Summary of Legal Notes (PDF)

Unit 3: aos 1 Unit 3: aos 1 Tab 2 The distinction between summary and indictable offences Summary offences: Minor offences listed in the summary offences act Heard in the Magistrates court by a magistrate Eg. drink driving, public drunkeness Indictable offences: Major offences listed in the crime...

Unit 3: aos 1 Unit 3: aos 1 Tab 2 The distinction between summary and indictable offences Summary offences: Minor offences listed in the summary offences act Heard in the Magistrates court by a magistrate Eg. drink driving, public drunkeness Indictable offences: Major offences listed in the crimes act Most serious offences are heard in the supreme court trial division Eg. murder, treason, rape Indictable offences heard summarily: If listed in the criminal procedures act some indictable offences may be able to be heard summarily, if agreed to by both the judge and the accused Eg. high amount theft, minor assault with theft Principles of the criminal justice system Standard of proof: must be proven beyond reasonable doubt Burden of proof: lies with the person who brough the case (the prosecution) Reverse burden of proof: if the accused is trying to prove mental health of that the drugs aren’t thiers Presumption of innocence: protected under the charter of human rights and responsibilities act (2006) vic guarantee that an accused is not guilty unless can be proven beyond reasonable doubt Rights of an accused (protected under the charter of human rights and responsibilities act (2006) vic) 1. Right to silence 2. Right to be tried without unreasonable delay 3. Right to trial by jury Rights of victims 1. Right to give evidence using alternative arrangements a. Only applies to some victims eg. sexual offences, violence, threatening language or behaviour b. Eg. using shields, support person, animal, give evidence using cctv, closed court 2. Right to be informed about proceedings a. Requirement for police and DPP to provide certain information - but not if it compromises the investigation b. Eg. charges, time and location of hearing, appeals 3. Right to be informed of the likely release date of the accused a. Must apply to the victims charter b. Must be a victim of an act of violence c. Length of sentence, if an offender escapes from prison, notification of parole at least 14 days prior Principles of justice Fairness - Open processes - Impartial processes - Participation Equality - Formal equality - Substantive equality Access - Ability to engage with the legal system - Ability to be informed VLA and CLC Victorian legal aid Government funded organisation that provides legal information, advice and representation based on need and financial circumstances of applicatis Income test → shows applicant has limited income eg. centrelink card, pensioner card, sign statutory declaration Means test → demonstrates income, assets and expenses of applicant Assisting accused: 1. Free legal information a. All members of the community can access it b. Available in multiple languages c. However: not specific, general in nature 2. Free legal advice a. Requires means test b. Prioritised by need, only summary or indicatble heard summarily 3. Duty lawyer a. Requires income test b. Can get representation if pass means test and has a significant offence c. Or in special category eg. first nations, disability 4. Grant of legal assistance a. Requires means test b. Legal representation in court and prep of documents c. May require a contribution from the accused Assisting victims: 1. Free legal infromation eg. compensation order afainst accused a. Protection otders b. Legal advice 2. Duty lawyers a. On day services, magistrates court only b. Prioritised depending on who shows up on the day 3. Grants of legal assistance  a. Reasonableness test applies POJS Strengths: 1. Free legal information available on VLAs website 2. Duty lawyers and grants aim to prioritse the most vulnerable in our society 3. Some legal information provided in 30+ languages 4. Many online tools Limitations: 1. Free information may not be enough for certain people 2. Doesnt have unlimited resources, therefore the missing middle happens 3. Services depend on continued funding therefore fewer people may be eligible 4. Depends on whether people know of its existence Community legal centres Independent organisations that provide people with information, legal advice and ongoing assistance as well as legal education to the community to increase awareness of rights Most are volunteers Assisting accused: 1. Basic legal information a. Can provide information through online or physical resources 2. Initial legal advice a. Advice and information on preliminary matters b. Can assist with writing letters or completing forms 3. Legal casework a. Each has its own eligibility requirements i. Eg. type of legal matter, whether other assistance is available b. Can provide representation in criminal matters that require ongoing assistance c. Not indictable offences Assisting victims: Some CLCs have expertise eg. the womens legal service victoria which provides women experiencing family violence with free legal advice and representation 1. Basic legal information 2. Legal advice 3. Duty lawyer services a. Those who are seeking family violence protection orders or personal safety protection orders 4. Ongoing casework a. Some provide ongoing casework or assistance for a victim of a crime b. Involves ongoing legal representation and assistance c. Depends on eligibility POJS Strengths: 1. Free information available on