Legal Notes PDF

Advise – use your knowledge of the legal process, incorporate the stated facts of the case and draw a conclusion. Example: Kellie has been charged with culpable driving, having been in a car accident that caused the death of Lachlan. The prosecution know Lachlan’s family are devastated and want to...

Advise – use your knowledge of the legal process, incorporate the stated facts of the case and draw a conclusion. Example: Kellie has been charged with culpable driving, having been in a car accident that caused the death of Lachlan. The prosecution know Lachlan’s family are devastated and want to see Kellie punished severely. Senior Constable Angela, who attended the horrific scene of the accident and interviewed Kellie, has since taken stress leave. Kellie’s boyfriend is reluctant to give evidence about her drinking alcohol prior to the accident. Kellie’s barrister approaches the prosecution indicating she would be prepared to plead guilty to the lesser charge of dangerous driving causing death. Advise the prosecution as to whether a plea negotiation is appropriate in this instance. Justify your response. (4 marks) Signposting: I feel a plea negotiation is appropriate/not. One reason I advise that a plea negotiation is appropriate is… A second reason I advise that a plea negotiation is appropriate is… On the other hand, the prosecution does need to consider that… However, given the benefits regarding securing a conviction for the criminal act, I believe that (draw a conclusion) Justify your opinion – state your position and if you agree, justify your position through strengths and weaknesses if relevant, rebut the opposing argument and link back to the question and the principles of justice. Example: The author of a journal article wrote the following opinion: ‘Juries should not decide matters of fact. It should all be left up to the judge.’ To what extent do you agree with this opinion? Justify your answer. (8 marks) 0 Signposting: I disagree… The first reason I disagree is… Additionally, I disagree with this statement because… Further, this statement is… Judges shouldn’t determine the outcome of trial and matters of fact because… Discuss – show both sides of the arguments and the concept’s positives and negatives; do not need to reach a conclusion. Example: Sam, 23, has prior convictions and drug and alcohol addictions. Sam has been charged with three indictable offences, including armed robbery. The prosecution alleges that Sam was in possession of high-heeled shoes when committing the armed robbery and, therefore, possessed an ‘offensive weapon’ within the meaning of the Crimes Act 1958 (Vic). Sam meets with lawyers at their office and is advised that there is no precedent for whether high-heeled shoes are an ‘offensive weapon’. Provide one sanction that may be imposed if Sam is found guilty and discuss the ability of that sanction to achieve its purposes. (5 marks) Signposting: One sanction that may be imposed is... A purpose of sanctions is... One way (sanction) promotes (purpose) is However, (sanction) can be limited in the achievement of its purpose as... A second purpose of sanctions is... (Sanction) strives to achieve this purpose by... Conversely, (sanction) can impede the achievement of its purpose through... Discuss the extent to which – how much does this concept achieve (eg principles of justice, its purpose)? Make a statement ie damages achieve their general purpose to a large or limited extent. Go on to explain ways in which damages achieve their purpose and ways in which they do not, then link bank to the facts of the case. Evaluate – describe both strengths and weaknesses of a body or process, link back to the question’s subject, incorporate the principles of justice where appropriate and draw a conclusion about the topic’s overall value or worth. Signposting: Typically, (subject) is very effective at... A reason for (subject)’s effectiveness is its use of... Conversely, (subject) can hinder its achievement of (ie principles of justice), thus its overall effectiveness, as… Additionally, (subject) strives to honour its effectiveness through... Contrarily, this is limited by… Despite these limitations, the significant benefits of (subject), being (advantage one) and (advantage 2), mean it is... Whilst similar, discuss is simply considering the strengths and weaknesses, whereas evaluate requires a thorough consideration of strengths and weaknesses and reaching a conclusion about the subject’s overall value as an element of the legal system. Do you agree? – make a statement regarding your position and justify this opinion by giving reasons and discussing the strengths and weaknesses of the concept. Often a task word which requires a response to a prompt – often a quote. Remember to address every element of the prompt and incorporate it into your answer. (Click to return home) Unit 3 AOS 1 Brief Overview Under the Australian Constitution, laws regarding criminal justice falls under the jurisdiction of the State Parliament (legislation), not the Commonwealth (federal). The state is repped by a prosecutor on behalf of the Crown (typically DPP) v the accused. Victim is not a party in court proceedings. Vic. Pol., VicRoads & Worksafe Vic can pros. in Mag. (Click to return home) 3.1.1 THE PRINCIPLES OF JUSTICE Fairness is impartial and just treatment w/o prejudiced discrimination. Differs & overlaps w/ equality. Demonstrated through jury, presumption of innocence, legal aid, healthy discrimination like interpretation & additional assistance, bail system, knowledge of court proceedings & opportunity to present a defence. Equality is equal treatment regardless of personal characteristics/beliefs, free from bias (impartial). Demonstrated through same rules for all parties, use of juries & representativeness, sentencing indications, due process, availability of legal aid. Access is the ability to access and make use/sense of the criminal justice system. Demonstrated through legal aid & education, access to courts & other institutions, committal proceedings (paint swatch), plea negotiations & sentence indications free up court backlog and participation in jury duty serving. (Click to return home) 3.1.2 KEY CONCEPTS IN THE VICTORIAN CRIMINAL JUSTICE SYSTEM Summary offences are minor, heard in Magistrates Court by a Magistrate, not judge or jury. Can be heard in absence of accused, final hearing is called a hearing. Includes petty theft, disorderly conduct, and vandalism. Statute = Summary Offence Act 1966 (Vic) Indictable offences are serious, heard before judge and jury of 12 if accused pleads not guilty, cannot be heard in absence of accused. Original jurisdiction, County & Supreme. Can be heard and tried summarily in Mag if appropriate; cheaper, quicker, lesser sanction. Includes homicide, rape, culpable driving causing death. Final hearing is called a trial, statute = Crimes Act 1958 (Vic)  Burden of proof lies refers to the onus of the prosecution to prove the guilt of the accused beyond reasonable doubt. Can be reversed if accused pleads self-defence, defence must then prove the accused’s innocence. Supports fairness and the presumption of innocence. Standard of proof refers to the degree of proof required to secure a conviction; in a criminal trial, this is beyond reasonable doubt. Supports fairness. Presumption of innocence is the notion whereby an accused is to be considered innocent until proven guilty beyond reasonable doubt in a court of law, and thus, shall be treated accordingly. Guaranteed by Charter of Human Rights and Responsibilities Act. Maintained by burden of proof and the bail system. Includes right to silence, and prior convictions to be revealed to the court during the sentencing process only and no earlier.. Supports fairness. (Click to return home) 3.1.3 RIGHTS AVAILABLE TO AN ACCUSED IN A CRIMINAL TRIAL Charter of Human Rights and Responsibilities Act 2006 (Vic) (Human Rights Charter) protects and promotes rights. Based on and mirrors International Covenant on Civil and Political Rights 1966, Australia is signatory. Right to be tried w/o unreasonable delay, entitled to trial in timely manner, only reasonable delay (prepping cases, large-scale cases). W/o discrim. (age, prior history, disability). Minors to be tried asap. Recognises basic right to liberty & security, upholds fairness and the presumption of innocence. Right to fair hearing, charge to be determined by competent, independent & impartial court after public hearing. Open to media & public scrutiny of law application and processes and ensures transparency. Mag. can deem closed hearing from public and media if may cause undue distress to victims (eg. sexual offences), eg. Dietrich v The Queen (1992) 177 CLR 292. Right to trial by jury, protected by Constitution and statute law, not HRC. Provides fair trial by peers in community. Jury empanelment necessary for non-guilty plea for indictable, no right to jury for summary. Must be sure of guilt beyond reasonable doubt. (Click to return home) 3.1.4 THE RIGHTS OF VICTIMS IN A CRIMINAL TRIAL Victims Charter Act 2006 (Vic) (Victims Charter) recognises impact of crime on victims and provides guidelines for provision of information. R to give evidence as a vulnerable witness, someone req. to give evidence considered impressionable/ at risk. Eg. minor, cognitive impairment or victim of a sexual offence. Criminal Procedure Act recognises distress associated w/ giving evidence. Four protections include: alternative arrangements include evidence via CCTV, screens to block vision, support person in cases of sex. offence, family violence or public indecency, protects witness and the reliability of testimony. Automatically available to complainant. Protected  witness declaration, only to be cross-examined by defence attorney, not accused. Special