Unit 4 Outcome b Flashcards
The elements of an effective legal system: entitlement to a fair and unbiased hearing, effective access to the legal system and timely resolution of disputes
Entitlement to a fair and unbiased hearing:
-rules of evidence ensure that only reliable evidence
-the use of an impartial, independent and unbiased jury to decide questions of fact
-consistency in sentencing through the sentencing act
Effective access to the legal system:
-Interpreters are provided for people with language difficulties
-Community legal centres are available
-Lawyers and the ability to access legal representation
Timely resolution of disputes:
-Time limits placed on both civil and criminal pre-trial procedures
-ADR methods are aimed at parties to a civil dispute resolving the dispute themselves, with the help of an independent third party and avoiding delays of a hearing
-Case is heard as one continuous trial
The elements of an effective jury system: entitlement to a fair and unbiased hearing.
Achieving fair and unbiased hearing:
-The jury selection ensures people with no prior experience with the legal system (impartial)
-The challenge process allows for the legal counsel to remove any juror who may be biased
Hinder fair and unbiased hearing:
-jurors may be influenced by the media or legal counsel or may find it hard to put aside preconceived ideas
-Jurors may have difficulty understanding complex evidence
The elements of an effective jury system: effective access to the legal system.
Achieving effective access to the legal system:
-Criminal trial juries is borne by the state
Hinder effective access to the legal system:
-In civil trial the party that requests the jury pays the cost
The elements of an effective jury system: timely resolution of dispute
Hinder a timely resolution of dispute:
- empanelment of a jury takes time
- trial before jury may take longer than before a judge alone
The role of juries, and factors that influence their composition
- access the facts
- listen, understand, remember and analyse all evidence
- put aside any preconceived ideas
- Decide whether the accused is guilty or not guilty
- Must find for either the plaintiff or defendant on the balance of probabilities or beyond reasonable doubt
Factors that influence their composition
eligible, ineligible or disqualified.
eligible: may apply to the juries commissioner to be excused from jury service, either in whole or for a particular time.
ineligible: people considered to be too closely involved with the legal process (lawyer) or those unable to perform the task due to physical, mental or intellectual disability, or poor English
disqualified: considered unsuitable for jury duty due to something have done in the past e.g. committed an indictable offence, on bail or undischarged bankrupt.
Strengths and Weaknesses of jury system
strengths:
- jurors are impartial and independent, they have no past experience, therefore possess no bias.
- guard against the misuse of power, decisions are made by ordinary people rather than a judge.
- jurors bring community values into the court room, taking into account the social, cultural, moral and economic values of the times.
weaknesses:
- not a true cross-section of the community, due to the number of people who are disqualified, ineligible, excused or challenged, there is not a true representation of the community.
- jurors may find it hard to set aside preconceived ideas
- jurors increase the cost of a court trial
Reforms to the jury system
Suggested reforms
creating a more representative jury:
Reducing the number of challenges and stopping legal counsel from influencing the composition of the jury. Also, if jurors pay was increased then fewer people would suffer financial hardship from jury service and the number of jurors excused for good reason would fall.
Compel juries to give reasons for their decisions:
This would make juries accountable for their verdicts and assist parties in understanding why they won/ lose their case. It could also open up further grounds for appeal if the jury misapplied the law to the facts.
Introduce a ‘not proven’ verdict:
For criminal trials where the jury are not satisfied as to either the guilt or innocence of the accused. The case may be investigated further or reopened if new evidence is found.
Alternatives of the jury system
Suggested alternative
Professional jurors:
Carry out the same role as current jurors, but on an ongoing basis, as employees of the state. know court procedure and processes. if the jury was no longer made up of common people with ordinary values jurors become part of the legal system. This could also cause a loss of independence in the jury.
Specialist jurors:
Juries would be made up of experts in certain fields, being able to understand complex evidence in cases. however these people wouldn’t represent community values. It would also be expensive to pay a panel of experts.
Trial by judge or a panel of judges:
The jury system could be totally replaced by having cases heard by either a single judge or a panel of judges. This alternative would reduce costs and delays involved with trial by jury and also overcome difficulties in understanding law, evidence, court processes and procedures, as the task of deciding the facts would fall to people with legal training, skills and experience. However, this would be at the loss of involvement of the community in the legal system, with no trial by peers.
Problems and difficulties faced by individuals in using the legal system
High cost
High cost of legal proceedings:
expensive process to peruse a legal case, may prevent or discourage some parties from perusing a valid civil claim through the courts. effects people whose disputes cannot be settles through ADR or is outside the jurisdiction of VCAT. Another main source of expense is for legal advice and representation. The VLA (Victoria legal aid) offers government funded legal assistance, advice and representation, however its funds are limited. The legal aid is means tested and the merit and reasonable test
Problems and difficulties faced by individuals in using the legal system
aboriginal people
aboriginal people are often disadvantaged in their dealings with the legal system. A number of issues, including language and communication difficulties, and cultural differences contribute to this problem. Aboriginal people are 11 times more likely to be imprisoned, this could be due to their way of communicating that may mean that direct questions are unwelcome, or their reluctance to look people in the eye, as it may be a sign of disrespect.
Recent changes and recommendations for change in the legal system designed to enhance its effective operation. financial difficulties (high cost)
Changes to overcome the lack of access due to financial difficulties:
court annexed mediation in the magistrates’ court-
All defended civil disputes in selected magistrates courts where the amount claimed is less than $10,000 are required to undertake mediation. This has seen a settlement rate of 86%.
Recent changes and recommendations for change in the legal system designed to enhance its effective operation.
online legal advice (high cost)
Suggested changes to overcome the lack of access due to financial difficulties:
online legal advice-
while there is increasing use of the internet in providing legal information such as through legal online, and websites of the Victoria law foundation and Victoria legal aid, there remain few law firms that will provide advice online. This could offer cheap and quick legal services.
Recent changes to overcome problems aboriginal people face:
Koori County court-
Recent changes to overcome problems aboriginal people face:
Koori County court-
it is a sentencing court that was established to overcome some of the cultural differences experienced by aboriginal people in the legal system. The informal proceedings are aimed at ensuring the understanding of that accused, their family and the aboriginal community. A koori elder or a respected person advises the court on cultural issues, and these are considered in sentencing the accused.
Suggested changes to overcome problems aboriginal people face-
Recognition of aboriginal tribal law-
Suggested changes to overcome problems aboriginal people face-
Recognition of aboriginal tribal law-
there have been calls to recognise aboriginal tribal law within the legal system on a more sympathetic and formal basis. Assisting with the achievement of a fair and unbiased hearing.
