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Legal 3/4 > UNIT 4 - AO2A > Flashcards

UNIT 4 - AO2A Flashcards

1
Q

List Elements of an effective legal system

A
  • entitlement to a fair + unbiased hearing
  • effective access to legal system
  • timely resolution of disputes
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2
Q

entitlement to a FAIR + unbiased hearing

A

every individual is entitled to a fair hearing,
an equal opportunity to present their side of a story by calling evidence and to be treated equally before the law

An effective legal system provides structures and procedures that facilitate a fair hearing.trial, free from bias

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3
Q

how fair + unbiased hearing is achieved

A
  • police investigation eg. right of silence
  • presumption of innocence in criminal cases
  • rules of evidence followed by both parties
  • any evidence that cannot be authenticated is inadmissible
  • rules of evidence/ procedure strictly followed
  • impartial+ unbiased judge/jury
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4
Q

Effective ACCESS to legal system

A

To operate effectively a legal system must provide ways in which disputes in community can be resolved.

This means provision of avenues for dispute resolution so parties can reach a resolution w/o court hearing

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5
Q

effective access to legal system - how is it achieved

A

through operation of dispute resolution bodies, people + processes
- courts, experts + specialised divisions eg. koori
- legal representation
dispute resolution bodies e.g.. vcat
- legal aid
- right of appeal

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6
Q

TIMELY resolution of disputes

A

To operate effectively legal system must resolve disputes in timely manner
If law resolves disputes slowly, disputes fester and community loses confidence
However, law should not resolve too quickly as not allowing adequate time for full consideration of both sides to a dispute

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7
Q

timely resolution of disputes - how is it achieved

A
  • committal hearings, ensure accused does not have to wait long time for case unlikely to succeed
  • civil pre trial procedures, could encourage settlement reducing delays but exchange in documents takes time
  • directions hearing, assist in resolving some issues before trial + setting time limit
  • alternative dispute resolution bodies for civil disputes
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8
Q

The adversary system

A

Involves two opposing parties with eau party presenting their cases before an independent, unbiased third party. The third party can either be a judge or judge + jury depending on civil/criminal nature who will decide on question of fact and evidence presented

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9
Q

list key features of adversary system

A
  • role of parties (party control)
  • role of judge
  • need for legal representation
  • burden + standard of proof
  • rules of evidence + procedure
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10
Q

adversary system - role of the parties

A

party control means parties are in control of their case

  • issue of dispute
  • evidence presented
  • which witnesses to be called
  • whether to have legal representation
  • in civil, mode of trial: judge or judge + jury (6)
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11
Q

adversary system - role of judge

A
  • to ensure fair + balanced trial
  • must be impartial, not favour party
  • judge/judge + jury must be independent
  • decide on evidence brought before them
  • judge must comply with strict rules of evidence + procedure
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12
Q

adversary system - need for legal representation

A
  • party w/ legal rep or superior rep more likely to succeed due to expertise
  • role of legal rep tp prepare and conduct case on behalf of party
  • familiar w/ legal language + strict rules of evidence/procedure
  • ensure parties present best possible case + assist in achieving successful outcome
  • ensure equality as individual w/o legal rep would have imbalance of power due to lack of knowledge and expertise. essential due to active role of parties e.g.. can’t cross examine witness
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13
Q

adversary system - burden + standard of proof

A

BURDEN - party bringing the action
civil = plaintiff (individual w/ rights infringed)
criminal = lies w/ prosecution

STANDARD - amount of proof required for case/outcome to be determined
civil = plaintiff must prove case on BALANCE OF PROBABILITIES. plaintiff must prove they are most probably in the right, and the defendant is most probably in the wrong
criminal = prosecution must prove case BEYOND A REASONABLE DOUBT. That is: there must be no reasonable doubt for an accused to be found guilty

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14
Q

adversary system - rules of evidence + procedure

A

ensure fair + equal treatment for both parties
PROCEDURE
- provide framework in which court cases can take place + through which court to bring about resolution
- hearing/trial procedure establishes steps for bringing out evidence

EVIDENCE 
facilitate the fact finding task of court + aim to ensure fair + equal treatment 
- oral evidence 
- statement/affidavit 
- object eg. weapon 
- audiovisual 
- circumstantial evidence 
- must not be inadmissible and be authenticated
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15
Q

strength of adversary system - the role of parties

A

party control, parties are more likely to feel satisfied with result if they have control of conduct

allows parties to fight own battle

criminal = doesn't have to depend on state for defence 
civil = parties can settle differences w/ little help from state
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16
Q

weakness of adversary system - the role of parties

A

party control can lead to :