arrangements, exam-in-chief via audio/visual-recording to be played in court, only authorised people to be present in courtroom. Evidence Act gives court power to disallow improper questions that are humiliating, confusing or embarrassing. R to be informed about proceedings, Victims Charter enables victim certain info about proceedings and criminal justice system. Police, DPP, Victims of Crime Commissioner (investigatory agencies) to provide clear and consistent regular info about support services, compensation entitlements and legal assistance and the status of investigation. Not required if unwanted or may jeopardise investigation. Also, info about details of offence, name of offender, outcome of bail proceedings, sentencing and appeal details, time/date/place of hearing. R to be informed of likely release date of offender, victims of violent crimes need to apply to Victims’ Register (database which provides info on offender and likely release date) through the Department of Justice. Can receive info on likely release/parole, sentence length, escapee - needs to be provided at least 14 days in advance. Other rights include victim impact statement (considered when sentencing, states injury, loss or damage as result of crime). (Click to return home) 3.1.5 THE ROLE OF INSTITUTIONS AVAILABLE TO ASSIST AN ACCUSED Legal aid is advice, education and info about the law and provision of legal services. If accused cannot afford legal rep, VLA & CLC’s (generalist and specialist) can help. Vic. Legal Aid provides free/low-cost legal rep to those from low socio-economic backgrounds providing they meet the means and income test. Purpose to provide help in economic and efficient manner, provide community w/ access to the legal system, manage its resources to make legal aid reasonably priced on an equitable basis. IT is for duty lawyers (VMC) on the day, eligible if provide current Centrelink card. MT is for legal assistance (rep), takes into account assets. Eligible if earning less than $360 per week. Criminal Procedure Act 2009 gives court power to adjourn trial until VLA provides legal rep should the absence of counsel subject an accused to significant disadvantage that may compromise a fair trial. Community Legal Centres provide info, advice, duty lawyer assistance & legal casework services to those who can’t afford it. Rarely take on criminal cases/legal rep. Generalist CLCs provide broad legal services to geographical areas, specialist CLCs focus on certain populations (eg. youth, refugees, those with cognitive impairments) and specific sectors of the law. CLCs consider nature of legal matter, if VLA assistance is available, if CLC can actually help, chance of success. Mostly deals with summary offences. VLA funded by Vic & Comm, received $140.7mill in 2015-16, mostly from Vic Gov. Low funding means they have to deny many applicants, thus inhibiting access and fairness. CLC funded by state and federal government and private donations. Provide help to 200,000+ annually; turn away 150,000+ due to lack of resources. (Click to return home) 3.1.6 THE PURPOSES OF COMMITTAL PROCEEDINGS Committal proceedings are criminal pre-trial procedures. Occurs if accused has one or more indictable charges and has plead not guilty. Consists of a number of stages, including main & final, committal hearing. If Magistrate determines evidence of a sufficient weight exists to support a conviction, case will proceed to trial. Accused is committed to stand trial and released on bail, unless a flight risk, in which accused will be held in remand. If not enough evidence, accused is discharged, but if further evidence is found in the future, case can be brought before court again. When committed, DPP will receive documents and file an indictment in the VCC or VSC. Indictment is a written statement of charges and filing will commence a criminal proceeding. Purposes: filters out weak cases, allowing only cases with sufficient evidence to support a conviction to go to trial (prima facie & paint swatch), thus increasing access by ensuring weak cases don’t further contribute to the congestion of the courts. Also preserves the resources of the court and its personnel; ACCESS. Determines if appropriate to be heard summarily. Also ensures a fair trial due to disclosure of evidence between parties and opportunity to cross-examine; as such, enables defence to construct an adequate defence, thus upholding fairness and equality. Strengths include saving court resources and time by filtering weak cases, accused to be informed of pros. case, supports presumption of innocence through burden and standard. Weaknesses include complication (cross-examinations, submissions), added cost for accused, can add to delay for already strong cases (reduces access) and contributes to stress and trauma for all parties, thus potentially hindering the achievement of access and fairness. (Click to return home) 3.1.7 THE PURPOSES AND APPROPRIATENESS OF PLEA NEGOTIATIONS AND SENTENCE INDICATIONS PLEA NEGOTIATIONS are pre-trial discussions between pros. and accused aimed at resolution through an agreed outcome (less or fewer charges). Free negotiation and any offers cannot be used against them if unsuccessful. Does not determine sentence, only charges being plead guilty to. Can happen at any stage, even before charges laid. Victims views to be taken into account (appropriateness). Purposes: can result in early resolution (access) and ensures charges adequately reflect committed crime. Rids usual process that causes stress, trauma, hefty cost and excessive waits. Appropriateness: if in public interest; cooperation of accused taken into account; strength of prosecution case, likelihood of long trial, reluctant witnesses in regards to evidence provision. Thus, can achieve access and fairness, though the latter may be compromised due to an accused typically receiving a lesser sentence due to typically pleading guilty to a lesser charge  Strengths include prompt determination, saving money, court resources (ACCESS) and trauma/distress of trial, certainty in outcome. Weaknesses include possibility of lenient sentence, self-represented accused may feel pressured to accept, avoiding the need to prove the case beyond reasonable doubt. SENTENCE INDICATIONS are statements made by the judge to an accused in regards to the potential sentence they’re facing if pleading guilty. A means other than plea negotiations to encourage an early resolution, supporting access, and to result in a guilty plea without a full trial. Criminal Procedure Act allows them in County & Supreme for summary and indictable. In indictable cases, indications must be applied for with the consent of the prosecution, unlike summary, which can be given at any time. Mostly an indication of the likelihood of an immediate sentence of imprisonment. Sentence indications cap the maximum sentence imposable given that the accused pleads guilty at the first available opportunity. If the defendant doesn’t plead, a different judge will preside and they will not be bound. Purposes: provides clarity about the likely sentence and enables an accused to make an informed decision as to whether they’re to plead guilty (ACCESS). Also saves time, costs and resources of the courts (ACCESS). Appropriateness; nature of the offence, Sentencing Advisory Council states they may not be appropriate for sensitive cases, court hearing the charge (Supreme cases are likely to result in custodial sentences), the strength of evidence against the accused. Strengths are early determination, saving money and resources, certainty about likely sentence, procedural fairness as accused does not have to accept indication and plead guilty. VIS can be considered in the indication, different judge will hear case if no guilty plea. Weaknesses include judge not obliged to grant request, denies victim day in court, indication may occur before all facts are laid out. (Click to return home) 3.1.8 THE REASONS FOR A VICTORIAN COURT HIERARCHY IN DETERMINING CRIMINAL CASES Original, a case’s first port of call to be heard in court; appellate, a court’s power to hear a case being reviewed from a lower court. SPECIALISATION: The individual jurisdiction of each court enables judges to develop a high level of expertise hearing cases within their jurisdiction. This can lead to increased efficiency within the judiciary and a higher likelihood of a just outcome. The VSC is highly specialised in hearing serious indictable offences (murder, treason, etc.); the VCC hears all other indictable offences; the VMC hears all summary offences that proceed to court (traffic offences, public intoxication, etc.). The VSCA and its judges are also highly trained to hear appeals from the VCC and VSC as well as those from VCAT on points of law, in cases heard by the president or vice-president. APPEALS: Should the prosecution or defendant be dissatisfied with a sentence (its severity or leniency), conviction, acquittal or point/question of law, either party may appeal to a superior court of the same hierarchy to have the decision reviewed and any errors corrected. Party who appeals, appellant, other, respondent. Provides fair outcomes and  allows for mistakes to be revisited and corrected in a higher court. No hierarchy would not allow for this system to work. (Click to return home) 3.1.9 THE RESPONSIBILITIES OF KEY PERSONNEL IN A CRIMINAL TRIAL Key personnel are judge, jury, parties and legal practitioners. Judge must act impartially, not favour, no connection with prosecution or accused. Play an integral role in ensuring all legal personnel are complying with legal processes and carrying out correct procedures (due process). Act as an umpire. They manage the trial, attend to jury matters and explain foreign concepts in depth, give directions to the jury and sum up case, hand down