and unbiased trial, effective Access to the legal system and a Timely resolution of dispute

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17
Q

What is bail?

A

Bail is the conditional release of an accused person on account that they return for their trial or hearing. Conditions of bail include: a surety, restrictions on movement and even passport forfeiture

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18
Q

What is remand?

A

Remand is the holding of an accused person in a facility after failing to gain bail. Remand is designed to protect the community, evidence or witnesses in the case that they are the subject of.

19
Q

How does bail fit into the requirements for FAT?

A

Bail provides for a fair and unbiased trial as the accused person(s) has the chance to prepare for their trial and involve themselves in the preparation of their case, ie providing a fair trial

20
Q

How does remand protect the community?

A

Remand protects the community by confining a potentially dangerous person to a secure facility where they are held until and during their trial therefore, protecting the community

21
Q

How does bail provide for the presumption of innocence?

A

Bail provides for the presumption of innocence through allowing an accused person their freedom (to some degree) as if they were not an accused person, therefore, upholding the right to presumption of innocence

22
Q

What are the two elements of a crime?

A

Actus Reus (guilty act) and Mens Rea (guilty mind)

23
Q

What is the first step in a civil procedure in the Supreme Court?

A

Pleadings; exchange of documents between Plaintiff, Accused and the Court

24
Q

What are the documents within pleadings?

A

Writ, Statement of Claim, a Defence, a Counterclaim (if filed), a Reply to Defence and Further and Better Particulars

25
Q

What is a Writ?

A

A document which: explains to the defendant that an action is being taken against them.
Informs the defendant where the trial will be occurring and the mode of trial

26
Q

What is a statement of claim?

A

Attached to the Writ or Originating Motion

Explains the nature of the claim, the cause and the remedy or relief sought

27
Q

What is a defence?

A

After the defendant has served their notice of appearance noting that they will be fighting the claim, a defence either admits or denies the allegations

28
Q

What is a counter claim?

A

A claim by the original defendant to the original plaintiff arising from the allegations taken out by the original plaintiff

29
Q

What are further and better particulars?

A

A party may request a further and better particular of the other’s claim or defence

30
Q

What is the purpose of directions hearings?

A

a brief hearing before the judge and is a chance for the parties to meet with the judge to discuss the progress of the case and give directions to the parties < No less than 35 days after the defendant has filed a notice of defence.

31
Q

What is discovery?

A

Enables the parties to gain further information on matter that remain unclear. Involves the disclosure of documents and exchanging of documents that are relevant to the issues in dispute

32
Q

What elements make up discovery?

A

Discovery of Documents, Interrogatories, Discovery by Oral Examination and Medical Examination

33
Q

What is discovery of documents?

A

Preparation of documents which are first outlined in an affidavit of documents, which contains: All relevant documents that are or were in possession of the parties, All documents that the party refuses to disclosed due to their privileged nature

34
Q

What are interrogatories?

A

searching questions relating to the known facts of the case. Usually requested to be completed within 60 days .

35
Q

What is discovery by oral examination?

A

As a result of the interrogatories, a party may request that the other party answer some questions. If contested, the questions will be asked as if they were being examined in chief

36
Q

What is the FAT reason for “a greater capacity for single judges to determine appeal applications”?

A

Timely Resolution of disputes; to ensure that the dispute and possible appeal are heard in as soon a time as possible

37
Q

What is the FAT reason for “extending the time for an appeal to be made from 14 to 28 days”?

A

Fair Hearing; to ensure that the appeal has the best chance for success in the appeals court

38
Q

Why does “more avenues for filing appeals electronically” ensure a timely resolution of dispute?

A

The application of appeals electronically speeds up the trial process as it is a vastly more efficient process which reduces the time for appeals to be filed in days

39
Q

What is the role of the judge in the Adversary System?

A

To act as an independent third party in the trial and direct parties to various actions ie mediation, or to hand sanctions down in criminal cases and in appeals; decide on points of law whilst weighing up evidence that is presented before them

40
Q

What is the role of the judge in the Inquisitorial System?

A

To investigate crimes and civil issues and hand down sentances based on the investigated crimes. The judge(s) run the trial and question witnesses etc

41
Q

What is the role of legal representation in the adversary system?

A

The role of legal representation is to represent their clients and guide them through the legal system and fight on their behalf whilst in court

42
Q

What is the role of legal representation in the inquisitorial system?

A

To help the Judge(s) achieve their task of investigating the crime/ wrongs that have taken place

43
Q

Where in the world uses the Inquisitorial System?

A

France, spain etc. Countries which hace ancient european contacts

44
Q

What is the role of the parties in the adversary system?

A

The parties aim to fight against each other in court using their words and evidence to win against the other party. Each party is aiming to win and be better than the other. Legal representation helps here as the system can be complicated therfore clients need the legal representation to

Legal 3/4 (8 decks)

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