  • further animosity b/w parties instead of settling in amicable manner
  • high cost of legal rep in order to win due to active role
  • control of evidence means vital evidence may be missed
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17
Q

strength of adversary system - role of judge

A
  • judge is impartial + makes sure parties are treated fairly
  • creates confidence as judge is independent
  • independent of prosecution in criminal or parties in civil
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18
Q

weakness of adversary system - role of judge

A
  • judge can not offer parties assistance even if disadvantaged by lack of legal rep which is a waste of expertise
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19
Q

strength of adversary system - legal representation

A
  • each party has right to choose

- can choose someone who they believe will present their case in the best light

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20
Q

weakness of adversary system - legal representation

A
  • adversary relies on both sides equally represented

- party may not be able to afford legal rep or have inferior = imbalance of power

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21
Q

strength of adversary system - rules of evidence/procedure

A

makes process fair

  • oral evidence, helps reveal if witness is sincere
  • process of examination e.g. cross examination allows parties to present case and test evidence to other party
  • all parties are treated equally
  • some types of evidence not permitted to protect parties from injustices
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22
Q

weakness of adversary system - tules of evidence/procedure

A

problems could arise from:

  • witness may be intimidated
  • witnesses can only respond to questions and not share story in own words
  • expert advice an be unduly relied on
  • not all evidence may be brought out and truth may not be revealed
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23
Q

major features of inquisitorial system - The role of parties

A
  • parties have reduced control due to judge having more control
  • required to respond to directions of court
  • control lies w/ third party and may reduce inequities of parties
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24
Q

major features of inquisitorial system - The role of Judge

A
  • three judges take more active role
  • central judge examines evidence/witnesses
  • not as impartial
    more active role includes:
  • investigating cases and defining issues
  • gathering evidence
  • objective to find truth of matter
  • finding both incriminating and exonerating evidence
  • call/question witnesses which may raise other matters of law or fact
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25
Q

major features of inquisitorial system - the need for legal representation

A
  • less necessary due to active role of judge

- benefits parties who cannot afford rep

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26
Q

major features of inquisitorial system - rules of evidence and procedure

A
  • all evidence gathered/ examined by judge
  • relies less on oral statement more on physical evidence
  • evidence of bad character is permissible
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27
Q

major features of inquisitorial system - burden and standard of proof

A
  • no formal burden/standards of proof is set on any party

- as judge is responsible for bringing evidence and finding truth

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28
Q

comparison of adversary/inquisitorial - role of parties

A

ADVERSARY

  • party control responsible for: preparation and presentation of their case
  • determine issues disputed
  • what evidence to use
  • which witnesses to call

INQUISITORIAL
- parties respond to directions of court in presentation of their case

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29
Q

comparison of adversary/inquisitorial - role of judge

A

ADVERSARY

  • independent, unbiased third party
  • decides on Q of law/ procedure
  • only ask Q of clarification

INQUISITORIAL

  • takes more active role in case
  • determines which evidence and witnesses to be examined
  • questions witnesses
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30
Q

comparison of adversary/inquisitorial - need for legal rep

A

ADVERSARY

  • represents parties interests
  • prepare and present parties use
  • call/examination of witnesses

INQUISITORIAL

  • not as much need for legal rep due to active role of judge
  • may ask questions after the judge has completed their questioning
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31
Q

comparison of adversary/inquisitorial - rules of evidence and procedure

A

ADVERSARY

  • strict rules in regards to admissibility apply
  • mainly relies on oral evidence
  • all evidence except written statements collected by parties
  • witnesses must answer Q’s put to them by legal counsel
  • prior criminal record is inadmissible

INQUISITORIAL

  • no strict rules
  • relies heavily on written statements
  • all evidence and witnesses examined/collected by judge
  • witnesses are allowed to give their version of what happened w/o interruption
  • prior criminal record in inadmissible
32
Q

effectiveness of legal system (adversary) - PROMOTES entitlement to fair and unbiased hearing

A
  • party control
  • independent arbitrator
  • legal aid
33
Q

effectiveness of legal system (adversary) - PROBLEMS relating to fair and unbiased hearing

A
  • inadmissible vital evidence
  • legal representation cost
  • legal aid
34
Q

effectiveness of legal system (adversary) - RECENT CHANGES/RECOMMENDATIONS relating to fair and unbiased hearing

A
  • JUSTICE LEGISLATION (evidence + other acts) amendment bill 2016.
    covering use of audiovisual links for giving evidence
    -JUDICIAL COMMISSION OF VICTORIA ACT 2016,
    investigation of JD officers or non judicial to remain fair + unbiased
    -WITNESS PROTECTION AMENDMENTS, BILL 2015
    governance of protection of witnesses + creates new offence regarding intimidation of witnesses
35
Q

effectiveness of legal system (adversary) - PROMOTES access to legal system

A
  • legal aid
  • legal representation
  • alternative dispute resolution
36
Q

effectiveness of legal system (adversary) - PROBLEMS relating to access to legal system