a sentence, order legal rep via VLA, uphold principles of justice, not interfere and assist a self-represented party. Jury is decider of facts and the verdict, do not have any part in sentencing. Comprises 12 jurors representative of the diversity of a community who are sworn to deliver a verdict based on presented evidence and no outside factors. Must be unbiased and have no connection to any parties, this can result in a discharge. Listen to and remember evidence, select a foreperson, understand direction and summaries, deliver the verdict, honour confidentiality of trial. Deliberations are to be free of coercion and should represent the true beliefs of each juror. If a unanimous verdict isn’t settle upon, a majority verdict will suffice, except in cases of treason, murder or some drug crimes. Parties are the prosecution (Crown or State) vs the defendant. Prosecution must be present at all proceedings in relation to their case, act on behalf of the interest of the State. Responsibilities of defendant include liaising with representation (direct attorneys and inform them of decisions), to lodge a plea, to be present at all court proceedings in relation to their case (indictable). Must both give an opening address, assist the judge in jury matters, present the party’s case, give a closing address, make submissions about sentencing, attend trial, brush up on relevant law and act in such a way that does not seek to bias the court against the accused. Legal practitioners represent accused, prepare and conduct a case (solicitor, draft documents, communicate with opposing party, research law and develop evidence, instruct the barrister, who presents evidence and argues the case on behalf of the accused with direction of solicitor). Key duty of prosecution is to secure a just conviction, defence is to pursue an acquittal and defend their client to the best of their ability. Pros must investigate and collate evidence against the defendant, declare said evidence to defence, source and prepare prosecution witnesses, to question & present arguments and negotiate with defence (plea neg). They must be prepared, comply with their duty to the court, The defence must present the case in the best possible light, educate the accused on their rights, source and prepare witnesses (expert, coroner, or eye witnesses), collate evidence to present to pros, negotiate with the prosecution and defend the accused irrespective of any personal beliefs. (Click to return home) 3.1.10 THE PURPOSES OF SANCTIONS Sentencing Act 1991 sets a court’s power to impose sanctions. It strives to promote consistency of approach in sentencing and to provide fair procedures in the imposition. Purposes of sanctions include punishment, which should penalise offenders and should be adequate and appropriate, providing justice for victim and their family as well as retribution for impact of crime. Rehabilitation aims to treat the offender and address underlying issues, tries to change their behaviour and encourage integration back into the community as well as preventing recidivism (cycle of offending). CCOs can encourage rehab, also rehab programs in prison. Deterrence aims to discourage the general public (general) from committing similar crimes and also discourages offender from recommitting (specific). Denunciation demonstrate community and court disapproval and condemnation of offence. Protection aims to keep community safe from offender through removal from society, non-custodial sentences (CCO’s) can keep offenders busy and discourage criminal activity. (Click to return home) 3.1.11 FINES, CCOS & IMPRISONMENT AND THEIR SPECIFIC PURPOSES Upon sanction imposition, fundamental sentencing principles of totality and proportionality are paramount. Must weigh up harm to victim & society, agg & mit factors against freedom deprivation, loss of money and reputation FINES are from Level 1 to 12, 2 is highest, $460,000 (court cannot fine L1, incredibly serious, murder). Payable to State of Victoria. Deterrence, denunciation, punishment. Considers factors include wealth of offender, denunciation ability, more appropriate sanctions. One penalty unit is $158.57 (L12). Sentencing Act 1991 (VIC) grants Magistrate power to impose fines. Minimum charges ensure equality, taking into account financial situations ensures access & fairness. o Whilst fines seek to punish offenders for misdemeanours, the extent to which this is achieved is subjective. Dependent on the offender’s socio-economic background, such a sanction may have a significant impact on one individual whilst scarcely affecting another. Similarly, fines may deter offenders from low-income backgrounds, whilst those from fortunate financial circumstances mayn’t be discouraged from engaging in criminal behaviour, and thus may further contribute to the cycle of recidivism. Further, fines – whilst not typically aiming to do so – can act to denounce offenders. For example, this is especially so when a court acts to convey their condemnation of licensed venues’ provision of alcohol to minors. As such, a hefty fine may be imposed to simultaneously deter similar behaviour from other licensed establishments. CCOs are supervised sentences served in community under conditions. Opportunity to stop crim behaviour and be rehabilitated. Only imposable if convicted of crime more serious than 5 penalty units, pre-sentence report received and offender consents. Can be combined with fine or one yr imprisonment. Cannot be used for Cat1 or 2 (murder, rape, manslaughter). Must include at least one special conditions, including unpaid community work, curfew, rehab, area, person or alcohol exclusion. Punishment, spec. deterrence & rehab. Includes core conditions; mustn’t commit another offence (imprisonment), report  to CC centre within two days of order, report to and receive visits from CC officer, mustn’t leave state w/o permission, comply with directions. Fairness as gives offenders second chance, equality as imposition of CCOs are available for many offences. IMPRISONMENT removes offender from society for period, levels one to nine; nine (months) least serious, one (life). Sentenced to longer than two years, must be minimum non-parole. Concurrent runs at the same time as another sentence; cumulative is served straight after another sentence. Aggregate applies to multiple instead of separate sentences for each offence. Indefinite is a term for non-minors convicted in Supreme or Court for indictable. Only imposable if the offender poses a great risk of danger to the community due to their character, past history and nature of offence. Recidivism, rate of return prisoners within two years is forty percent. Sanction of last resort, loss of liberty and freedom. Protects society, punishes offender, chance of rehab due to prison programs, form of deterrence (general and specific), denunciation through disapproval of court, reflected in sentencing. o However, imprisonment achieves its purposes only to a limited extent. Whilst typically effective in the protection of society due to the removal of an offender for the duration of their sentence, the release of accused parties on bail and offenders on parole may subject the community to danger and enable such parties to inflict harm. Such was the case with the Bourke Street rampage in 2017 (accused released on bail) and the tragic murder of Jill Meagher in 2013 by an offender out on parole. The high rates of recidivism also postulate that imprisonment mayn’t be an effective means of deterrence nor rehabilitation (approx. 40% of prisoners return within two years of release). Further, whilst imprisonment typically punishes offenders in a manner that adequately reflects the impact of their actions on victims and society in general, the use of plea negotiations may lead to a lesser sentence which may be seen as lenient. (Click to return home) 3.1.12 FACTORS CONSIDERED IN SENTENCING AGGRAVATING FACTORS can increase seriousness of offence and offender culpability and result in a more severe sentence. Includes use of violence, victim vulnerabilities, hateful or prejudiced motivations, breach of trust (parents and child). MITIGATING FACTORS are circumstances to be considered upon sentencing that can decrease the offender’s culpability and as such, may result in a lesser sentence. This includes if the offender was provoked by the victim, if they show remorse, cooperation with authority, early guilty pleas, youthful offender, efforts made towards rehabilitation, acting under duress etc. The earlier a guilty plea is made, the possibility of a less-severe sentence is more likely. GUILTY PLEAS are considered in sentencing process (how far into the case did they plead?) Early plea – before trial or hearing – can result in a lesser sentence. If offender knows GP can reduce sentence, may cooperate earlier to avoid going to trial and enduring its time, cost and emotional upheaval.  