CLC websites 2. Some information is offered in different languages - some offer interpreter services  3. Provide information to help educate the community about processes and their rights Limitations: 1. CLC have notes that there is insufficient funding to help everyone who needs legal assistance and there is a ‘service gap’ 2. Many CLCs do not help people charged with indictable offences 3. may not have enough staff or volunteers to meet the needs of accused people and victims meaning that people are being turned away or less time being allocated to complex cases Plea negotiations Pre trial discussions between prosecution and accused Aims to come to an earlier agreement than through trial Appropriateness 1. Whether accused is willing to cooperate 2. Strength of prosecution's case and evidence 3. Whether accused is willing and ready to plead guilty 4. Whether accused is represented 5. Whether witnesses are reluctant or unable to give evidence 6. Adverse consequences of full criminal trial 7. Time and cost associated with trial achieves Doesnt fairness Trust in process if conviction - No open processes occurs - Accused may be disadvantaged without representation - Participation in criminal system Equality - Not everyone has access - Not everyone is treated equally access Informed - Can limit access for Access victims Aids with courts in being open Reasons for VIC court hierarchy in determining criminal cases Ranking of courts from lowest to highest Specialisation: Expertise and knowledge in the relevant law and procedures for particular types of manners Appeals: If there are grounds for appeal, a party who is dissatisfied with a decision can take the matter to a higher court to challenge the decision Victorian court Original jurisdiction Appelate jurisdiction Mag - Summary offences None - Indictable offences (heard summarily) - Committal proceedings - Bail and warrant applications county - Indictable offences - From magistrates on (no murder, treason) conviction or sentence wide jurisdiction supreme : trial div - Most serious - From magistrates on indictable offences a points of law - limited appellate jurisdiction supreme : court of appeal None - From county or supreme court with leave - very broad - Magistrates court where the chief magistrate decided the case Strengths: 1. More efficient process or resource use based on types of cases heard at each court 2. Allows for appeals 3. Upholds the doctrine of precedent 4. Needs of parties can be met more efficiently Limitations 1. Be confusing for people who don’t understand the justice system 2. Doesn’t allow for the automatic right to appeal 3. Lower courts are bound by precedents from higher courts 4. Appeals are expensive, time consuming and complex Key personnel magistrates/ judge 1. Decide the outcome of the case 2. Case management a. Make sure that correct procedures are followed so both parties have opportunities to present their case b. Ask questions to clarify issues for jury  c. Make decisions about admissibility of evidence during the trial 3. Be impartial and unbiased 4. Give directions to jury and answer jury questions 5. Detmermine sentence/ sanction Jury 1. Deliver a verdict based only on evidence presented to the court 2. Be objective/ impartial 3. Listen carefully and remember evidence 4. Understand summing up and jury directions Parties 1. Disclose information to accused - prosecution 2. Participate in the trial and hearing a. Providing evidence b. Cross examining c. Closing address 3. Make submissions about sentencing - accused Need for legal practitioners Ensure person has an adequate opportunity to test evidence put against them Ensure no mistakes are made when deciding whether someone is guilty of a crime Unrepressented lacks skills and experience to navigate the judtice system and test evidence Doesnt have objectivity to make the right decisions, may be overly invested or emotional Costs, time and cultural differences Costs: Engaging a lawyer Not everyone can afford this Measures in place to address costs: VLA CLCS Committal hearings to filter out weak cases so that they do not go to unnecessary trials ○ Provides opportunity for accused to plead guilty ○ Only used for indictable offences Plea negotiations Time Court delays ○ Due to gathering evidence, locating and interviewing witnesses, determining what happened, determining charges Measures in place to address delays Early guilty plea Remote hearings eg. online magistrates court (mainly used in covid) Cultural differences: Lack of knowledge of legal sustem  Lack of understanding of english language Failure of the legal system to account for differences Cultural misunderstandings ○ Direct questioning - can be inappropriate for some first nations peoples who are not used to this method ○ Body language - direct eye contact is seen to be disrespectful to first nations people which may make them appear uninterested or unreliable to those who do not understand these customs Measures in place to address cultural differences Koori court ○ Division of the magistrates court and county court is a sentencing court ○ Aims to reduce overrepresentation of first nations in the criminal sustem and improve overall outcomes ○ Limited in that it is a sentencing court only Purposes of sanctions Rehabilitation - Offender learns from mistakes - Able to imporve life - Become a law abiding member of society Punishment - Experiences hardship as consequence - Punishment should be proportional to offence Deterrence - Specific - individual - General - community - Discouraged from reoffending - Want to avoid consequences Denunciation - Community disapproval Protection - Keeping community safe Types of sanctions Fines - Monetary penalty paid to gov - Caluclated by penalty units Rehabilitation: n/a Punishment: depends on amount to determine how much hardship suffered General deterrence: depends on community knowledge and amount Denunciation: little shame , imposed for so many offences Protection: n/a CCO: Non custodial sanction that allow the offender to serve the sanction in the community - Flexible because terms can be varied to suit the offender - Every CCO must have core terms and at least one additional condition Rehab: yes because of additional condition eg. drug treatment programs and counselling Punishment: yes in some conditions Deterrence: speicific Denunciation: low Protection: dependant on conditions Imprisonment: - Offender is held in a state owned facility and loses their freedom of movement - Can only be given for level one offences - Sentencing act sets out different levels that equate to different lengths of imprisonment rehabilitation: high rates of recidivism Punishment: most serious form of sanction Specific deterrence: not really, high recidivism rates General deterrence: yes in community Denunctiation: high Protections: while in prison, yes Sentencing factors Set out in the sentencing act Aggravating factors: - Circumstances that increase the culpability of the offender - Use of violence - Planned offending - Breach of trust by offender towards victim Mitigating factors - Circumstances that reduce the culpability of the offender - Offender showed remorse - Early guilty plea - Effort towards rehabilitation - Victim impact statement - Acting under duress Unit 4: aos 1 Unit 4: aos 1 Tab 4 The roles of the crown and the houses of parliament in law making Commonwealth parliament Lower house: house of reps 151 seats Each seat represents an electorate therefore more populated states have more electorates Aus labour party - government 1. Initiating and making laws a. Any member can initiate laws b. Must be passed by majority then moves to next house for same process 2. Determining gov a. Party with most members forms gov b. Hung parliament → no political party won majority, party with most seats needs support of independents to form government 3. Representing people 4. Scrutinising government administration 5. Acting as a house of review 6. Controlling government expenditure a. Money bills - bills related to government expenditure including new taxes must start in the house of reps Upper house: senate 1. Act as a house of review 2. Allowing for equal representation of the states a. Section 7 of the constitution was written for this purpose 3. Scrutinizing bills and government administration 4. Initiating and passing bills a. In all areas except money bills Crown: governor general 1. Granting royal assent 2. Withholding royal assent 3. Appointing executive council a. To give advice to the governor general on government matters Victorian parliament Lower house: legislative assembly 1. Form government 2. Represent the people 3. Act as a house of review 4. Control government expenditure 5. Scrutinise government administration Upper house: legislative council 1. Act as a house of review 2. Scrutinise government administration 3. Initiate and pass bills Crown: governor 1. Grant royal assent 2. Withold royal assent 3. Appoint the executive council Law making powers of the state and commonwealth parliaments Residual: Powers of states - not listed in the constitution Eg. criminal law, road laws, education Section 51 and section 52 of the aus constitution set out the exclusive and concurrent law making powers of the commonwealth law Exclusive: Can only be exercised by the commonwealth parliament Eg. defence, currency Concurrent: Powers that the commonwealth and state parliaments share Eg. trade, taxation, quarantine Section 109. Resolves inconsistencies of law (ultra vivres) - When a law of the state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid Eg. McBain’s case Doctor who provided IVF treatment, claiming that the victorian statute law infertility treatemnt act 1995 (vic) was inconsistent with the commonwealth statue law (sex discrimination act 1984) Vic law states that the woman to recieve ivf tretment she needed to be in a denuiene domestic or de facto relationship Commonwealth law stated that it ws unlawful to refuse a service based on marital status Mcbain claimed the state law was inconsistent with commonwealth law - Was successful and section 8 of the victorian law was made invalid Tasmanian dams Background: 1. Commonwealth passed the world heritage properties coservation act 1983 to stop the building of the dam in the franklin river area 2. Their power was cited under the external affairs provision (s. 51 xxix) based on obligations from an external agreement (the world heritage convention) which aimed to protect world heritage areas 3. In response, the tasmanian government which had passed the gordon river hydro electric power development act, challenged the legislation in the high court, arguing that it was a state issue and the commonwealth had exceeded its consitutional powers High court decision 1. 