A
  • legal representation cost
  • represents themselves
  • difficulties w/ language + understanding legal processes
37
Q

effectiveness of legal system (adversary) - RECENT CHANGES/ RECOMMENDATIONS

A
  • JUSTICE LEGISLATION, (evidence + other acts)
    amendment bill 2016.
    audiovisual links for giving evidence, improving access
  • VCAT REFORMS, VCAT 2014 aims to improve efficiency, thereby reduce the costs of taking costs to cat
  • MAGISTRATES COURT VIC INITIATIVES, November 2013 Melbourne Magistrates introduced weekend sittings to manage demand of criminal division.
    Weekend sittings allow for those remanded to come before court for bail application at earliest opportunity
38
Q

effectiveness of legal system (adversary) - PROMOTES timely resolution of dispute

A
  • directions hearing (reduce delays in pre trial procedures)
  • mediation
  • committal hearings cut out in criminal
39
Q

effectiveness of legal system (adversary) - PROBLEMS relating to timely resolution of disputes

A
  • pre trial procedures (civil) = time consuming
  • parties may not meet deadlines for pre trial procedures
  • extra evidence come to light after case has been decided
40
Q

effectiveness of legal system (adversary) - RECENT CHANGES/RECOMMENDATIONS

A
  • VCAT REFORMS 2014

- MAGISTRATES COURT OF VICTORIA INITIATIVES November 2013

41
Q

role of jury

A
  • acts an independent decision maker in criminal trials and some civil trials
  • to be decider of fact
  • make decisions about which facts are believed to be true
  • apply facts to law as explained by judge
  • decide on matter of fact + deliberate
42
Q

criminal role of jury

A
  • determine whether accused is guilty of crime has been charged, or guilty of lesser charge
  • must be beyond reasonable doubt
  • must reach unanimous decision unless after 6 ours majority of 11/12 except: murder,treason,commonwealth offences drug trafficking of commercial quantities
43
Q

civil role of jury

A
  • decides on liability based on balance of probabilities
  • decide whether defendants liable or not
  • if there is jury present decide on : damages awarded to plaintiff
44
Q

selection of jury - eligibility

A
  • 18 + and Australian citizen

- on electoral role

45
Q

selection of jury - who is responsible for selection of prospective jurors ?

A

Jury commissioner contacts chief electoral officer and asks for name from electoral role.
- names then given to jury commissioner

46
Q

selection of jury - by whom is jury questionnaire sent and purpose ?

A

jury commissioner to prospective jurors
- purpose = determine eligibility to serve
30 penalty unit fine if don’t respond

47
Q

selection of jury - how are eligible jurors informed of service ?

A

summons, indicating:

  • time
  • court to attend
48
Q

composition of jury - what are the requirements for the composition and empanelling of jurors

A
  • disqualified
  • ineligible
  • excused for good reason
49
Q

requirements for composition and empanelling of jurors - disqualified

A

individuals who have been in wrong
convicted of indictable offence
or sentenced to 3+ years imprisonment

50
Q

requirements for composition and empanelling of jurors - ineligible

A
  • occupation eg, involved in enforcement or administration of law
  • incapable of comprehending procedure/proceedings
51
Q

requirements for composition and empanelling of jurors - - excused for good reason

A
  • live 50 km from courts
  • ill health
  • full time carers or children/elderly
  • advanced age
  • substantial financial hardship due to serving
52
Q

minimum attendance of jury service

A

2 days or if filled 1 may only be required

53
Q

pay for jury service

A

$40 for first 6 days

$80 each following day

54
Q

employers responsibility for jury service

A
  • can not refuse permission to serve

- mandated to pay difference between jury pay and normal days pay

55
Q

how is jury empanelled

A
  • called out by name + occupation
  • walk into court room + jury box in front of counsels
  • accused counsel has 6 peremptory challenges
  • prosecution can ask 6 to stand aside
  • both counsels = unlimited challenged for cause which may be due to relation to accused
  • in civil, both parties can strike off 1/2 of list of people due to occupation
  • jury sworn in
56
Q

role of foreperson

A
  • act as spokesperson
  • chairs deliberation and ensures each juror has equal say
  • ask judges questions
  • deliver verdict
  • he/she should not deliver verdict
57
Q

for cause challenge

A

a juror may be challenged for a reason, such as knowing the accused. unlimited

58
Q

peremptory challenge

A

when a juror is challenged w/o reason are usually based on assumption may not be favourably disposed.
Assumption may be based on: appearance, age, occupation if given