VICTIM IMPACT STATEMENTS contain details of damage, injury or loss as a result of offence and is taken into consideration upon sentencing. Impact on victim, peers and personal circumstances of victim. Requests to have VISs read aloud in open court. Allows victims to have their say in sentencing process. Depending on the contents of the VIS, may act as an aggravating or mitigating factor. (Click to return home) 3.1.13 FACTORS THAT AFFECT THE ABILITY OF THE CRIMINAL JUSTICE SYSTEM TO ACHIEVE THE PRINCIPLES OF JUSTICE COST FACTORS can impede or enhance the ability of the criminal justice system to achieve justice. Costs of legal representation restricts, mostly impacts accused. Law Council of Australia considers it necessary to adequately uphold the law, should be available to everyone. MC plea, $1100 - $3850. MC contest $2000 - $ 8450. MC bail app $1100 - $4400. CC plea $3000 - $10756. CC 5d trial $6500 - $19500. Fees payable to solicitor. Legal aid can be sought although restrictive, many forced to self-represent, contradiction of right to fair hearing HRC. Fairness; lack of familiarity with court procedures, facilities and emotional distance from trial. Equality; risk of inequality and less chance to defend themselves as with a seasoned professional. Access; cannot afford, may be pressured to pleading due to lack of defence means. Availability of legal aid restricts, many ineligible due to lack of VLA funding, CLCs are stretched in their ability. Institutions tighten eligibility criteria, 159 220 were turned away 14-15, 74 000 granted. Impacts vulnerable (disability, cog.imp, dom.vio, Indigenous), LA avai. to less than 8% of Australians. Domestic violence victims are particularly impacted. Fairness; can assist to access CJS and obtain assistance but lack can impact victims & acc and risk an unfair hearing. Equality; aims to diminish disadvantage but ineligible may not be treated same as pros. Access; aims to increase access but ineligible may be disadvantaged and self-represent. Ass. to self-represented parties can enhance to an extent, some choose, some forced. Can challenge court, unfamiliarity with court procedures/laws. C. personnel, magistrates and judges can assist self-repped parties but not overly interfere. C.pers. can provide procedural advice, point to legal ass. and pro bono schemes. Judges & mag are obliged to ensure a fair hearing and equal treatment. Doesn’t mean gather evidence, present case or overly interfere. Fairness; judge can stay trial until rep found. Equality; judge or mag ensure trial is equal, disadvantages should be accommodated to ensure discrimination is diminished (cog.imp, disability) Access; obligation to assist ensures partial understanding of rights and procedures, fair trial. Does not mean over-interference, must still navigate complex processes. TIME FACTORS can restrict or enhance ability of CJS to achieve justice. Justice delayed is justice denied. Case preparation delays (hearing) can impede, large--scale cases require more time and resource to prepare matter for trial (OPP). Average time is 19.2 months. Delays mainly due to gathering evidence, over-reliance on hard copy documents and committal proceedings in ‘straight-forward’ cases. Affects principles of justice - fairness; delays result in emotional  strain, stigma of charge, disruption of employment and family life. (Vic & acc) Equality; can impact vulnerable and risk being treated properly before the law (elderly, cog.imp, traumatised). Access; greater wait means less accessible courts, particularly difficult for sexu.off. Court delays can impede, parties often have to wait for hearing date, court system stretched in its ability. Courts have to deal with issues such as complex cases, self-repp., and increasing number of cases. County Court applicants can wait between 8 & 12+ months for trial. Fairness; hinders right to be tried without unreasonable delay, significant strain on vic and acc. Can also impact evidence (memory loss, large crime scenes). Equality; potential disadvantage to vulnerable compared to less v. Access; less accessible courts for long waits which may result in compromise between parties for early resolution. Plea negotiations and sentence indications can enhance, may achieve early resolution or finalisation, resources to be used elsewhere. SIs can encourage acc to plead guilty once they know likely sentence. “77% guilty pleas finalised”. Fairness; opportunity to plead or seek SI but no obligation. Ensure charges adequately reflect offence, avoid burden of trial, although some in society see these as lenient. Equality; available to most acc, equal opportunity to negotiate or seek, although victims may feel disadvantaged or cheated of justice. Access; avoid trauma, stress and inconvenience of trial and enables better access to courts. Victims are often consulted although do not determine plea negotiations. Expedition of appeals in VSCA can enhance, Ashley-Venne appeal reform include filing of grounds of appeal/sup. Arguments early in leave (permission) application, more detailed and uniform paperwork. Significant reduction on time to finalise appeal, six months compared to 12.5 in 2010-11. Fairness; quicker appeal process can reduce trauma of parties and reduce excessive periods before finalisation, honours fair/hearing without unreasonable delay. Equality; time reduction can reduce trauma and inconvenience, ensuring equality specifically vuln. Access; time reduction can increase access to justice and an adequate outcome. CULTURAL FACTORS can restrict or enhance ability of CJS to achieve justice. Difficulties faced by Indigenous populations during questioning and giving evidence can impede, complex laws and customs. Language barriers and misunderstandings with definitions,, eg kill or story. Direct questioning may make people look evasive or dishonest when they’re being respectful. Direct eye contact, potentially disrespectful. Shyness and submissiveness, may answer to please questioner or plead even if not guilty w/o realising implications. Cultural taboos, forbidden to speak name of some. Lack of understand of court procedures, confusion about exam-in-chief or cross-exam. Fairness; questions may risk accused making unintended admissions of guilt, risk of procedural unfairness due to different customs and LoUnd. Equality; cultural diffs impact ability to be seen equal before law, unfamiliarity can cause confusion about case processes. Access; inability to understand processes and terminology, rights and CSystem can affect access to CJS. Overrepresentation of Indigenous populations in prison can restrict, Indigenous population over 18 2% of Aus pop, 27% of prison pop. 8% VIC pop, 84% NT pop. Fairness; language amongst other issues can cause misunderstandings between lawyers and Indi, resulting in unfair processes and hearings. Equality; over-rep demands greater court attention to  honour complexity of their legal needs, which can inhibit justice. Access; lack of legal resources can result in poor access to justice, vulnerable and over-repped. Use of Koori Court for sentencing can enhance, div of Mag, County & Children’s. Provides fair, equitable and culturally relevant justice services and greater protection. Indigenous person + within court juris (not used for sexual offences) + consent of acc + guilty/intended guilty plea = Koori Court sentencing. Proceedings are informal, understandable by all parties and others present. 11 adult Koori Courts and 12 Children’s Koori in VIC, established 2002. Fairness; limits possibility of unfair trial by ensuring comm, informality and layout is more familiar and elders and involved. Equality; can overcome some cultural difference issues, informality and involvement of elders reflect equality. Access; informality, involvement of elders and understanding of proceedings can address inequities and access to only guilty offenders. Use of interpreters can enhance, right to free interpretation covered by HRC to those EAL. OPP solicitor arranges and pays, Mag in summary. Area for possible reform. Fairness; use of interpreters can bridge language gap and ensure smooth comm. Equality; inability to communicate may affect treatment and jeopardise case – helps ensure that case ensures no discrimination and comm w/ legal bodies. Access; CALD persons can be assisted by use of interp. and ensure legal advice and info. in languages understood. (Click to return home) 3.1.14 RECENT REFORMS AND RECOMMENDATIONS FOR REFORM TO ENHANCE THE ABILITY OF THE CRIMINAL JUSTICE SYSTEM IN THE ACHIEVEMENT OF THE PRINCIPLES OF JUSTICE Recent reforms addressing cost factors Greater access to legal services in Hume/Goulburn region - provides access to courts and legal aid for sig pop, focuses on vulnerable (fam.vio and child prot); does not address funding issues, strict VLA eligibility – many gaps to fill via reforms by lack of legal aid. 2016 Free online pro bono assistance tool – Robot Lawyers helps fill gaps in legal services and assists self-repped, accessible to many except those without computers, doesn’t address all gaps. 2016 Recent reforms addressing time factors Increase in court technology – VCC and VSC aiming to become paperless to increase efficiency. VCC records info so it can easily be replayed for convenience, time and cost factors. Good for witnesses and parties, efficiency and environment. 2017 Removal of jury deliberation time limits – Juries Act 2000 amended in 2017 so majority verdict can be accepted earlier than original six hours to accept unanimous. May reduce by only short period, more efficient, doesn’t apply where unanimous verdict is required. Recent reforms addressing cultural difference factors Expansion of Koori Court – Mildura court opened to allow greater access to Indigenous populations for sentencing, emphasis on importance, doesn’t address prison overrepresentation, sentencing only. 2016  Funding for Indigenous prisoners’ programs - $2.5mil grants from VicGov to rehab Indigenous prisoners, focusing on cultural strengthening, parenting and tackling fam vio. Aiming to reduce overrepresentation in prisons, limited funding and short-term solution. 