4:3 decision that the commonwealth parliament could create laws to fulfill its obligations under an international agreement  2. This decision expanded the interpretation of ‘external affairs’ to include areas covered by international treaties 3. Commonwealth act took precedence over tasmanian governments act under section 109 Impact on division of powers: 1. Inconsistency between the world heritage properties conservation act and the gordon river hydro electric power development act Significance: 1. Commonwealth could make laws about a range of issues previously thought to be beyond their power as long as there was sufficient connection to an interantional agreement or treaty Factors that affect the ability of parlaiment to make law Bicameral structure of parliament Bicameral means having two houses - contained in the constitution Bill needs to be passed in identical form by a majority of members in both houses to become law No government majority in the upper house (hostile upper house) Balance of power is likely to be held by the crossbenchers, meanign the government needs support of the opposition or some or all of the crossbenchers Crossbench can force government to make changes to their bills or reject them entirely by voting ith the opposition Sometimes the minor parties may not hold the views and values of the community leading to laws being passed that are not representative of community values Rubber stamp upper house - government holding majority in both upper and lowe house Can prevent the upper house from fulfilling its role as a house of review as members may vote along party lines rather in favour of the community Bills may not be adequately debated Law making process Stages of a bill Slow to pass laws because of complexity Sitting days Bills can only be seated and passed on sitting days Relatively few sitting days Can be effective as other days members are in community getting community ideas and values International pressures: Demands or forces applied to parliaments to persuade them to make law to address matters of internaitonal concern Non governemtn organsiations - eg. amnesty international and human rights watch Transnational corporations (tncs) eg. meta and googel Eg. pressure to act on climate change United nations described climate change as a global emergency Calling on australia to act on climate change Representative nature of parlaiment  Parliament is elected by the people - if members fail to make laws to reflect community views and values it can jeopardis their changes of being reelected Representative nature of parliament encourages members of parlaiment to listen to the views of the community Fixed term elections give parliament a specified period to implement their programs - under section 7 adn 24 of the constitution Can be difficult for parlaiment to assess majority views where there are conflicting views on controversial issues Eg. roach vs electoral commission - Ruled that electoral and referdum amendment act was invalid because of sections 7 and 24 - Restricting the right to vote is only absolutely necessary when a person is of unsound mind and imprisoned for 3 or more years Constitution cts as a check on parliament in law making Seperation of powers - Enshrined under section 61 and 71 Executive: Develops policy, administers statute law and suggests changes to the law Legislative: Makes satute law and changes statute law Judicial: Interprets the law and makes common law Express protection of rights Section 116. Freedom of religion - Limiting, doesnt say that the commonwealth cannot make laws on religion, justy on the areas that 116 proscibes - Doesnt act as a complete restriction Section 51 (xxxi) JUST TERMS The right to receive “just terms” ( fair compensation) if the Commonwealth acquires property Section 80 JURIES The right to have a unanimous verdict from a jury when an accused person is tried for an indictable Commonwealth offence e.g. terrorism  Section 92 INTERSTATE The right to be free from unreasonable state or Commonwealth TRADE → impact states as burdens on interstate trade and commerce (expanded by the High well as commonwealth law Court’s to include movement of people as well as goods & services) making power Section 116 RELIGION There is a limited right to freedom of religion. There is a right to be free from Commonwealth laws establishing a compulsory religion, preventing the free exercise of a religion, mandating compulsory religious practices, setting a religious test for a Commonwealth job, or prohibiting the practice of atheism (expanded by the High Court to include atheism) Section 117 STATE The freedom from state laws discriminating or imposing an unfair RESIDENCE → impact states burden on the basis of out-of –state residence, when in another state as well as commonwealth law making power Reasons and effects of statutory interpretation Reasons 1. Problems during the drafting process it may not be clear how the legislation applies to the particular facts before the court, so the court may need to use statutory interpretation to resolve the dispute (civil) or determine if the accused has committed a crime (within the meaning of the legislation) Resolving problems that occur during the application of statutes 2. Challenges applying the law to a case Broadness of legislation being drafted in broad terms can lead to uncertainty Wording of legislation may be out of date May no longer reflect the community values Meaning of words can change over time Effect Words or phrases are given clearer meaning and applied to the case The interpretation of the legislation is binding on the parties (although there is a right to appeal) A precedent will be set for future cases to follow if the future cases are in a lower court in the same court hierarchy The meaning of the legislation may be restricted or