59
Q

civil cases - how many peremptory challenges and how many for cause

A
  • 3 peremptory challenges each

- unlimited challenges for cause, judge makes final decision

60
Q

criminal cases - how many peremptory challenges and how many for cause

A
  • accused allowed 6 peremptory, however may change due to number of accused in each trial
  • accused + prosecution have unlimited on approval of judge
61
Q

civil majority verdict

A
  • 5/6 if unable to reach decision after 3 hours of deliberation
62
Q

criminal majority verdict

A
  • 11/12 accepted after 6 hours, except cases of: murder, treason, drug trafficking of commercial quantities and commonwealth offences
63
Q

hung jury

A

a jury which can not reach a verdict

64
Q

advantages of jury

A
  • CROSS SECTION OF PEOPLE, accused can feel confident they aren’t pressed by authority
  • ENSURES LESS LEGAL JARGON, presence of jury ensures evidence is clear and technical terms kept to minimum
  • SAFE GUARDS AGAINST MISUSE OF POWER, jury acts as buffer between prosecuting state and accused
65
Q

disadvantages of jury

A
  • NOT A TRUE CROSS SECTION, as many people are ineligible and number of challenges
    -UNFAMILIARITY W/ LEGAL PROCEDURE
    little knowledge/experience where may become overwhelmed and emotional
    -JURORS COULD BE BIASED, as they aren’t professionals and may be unaware of biases they hold or may find hard to ignore the biases they do hold
66
Q

list changes to jury system

A
  • extra jurors
  • majority verdicts
  • making the jury more representative
67
Q

changes to jury system - extra jurors

A
  • civil juries in supreme + county are allowed 2 extra jurors in case someone is ill or needs to be excused
  • criminal juries are allowed 3 extra jurors will have case decided by full number of jurors, decreases chance of mistrial
68
Q

changes to the jury system - majority verdicts

A

introduced, in criminal cases except: murder, treason, drug trafficking of commercial quantities, or commonwealth offences
- if unanimous can’t be reached after 6 hours majority accepted which speeds up time of reaching verdict

69
Q

changes to the jury system - making the jury more representative

A
  • reducing number of peremptory challenges
  • removing the right to be excused as a right
  • distance person lives increased from 32k to 50 k
  • ineligibility changed: ministers of religion can now serve
70
Q

list alternatives to jury

A
  • professional jurors
  • judge alone or panel of three
  • specialist jurors, depending on context of case
71
Q

effectiveness of jury system - PROMOTES entitlement to a fair + unbiased hearing

A
  • RANDOM NATURE OF SELECTION, promotes ideal of being made up of cross section
  • CHALLENGE JURORS, both sides can challenge juror if they believe they would prejudicial to case
  • ACT AS BUFFER, between state + individual as state is prosecuting, Jury is then able to reach fair + unbiased hearing
72
Q

effectiveness of jury system - PROBLEMS that may hinder fair + unbiased hearing

A
  • NOT ALWAYS CROSS SECTION, due to ineligibility requirements
  • DIFFICULTY UNDERSTANDING, complicated nature of trial + complex evidence not able to fully understand which may hinder accused right to fair + unbiased hearing
  • JURY MAY BE INFLUENCED, due to what they have read, media or persuading barristers
73
Q

effectiveness of jury system - PROMOTES timely resolution of disputes

A
  • courts must ensure accused has been given fair trial whilst also resolving + reaching verdict as quickly as possible
74
Q

effectiveness of jury system - PROBLEMS that may hinder timely resolution of dispute

A
  • EMPANELMENT, can take hours/days for long trials due to challenges
  • during trial process JURY REMOVED from court room as counsels argue on point of law = timely
  • INEXPERIENCE OF JURY, counsel have to explain legal concepts to members of jury to understand = timely
75
Q

effectiveness of jury system - RECENT CHANGES - entitlement to fair + unbiased hearing

A

JURIES DIRECTION ACT 2015
This act makes a range of amendments aimed at simplifying + clarifying the law on jury directions.

The purpose of the act includes:

  • to reduce complexity of jury directions in criminal cases
  • to simplify + clarify the issues that juries must determine in criminal trials
  • to simplify + clarify the duties of the judges in giving jury directions
  • to prove for simplified directions in relation to specific issues
76
Q

effectiveness of jury system - RECENT CHANGES - timely resolution of disputes

A

JURIES DIRECTION ACT 2015
This act makes a range of amendments aimed at simplifying + clarifying the law on jury directions.

The purpose of the act includes:

  • to reduce complexity of jury directions in criminal cases
  • to simplify + clarify the issues that juries must determine in criminal trials
  • to simplify + clarify the duties of the judges in giving jury directions
  • to prove for simplified directions in relation to specific issues

Legal 3/4 (12 decks)

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