2017 Recommended reforms addressing costs factors Increase in funding for legal assistance – Victorian Access to Justice Review Report recommends additional state funding for LA, priority for duty lawyers, fam.vio and Indigenous legal services. Comm funding also, taking into account pop growth and demand. Most recent increases are unlikely to suffice; governments often reduce instead of increase. Increased pro bono schemes – VAJRR recommends an online service in which CLCs and others who offer pro bono can advertise their need and be matched with lawyers. Will enable greater comm. and access to lawyers, although requires lawyers willing to work for free and unlikely to fill entire gap. VicGov agreed to implement recommendation in May 2017. Recommended reforms addressing time factors Abolition of committal proceedings – consideration of VicGov in 2012, not currently priority. Stated that they cause backlogs and unnecessary for some, adding delays, excess stress and cost. Abolition may deny accused right to test evidence and risk rule of law & pres of inn. Case management by VSC – proposition of flexible early case management for some indictable offences for VSC to manage case from original charge to trial. Draws on VSC expertise early, may assist with delays but could require significant resources and unclear whether substantial delay reduction would occur. Recommended reforms addressing cultural differences reforms Improving access to interpreters – VAJR recommended adequate availability of interpreters in courts, which has since lead to VicGov’s commitment for additional funds, although its sufficiency is unclear. Likely to be $$ and may not meet demand. Continued focus and expansion of Koori Courts – it is expected that the County Koori Court will face expansion into other areas of Vic. Will help ensure equality in sentencing, allows greater access but does not address over-rep issues. CIVIL JUSTICE SYSTEM Fairness means fair processes and a fair hearing/trial (inc pre-trial & mediation) in civil. Parties should be aware of case against them so can adequately prepare, dispute res processes should operate to ensure no disadvantage and impartiality is guaranteed. Aspects of fairness include timely dispute res, availability of legal rep, appropriate assistance and proper understanding, compliance with due process and proper law application and ensured bias-free treatment of parties. Equality means all people are equal before the law, same treatment for all and equal opportunity to present a case in civil, free from bias and prejudice. Aspects of equality include impartiality of judge and jury, conformance to due process, the extent to which CJS  is available to all, disadvantage faced by vulnerable (Indigenous, disabled, low socio-eco), the impact of legal rep and its availability and the opportunity to be equally repped. Access means the ability to approach and make use of the legal system when pursuing a civil claim. Should be able to get info, use procedures and ADR methods & institutions to resolve disputes. Aspects of access include avail. of methods and bodies to resolve disputes, interpretation services, associated costs and delays, complex nature of civil procedures, avail. of legal adv & ass, formalities of trial and courts. (Click to return home) 3.2.2 KEY CONCEPTS IN THE CIVIL JUSTICE SYSTEM Standard of proof on the balance of probabilities, party whom is more likely to be in the wrong than not (liable); 51% - 49% can result in a win. Much less strict than criminal. Plaintiff has burden of proof, ‘onus to prove guilty’. Defendant can have burden of proof onus if a counterclaim is lodged or if a certain defence is raised (contributory negligence in a negligence claim). Upholds fairness. Representative proceedings - or class actions/group proceeding - is a civil claim initiated by a lead plaintiff on behalf of at least seven other members who all have a claim arising from the same or similar nature/facts. Types include shareholder class action, product liability class action (Toyota recall) & natural disaster class action (Jack River bushfire). ‘Loser pays’. Benefits of CAs include; group members can share costs, more efficient and reduces number of individual claims, people can pursue civil actions they ordinarily would not be able to afford in an individual case and litigation funders can fund the CA in return for a portion of the settlement, ultimately increasing access. However, a significant amount of the settlement may be payable for fees, especially to litigation funders, thus reducing the damages obtained. CAs may also increase number of unmeritorious actions against businesses. SIGNIFICANTLY INCREASES ACCESS.` (Click to return home) 3.2.3 FACTORS TO CONSIDER WHEN INITIATING A CIVIL CLAIM NEGOTIATION OPTIONS; can it be solved through ADR or a tribunal? Can reduce time, cost, emotional upheaval and animosity; advisable for all (ACCESS). Encouraged to resolve dispute individually before hiring third party (ADR). Beneficial as time & costs of court are avoided, parties have control over outcome, more prepared to accept mutual agreement rather than court-ordered. Not advisable when one party refuses, previous attempts have failed, risk of violence or harm, urgency to hear in court, significant power imbalance (young employee against a wealthy employer). COSTS include fees for legal rep (billable hours), court costs & disbursements (out of pocket eg expert witness). Engaging a solicitor and barrister is $$$, can be prohibitive and cost of legal rep dependent on complexity, length, expertise, size of case and court. Disbursements include court filing fees, court hearing/trial fees, jury costs if applicable, mediation fees and expert witness fees. Adverse costs is ‘loser pays’ for theirs and  opposition. Imposable through a court order. VLA provides some legal rep for civil but tight eligibility criteria. Prioritised to crim & fam cases. Plaintiff needs to consider dispute resolution cost, their financial status, VLA eligibility - can they afford adverse costs order should one be imposed? LIMITATION OF ACTIONS is the restrictive allocated period to commence a civil claim in court. Defendant can use this defence if period has expired; may bar plaintiff from obtaining a remedy. Personal injury period is three years (average), whereas defamation is 12 months. Limitation of Actions Act 1958. SCOPE OF LIABILITY, needs to determine possible defendants and their liability (how much of the onus pie?), contributory negligence is often claimed in relevant cases to decrease liability. Employers can be responsible for employees under vicarious liability as well as insurers. Accessorial liability can find some liable if they were directly or indirectly involved (eg encouraging someone to cause harm, aiding, abetting, urging or conspiring). ENFORCEMENT ISSUES – can the defendant actually pay? Will they? Follow may affect: bankruptcy, imprisoned defendant, company without assets, uncontactable and an unknown defendant (random attack). Enforcement method includes court order to seize assets and sell them to ensure settlement funds. Should any enforcement issues arise, may inhibit plaintiff’s ability to obtain a remedy. (Click to return home) 3.2.4 THE PURPOSES AND APPROPRIATENESS OF CAV AND VCAT IN THE RESOLUTION OF CIVIL DISPUTES Consumer Affairs Victoria (CAV) is a complaint body that offers dispute resolution services, focusing on the business side. Advises VicGov on consumer legislation and ensure compliance with consumer law. Provides consumers & traders, landlords & tenants, with a DRP and helps people settle their disputes efficiently without cost. Only accepts complaints from consumers & tenants, not businesses & landlords. Mainly uses conciliation in which a terms of settlement is usually drawn, reflects the agreement and can be legally enforceable (court) if breached. Purpose: to provide consumers and tenants with a constructive, cost-free and efficient method of dispute resolution in an informal and timely manner. (whatever you CCE IT as) Appropriateness: if within CAV’s jurisdiction (supply of goods/services, residential tenancies, retirement villages and owners’ corporations) ; if case is likely to settle. May not be appropriate if there is an alternative method to resolve (tribunal for larger cases? Mutual negotiation to be tried beforehand). Strengths; free conciliation service, informal process, ensures procedural fairness, timely manner (matter of weeks), encourages agreement between parties through low level of professional interference. Weaknesses; CAV’s role is limited, cannot compel parties to participate in conciliation, cannot enforce agreed decisions/not legally binding, not appropriate for large cases, informality may result in lack of seriousness deriving from one party. Victorian Civil and Administrative Tribunal (VCAT) is a tribunal. Its purpose is to resolve disputes in a cost-efficient, accessible, independent and timely manner (CAIT), as an alternative to court. Governing body; president (VSC judge), vice-pres’ (VCC judges), responsible for VCAT management and admin. Four divisions – admin (legal practice, planning & environment and review & regulation), civil (claims, building & property, owners corporations), HR (guardianship & HR) and residential tenancies. If a matter doesn’t settle, a final formal hearing will see a VCAT member make a legally binding decision. Low cost is ensured with small filing claim fee ($62.70), three tiers of fees payable (with companies with revenue over $200K paying most, ensures fairness for low socio), no hearing fees for some claims (eg less than 15K), abolition of pre-trials in many cases as well as increased self-representation. Court fees can be ongoing, from $500 filing fee in MC. Legal rep not allowed in some lists; puts parties on a more EQUAL footing as quality of barrister not needed to be matched, can relieve cases of financial hardship. Orders can include payments, compel or refrain, dismiss a claim etc. Appeals can only be made on a point of law to be heard in VSC or VSCA if heard by a president or vice- president. VCAT’s appropriateness for a case is determined through its jurisdiction and better ways to resolve the dispute. VCAT has exclusive jurisdiction to hear certain cases and review jurisdiction from some institutions. It can hear goods & service claims (from businesses, sellers and consumers), residential