expanded New law is made The wording of the stature is not changed - only the interpretation of the wording (only parliament can change the wording) Features of the doctrine of precedent Both enables and restricts the ability of the courts to make law Ratio dicedendi - the legal reasons given for the decision Stare decisis - determining points in litigation according to precedent Obiter dictum - observations, comments and points that the judges makes, but is not required in order to decide a case Binding precedent: Binding on court if the precedent was made by a court that is higher in the hierarchy (superior  courts of record) If a superior court interprets the words in a statute to give these words a new meaning, the new meaning is the binding precedent Persuasive precedent: Seriously considered but not required to follow Legal principle is persuasive when: ○ The precedent is set in a lower court e.g. county court ○ The precedent comes from a different jurisdiction ○ Material facts are substantially different ○ Remarks are part of obiter dicta Reversing a precedent: when a superior court changes a previous precedent set by a lower court in the same case on Appeal, thereby creating a new precedent which overrides the earlier precedent. Overruling a precedent: when a superior court changes a previous precedent established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent. Distinguishing a precedent: the process by which a lower court decides that the material facts of a case are sufficiently different from those of a case in which a precedent was established by a superior court so that they are not bound to follow it. Disapproving a precedent: when a court expresses dissatisfaction with an existing precedent but is still bound to follow it. Developing a precedent: when a court utilises a precedent in a different manner If a case the high court determines that parliament has gone beyond its law making power, Parliament is not allowed to abrogate common law Factors that affect the ability of courts to make law Doctrine of precedent Creates consistency and predictability There is difficulty and cost locating relevant precedents though Difficulty in idenitfying the legal reasoning behinf a decision Difficulty in predicting future developments Restricts the ability of the lower courts to change the law in cases where they are bound to follow a previsou precedent established by a higher court Judges in superior courts may be reluctant to reverse or overrule existing precedents While not being technically bound by their own court’s previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them Judicial conservatism the underlying view of conservative judges is that the proper role of judges is to say what the law is, not to change or what they think it should be Less likely to change precedent Will disapprove, might distinguish and reluctant to override precedent Judicial activism the underlying view of activist judges is that one of the roles of judges is to make sure that the common law reflects contemporary attitudes and provides justice More likely to change precedent Relationships: Judicial conservatism restricts the ability of the courts to make major and controversial changes in the law Judges may not consider a range of social and political factors when making law However Conservatism can limit the ability of the courts from being relevant and up-to-date. Judicial conservatism hides the fact that judges make subjective decisions & value-judgements because each case is different, even where the material facts are similar. This means there is ambiguity and judgement-calls are required. Eg. MABO CASE: - Eddie mabo brought a case to the high court claiming that he had ownership of murray island - The high court found that he had true ownership of the land and recognised the native title and abolsihed terra nullis - This was found to be highly influential for the commonwealth parliament so they codified the decision and founded the native title act Costs and time Costs of legal representation Court fees Time involved Requirement for standing Relationship between courts and parliament in law making Parliaments supremacy: - Has power to confirm or abrogate decisions mad ebay courts (except when the high court has mde a decision on a constitutional matter - Responsible for passing legislation to create the courts and determine their jurisdictional power - Can change the severity of the cases that courts can hear Ability of courts to influence parliament  - Judges comments when making a decision, either obiter dicta or ratio dicidendi may influence and inspire parliamnet’s contribution to law reform - Courts decision may highlight a problem or cause public outcry that pressures parliament to make law - Judicial conservatism or activism may influence parliament to abrogate or codify common law and make it into statute law Codification of commonw law: - To collect common law on one topic together into a single statute/ act - Reinforces or endorses the principles established in court rulings - Gives parliament the opportunity to clarify, expand or reform the relevant area of law Abrogation of common law - Cancellation of common law by passing an act of parliament - Power to pass legislation that abrogates decisions made through courts (exception of high court with consititutional matters) - Can lead to unjust law if parliament overrides a valid legal rpinciple/ court decision that has been extablished and considered by multiple independent judges who have expertise