disputes, discrimination & vilification, retail tenancies, lawyers’ conduct etc. Can’t hear class actions, employee/r claims, disputes between drivers in car accidents, or disputes between neighbours. Parties should also consider negotiation, nature of fees, too complex for VCAT, or formality of a courtroom is preferential. Strengths: cheaper and affordable, speedy resolution, informal, flexibility ensures fairness and equality (self-representation), negotiation and ADR is encouraged to reduce animosity and preserve relationships, decisions made in a final hearing are binding. Weaknesses: can be as expensive as court (increased legal rep & hearing fees), not appropriate for large/complex cases, limited right to appeal on point of law (VSC & A if heard by pres/vice-pres, expensive), may be too informal & VCAT members not usually judicial officers with more experience, not bound by precedent due to its absence in court hierarchy, inconsistencies may develop as result. (Click to return home) 3.2.5 THE PURPOSES OF CIVIL PRE-TRIAL PROCEDURES Pleadings are a pre-trial proc, exchanged between parties, lays out and clarify claims and defences, Statement of claim defines claims against defendant and remedy sought. A defence, filed by d, sets out their response to individual claims. Claims and defences cannot be later raised if not in pleadings. Purposes include procedural fairness by compelling parties to state material facts and ensure opponent is aware, avoids ambush or surprise, gives court  written record of case, sets limits to the dispute, can assist in out-of-court settlement (eg strong case, might force opponent to settle before trial). Discovery of documents enables parties access to documents relevant to the claim and pleadings through the disclosure of all documents. Eg. medical bills and records, contract in breach of contract, invoices, abusive emails. Purposes include disclosure of documents to ensure procedural fairness and reduce risk of surprise and trial by ambush, determine strength of opposing case and likelihood of success, ensure court has relevant materials and documents to achieve a just outcome, assist in reaching an out-of-court settlement in compelling cases. Exchange of evidence is relied upon by parties to present a case/rebut. Lay evidence is that from an ordinary person, evidence about factual circumstances. May give evidence orally or viva voce under oath, as a witness outline, filing a witness statement (written form, witness only need attend for cross-exam & re-exam). Expert evidence is opinionated with expertise in a professional field (coroner, accountant). Often submitted as a written report and only within their area of expertise. Must remain independent and honour their duty to the court. Purposes include reducing surprise & ambush, determine strength of case, opportunity to rebut & prepare an adequate case, allow defendant to comprehend amount of damages sought to consider settlement prior trial. (Click to return home) 3.2.6 THE REASONS FOR A VICTORIAN COURT HIERARCHY IN DETERMINING CIVIL CASES Reasons for appeal include administrative convenience, ensuring efficient utilisation of court resources and avoiding delays. Cases are distributed according to their seriousness & complexity. Minor civil claims heard in Mag (less than 100K), less serious and quicker but more Magistrates due to high demand; major cases heard in higher courts where there are less cases which take longer to hear & expert judicial officers. VCC & VSC have unlimited jurisdiction and VSC only can hear class actions, inclusion in court hierarchy allows easier allocation of time for complex cases. Appeals are enabled through CH, allows parties to appeal to a higher court to have the case reviewed regarding concerns of remedies, question of fact or point of law. Leave is usually require in civil. (SIMILAR EXPLANATION AS CRIMINAL APPEALS, THOUGH REASONS FOR APPEALS DIFFER) (Click to return home) 3.2.7 THE RESPONSIBILITIES OF KEY PERSONNEL IN A CIVIL TRIAL Judge is an impartial adjudicator in a civ trial. Significant powers of case management (order mediation, give directions), decide on admissibility of evidence, attend to jury if applicable, determine liability & remedy in defamation cases, make a decision on costs (eg adverse costs order). Cannot overly interfere or assist self-repped to risk a mistrial. Jury (if applicable) of six can be requested by plain or def in pleadings or ordered by court, although rare. Must be impartial and objective, listen to and remember evidence  presented (research results in dismissal), understand directions and summing up towards conclusion, decide on liability on the balance of probabilities with a unanimous verdict typically. Parties operates trial (party control), makes opening and closing addresses (outline and summary), present case to judge/jury and lay & expert witnesses, compliance with overarching obligations (reasonable endeavours to resolve disputes, disclosure of documents, acting to minimise delay and not mislead or deceive). Unrepresented may cause delays, highly complex and favourable to hire a legal practitioner. Legal practitioners on behalf of parties (typically solicitor, firm, and barrister, independent) ensure procedural fairness and strive towards a just outcome with their intimate knowledge of the law. Most crucial is duty to court and administration of justice, must make opening and closing submissions, present case in best possible light and comply with the ten overarching obligations as per the Civil Procedure Act (2010). The engagement of quality counsel is incredibly costly, though better representation may mean favourable outcome. (Click to return home) 3.2.8 JUDICIAL POWERS OF CASE MANAGEMENT Case management power given by court rules (Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules and Supreme Court (General Civil Procedures) Rules) & Civil Procedure Act, whose purpose is to facilitate just, efficient, timely & affordable resolution. Power to order mediation; s66 of CPA. Can order court officer to act as mediator or arrange private mediation. Can occur at any time. Can assist prompt and economical resolution. Power to give directions before in pre-trial directions hearings (hearing regarding time limits and conduction of civil proceedings); can include directions regarding timelines/limits, conduct, mediation, expert evidence and its limitations, and providing or limiting discovery. Directions during trial include evidence orders and what to be given, limit on trial period, limiting witness exams and number, vica voce or written evidence and which party bears the costs (adverse costs order). (Click to return home) 3.2.9 EVALUATION OF THE COURTS VCC and VSC have unlimited jurisdiction. VMC’s jurisdiction is civil claims up to $100K, an amount more than this should be reduced or escalated to VCC or VSC. VCAT has exclusive jurisdiction over some cases, thus they cannot be heard in court – includes domestic building, retail tenancies, residential tenancies and planning disputes. Strengths of the court includes admin convenience through court hierarchy; opportunities to reach out-of-court settlement; procedural fairness is achieved through conduct of proceedings; laws apply equally to all (equality); jury allows reflection of community values in decision-making/verdict; engagement of expert figures ie judges & legal practitioners; court and its figures are impartial and independent; binding and certain outcome.  Weaknesses of the court includes delays which can contribute to unfairness; significant costs may restrict access and pose a disadvantage, especially to low socio; complex procedures are difficult to navigate w/o legal rep (contribute to cost); lack of assistance for self-repped, disadvantageous; jurors are not expert figures and may jeopardise a fair outcome; deliberations are confidential and no reason has to be given for verdict, biases may be present; legal reps may mean outcome is based on presentation of case, not true liability. (Click to return home) 3.2.10 THE METHODS USED TO RESOLVE CIVIL DISPUTES, INCLUDING MEDIATION, CONCILIATION, AND ARBITRATION AND THEIR APPROPRIATENESS Mediation is a method of alternative dispute resolution whereby a neutral third party – a mediator – facilitates a discussion between the parties in dispute, whom strive to reach a mutual agreement. Outcome is not automatically binding nor enforceable, though parties typically establish a terms of settlement upon conclusion. Conciliation is a method of alternative dispute resolution whereby a neutral third party – a conciliator – facilitates a discussion between the parties in dispute. However, unlike a mediator, the conciliator makes suggestions as to possible solutions to the dispute, though parties must still reach a mutual agreement. Outcomes are also not automatically binding nor enforceable, though a terms of settlement is typically established. Appropriate for mediation and conciliation if animosity needs to be reduced (eg divorced parents); parties willing to compromise; confidentiality is sought; case referred to such ADR; matter can be resolved earlier out-of-court. Inappropriate for mediation and conciliation if power imbalance exists; matter is urgent; party is unwilling; risk of violence or threatening behaviour; emotion may interfere with the negotiation process. Strengths include less formal and more flexible; safe and supportive environment; much cheaper w/o pre-trials and delays are reduced; saves court resources and that of its personnel. Weaknesses include not binding w/o terms of settlement; cannot compel parties to participate; matter may proceed to litigation anyway, thus wasting time and money; power imbalance may intimidate party and they may compromise too much, hence leading to dissatisfaction and injustice. Arbitration is an ADR which uses a neutral and impartial third party whom listens to facts of the dispute and makes a legally binding decision, an arbitral award. Available to parties when both agree to use arbitration, court-order with parties’ consent or claim filed in VMC for less than $10,000. VMC, VCC & VSC have power to refer disputes to arbitration prior to final proceeding with consent of the parties. VMC uses for claims of less than $10K. VCAT hearings are not arbitration, although they may refer matter if it is more appropriate than their services. Individuals can organise their own arbitration to resolve a dispute. Appropriate when parties have agreed to arbitrate dispute, or less than 10K in VMC; parties want binding decision and arbitral award instead of court order; parties want to avoid the publicity of a court room. Inappropriate when parties do not desire or consent to arbitration; parties want more control regarding the outcome; parties seek their ‘day in court’; formal court procedure is sought. Strengths of arbitration include binding & enforceable decision; confidentiality and guaranteed privacy; generally less costly than court due to flexibility (no need for legal rep and absence of pre-trials); arbitrator is typically an expert. Weaknesses include no control over outcome and arbitral award; limited right to appeal opposed to a trial; not available if parties don’t agree or not a small VMC claim; can be formal if desired, adding to time, cost and emotional upheaval. (Click to return home) 3.2.11 THE PURPOSE OF REMEDIES A remedy is an order made by a court or tribunal that aims to address a civil breach or wrong which results in injury or loss. Its general purpose is to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred, prior to harm or damage. (Click to return home) 3.2.12 DAMAGES AND INJUNCTIONS, AND THEIR SPECIFIC PURPOSES Damages is financial compensation awarded to a plaintiff upon the conclusion or resolution of a dispute, to be paid by the defendant. Its purpose is to compensate the plaintiff for any harm or damage suffered. Compensatory damages are most common, aims to restore plaintiff as far back to their original position as possible by compensating them for losses suffered. Specific damages are quantifiable and can be given a monetary value, eg medical bills. General damages are an estimate, incalculable and consider matters like future loss of wages, long-term job prospects and past and future pain and suffering. Aggravated damages are awarded to compensate further if the defendant’s actions caused humiliation, mental stress and insult. Nominal damages may be awarded when a plaintiff is seeking to make a point about their legal rights being infringed but is not looking for a large amount. Awarded to uphold the plaintiff’s right w/o awarding a substantial amount. Contemptuous damages may be awarded when a plaintiff has a legal right to damages but no moral right (eg. stupid claim). May be given $1 to recognise right. Exemplary damages seek to punish the defendant for an extreme infringement of rights and deter others (denunciate & deter). Cannot be awarded to a plaintiff in defamation.  An injunction is a court order directing someone to perform an action, or restricting them from carrying out an action. Aims to rectify a situation caused by the defendant. Restrictive & mandatory. An interlocutory injunction is temporary, awarded quickly where there is urgent need (eg neighbour about to demolish your house). Its aim is to preserve the position of the parties until the final determination of the matter, where it can either be overturned or become a perpetual injunction. EVALUATE: To what extent do damages achieve their purpose (returning to original position)? Very appropriate for cases involving economic loss, as specific damages can compensate for all lost, including calculable loss of wages. Compensation is also typically acceptable to make up for breach of one’s rights and any injury or harm. Conversely, damages can only compensate for the infringement, do not take into account time and stressful nature of court proceedings. Aside from the penalty, no persisting effect/ punishment for defendant. Money cannot account for suffering, loss of function, crippling injury, future earnings and overall quality of life. Damages are restricted also in the amount to be awarded. EVALUATE: To what extent do injunctions achieve their purpose (returning plaintiff to original position)? Mandatory injunctions can order a defendant to fulfil an obligation, therefore restoring the plaintiff and restrictive injunctions can prohibit actions, thus they cannot continue to harm the plaintiff. Contrarily, a defendant’s non-compliance will lengthen court proceedings and stress of plaintiff due to contempt of court action. In comparison to damages, tangible compensation is not obtained and may not directly benefit plaintiff, hence they may not be returned to their original position. (Click to return home) 3.2.13 FACTORS THAT AFFECT THE ABILITY OF THE CIVIL JUSTICE SYSTEM TO ACHIEVE THE PRINCIPLES OF JUSTICE COSTS FACTORS can impede or enhance the ability of the civil justice system to achieve justice. Legal costs can restrict. Engagement of legal rep incurs significant costs, though complex nature of proceedings rely on rep for a fair trial, thus achieving a fair outcome. Low socio populations may be disadvantaged if they have to self-rep or have low qual rep, contradicting fairness and disallowing equal footing, and can negatively impact justice. Average plaintiff costs for VSC proceedings $60K. Acts as a deterrent from accessing civil JS and pursuing action for a breach of their rights. Most civil parties cannot access legal aid (prioritised for crim & fam), resulting in forced early settlement or withdrawal, even not initiating claim. Court costs and disbursements (expert witness fees, mediation, filing & hearing, jury if applicable) and adverse costs if unsuccessful. Judicial assistance given to self-repped may alleviate struggles to an extent, though will not completely overcome difficulty and cannot advocate for party. VCAT costs can enhance and hinder. Tribunal provides alternative to court which is cost- effective, accessible, informal and timely (CAIT). Caters for self-rep (informality) and its three-tier fee structure allows accessibility to a dispute resolution body (health-care card, standard & corporate). Although aims to reduce costs, they have risen since 2013 alongside  the costs of operation. Application fees have risen by more than $300 for a Civil Claims List matter in five years. Still lower than court fees, although VCAT 2016 Annual Report noted decrease in app. since price rise, thus inhibiting justice. Increased use of ADR has enhanced justice, avoiding final hearing or trial in court or VCAT. Earlier resolution of a dispute results in sparing costs; avoids pre-trials and need for legal rep, as well as erasing possibility of adverse costs. Also saves costs for court or VCAT and the CJS. More spent on trials means more funding for dispute resolution bodies, thus ADR saves time and cost of courts and tribunals and diminishes backlogs. Although, mediation too early may be ineffective and add to costs rather than reduce due to failed attempt which requires further action. TIME FACTORS can affect the ability of the civil justice system to achieve justice. Court delays can restrict. Dependent on the nature of the claim, the court it is to be heard in and the number of parties involved. Most disputes in the lower courts were resolved within six months, whilst more than a third of cases in superior courts took more than 12 months. Caused by several factors like court backlogs, which affect all courts and can make obtaining a court date for a hearing or trial a long process. Pre-trial procedures can be complex and lengthy, though they can encourage an out-of-court settlement which improves access. Discovery is often criticised for its length, though case management powers can make orders and streamline this process. Also takes time to prepare and gather evidence ready for trial. VCAT waiting times, though aiming to be more efficient than court, can still be very long in some lists like planning and environment. Average waiting time sits at ten weeks, though can be as short as two in residential tenancy disputes – helpful to ensure that personal disputes are resolved quickly. Appeal processes have been reformed in the VSCA and HCA to reduced delays. In 2014, Supreme Court Act 1986 was amended to require leave for appeals regarding all civil disputes, and very few cases have a right to appeal. Standard timeframes implemented for certain actions and applications can be decided on the papers (without hearing) to reduce time. Imposed to ensure the timeliness of civil appeals and efficient, faster and high likelihood of success. HCA appeals require VSCA leave. In 2016, in represented applications, a panel of Justices would determine the need for an oral hearing and if appropriate for a decision on the papers. Expected to reduce time between application filing and hearing. Use of case management powers facilitate a just, efficient and timely trial (mediation & directions). Gives courts greater control through order of mediation or ADR, limiting scope of discovery (particularly in large cases to reduce time), order that pleadings are not required, restrict time for final hearings through limitation of witnesses and the time for cross-exams and submissions. Proactive judges help to narrow the issues in dispute and undertake only relevant steps by sticking to timelines, thus reducing delays. ACCESSIBILITY FACTORS can enhance or impede the ability of the CJS to achieve justice. Barriers to communication can restrict. Can prevent a person comprehending their legal rights, limit their understanding of methods and bodies of dispute resolution and their understanding of processes. Often language based, little chance of successful navigation of  the legal system. Extends to Indigenous and CALD populations where English is not the native language. More attention to this area is required, interpretation and general info published in many languages. Services in remote and rural locations can hinder. Services are often insufficient in some areas, outside metro parameters, and bodies may not be within close proximity. Courts and VCAT typically sit in areas convenient and accessible, use the circuit-court system to determine every court sitting. Ballarat, Bendigo, Geelong, Horsham, Mildura, Morwell, Sale, Shepparton, Wangaratta, Warrnambool & Wodonga have access to courts of all levels and VCAT. 37 VCATs, 51 VMC, 13 VCC & 13 VSC. Thus, people may not be equal before the law. Representative proceedings can increase. Increase people’s access to dispute resolution; litigation funding available, solidarity of plaintiffs ensures lower costs, increases accessibility to VSC by reducing number of small claims initiated with one large rep pro – ensures pursuit of legal rights and just outcome. Group members don’t have to be present, pay hefty costs, direct legal rep or give evidence. However, whilst facilitating access to courts, unmeritorious claims are more easily pursued, especially with a litigation funder, settlement amounts are significantly decreased for plaintiffs when gobbled up by fees from LF and class actions can be detrimental to businesses. (Click to return home) 3.2.13 RECENT AND RECOMMENDED REFORMS TO ENHANCE THE ABILITY OF THE CIVIL JUSTICE SYSTEM IN THE ACHIEVEMENT OF THE PRINCIPLES OF JUSTICE Recent reforms addressing costs: Introduction of three-tier fee system in VCAT (2016). Corporate, standard and health-care card holder. Health care is capped at $150 regardless of nature of dispute. Intend to ensure accessibility of VCAT to society’s vulnerable and eliminating incurrence of significant fees; ensures fairness and equality by charging businesses (over $200K rev) higher fees. Some lists still have high fees, and health cares are still subject to an application fee which can be $$$. Use of Technology Assisted Review (TAR) in VSC (2017). Approved use of predictive coding during discovery in some cases; as accurate as a person managing discovery and is more efficient, cost-effective and timely than a lawyer doing same task. For example, in McConnell Dowell v Santam VSC 640, the dispute generated in excess of 4mil documents which was reduced to 1.4 mil with TAR’s predictive coding. Manual discovery in this case would have been exorbitant, expected to have taken a junior solicitor 583 working weeks (10+ years) if they spent a minute reviewing each document. However, not all parties have access to TAR (inequality), doesn’t address costs of reviewing documents. Recent reforms addressing time: Introduction of Judicial Commission of Victoria (JCV) (2016). A body for complaints regarding judicial officers or VCAT members about their capacity or conduct. Complaints include excessive delays in judgments. Allows scrutiny of such figures and ensure  transparency of hearings/trials, though the JCV will not focus on general delay issues such as pre-trials, thus its ability to speed up justice is limited in its ability. Changes to HCA appeal processes (2016). Rather than allowing all leave applications to proceed to oral hearing, a panel of Justices decides whether an oral hearing is needed ; if not, heard on the papers. Reduces time and costs associated with HCA appearance as determines whether leave to be granted. Recent reforms addressing accessibility Use of technology in civil litigation (2017). VSC practice note ‘technology in civil litigation’ aims to promote technology in civil conduct to reduce time and costs, as well as access of documents and info for trial (eg e-discovery). Specifies that emails are preferred, documents can be filed electronically and e-discovery. Provides greater access by allowing documents to be filed electronically instead of manually, and deals with litigation more efficiently. However, uptake of technology is relative new and slow, improvements are needed. Removal of judicial wigs (2016). All judges are to stop wearing wigs in civil matters, as they are archaic and do not assist in admin of justice. Modernises courts and ensures accessibility through absence of intimidating formality. Currently only applies to VSC and VCC, and does not address other stressors of the courtroom. VLA online tool (2017). People w/ legal issues can access website to garner advice, determine legal aid eligibility, advise where they can approach for help and answer simple legal questions. Currently only a prototype and offers limited assistance for civil disputes. Will not replace need for legal representation. To discuss each reform: What problem or difficulty is it trying to overcome? Is it short-term or long- term? Which principles of justice is it improving? Any statistics or data to show its improvement? Total solution or other factors to needing improvement to address the issue? Self-represented parties can hinder the effectiveness of the courts; like the wrong fuel being put into a car, won’t work the same and will be much slower. Recommended reforms addressing costs Increased use of ADR methods. Victorian Access to Justice Review Report (VAJRR) suggests the expansion of ADR in resolution, whilst recommending that VCAT expands its SMAH into regional areas. ADR w/o final hearing can improve access to justice, provides parties with equal opportunity to present their case regardless of rep, though some disputes are not appropriate for court and may deny parties having their ‘day in court’. Greater legal aid funding to improve access to the civil justice system as many are barred due to the lack of grants for civil disputes. Increase access to justice and ensure equality and fairness, relieve pressure from legal system regarding the provision of advice. Relies on gov. funding which is unlikely to gain traction as voters perceive it as increasing funding for criminals.  Online system for resolution of small civil disputes. VAJRR recommends that VicGov, whom agrees, introduces an online system for dispute resolution, a more accessible and cost- effective resolution of claims. Provide greater access, particularly those from rural and remote areas, could avoid the need for legal rep, relieve the pressure of courts since many claims and relatively small; though likely to require significant funding and may not be fully functional for a while. Assistance for self-represented parties. Productivity Commission recommended all court and tribunal forms to be written in plain language, and guidelines for self-rep help from staff. Will provide greater information and assist in understanding legal rights, though does not replace need for legal aid and guidelines are present in some courts, but do not alleviate issues. Recommended reforms addressing time Improvements and increase in case management. Productivity Commission suggest that case management be used more, replacing formality with less formal concepts, requiring strict time limits and limiting manual discovery in place of e-discovery to facilitate efficiency and reduce delays. Modernisation will focus instead more on dispute and less on procedural steps. Can reduce delays and costs, though some do not wish to move away from pre-trials like pleadings. Easier enforcement of VCAT orders. VAJRR recommends simpler enforcement. Recommends that a monetary order should be an order of the court, automatically enforceable w/o certification of the court. Also suggests that non-monetary be enforceable without proceeding to VSC; VicGov agreed with recommendation, thus should be introduced sometime soon. Will reduce delays and costs if automatically enforceable w/o VSC action, enables greater ability for enforcement of compliance and advocates social cohesion. Recommended reforms addressing accessibility Expansion of VLA info. VAJRR recommends that its website includes a web-chat service and info in an array of languages in accessible formats, whilst expanding its telephone services. Will enable knowledge regarding basic rights, help those from CALD backgrounds to understand justice system, though will require significant gov funding. Greater coordination between legal service providers. Productivity Commission (2014) and VicGov (2016) both suggested that coord should occur between legal aid bodies, tribunals and courts. Includes building upon existing phone hotlines and websites, and referrals where appropriate. Info should also be shared. Increase access to justice, allows citizens to be aware of their options, though likely to require significant effort and does not replace the need for legal rep. Publication of plain English and multilingual guides and info. Productivity Commission (2014) suggested all gov agencies should publish guides that summarise legislation in areas frequently encountered, focusing on disadvantaged populations. VicGov recommended that courts and tribunals should increase accessibility of their sites and legal info, ensuring publication to cater for CALD and Indigenous. Will ensure disadvantaged populations can recognise a breach of their rights, though likely to require significant funding from gov bodies.  Improving access to interpretation services. Productivity Commission suggested National Indigenous Interpreter Service to maximise communication and inclusivity. VAJRR also advocated adequate interpretation services in all legal institutions. Will ensure greater understanding of court processes which supports all three principles of justice, though likely to require significant funding. THE PEOPLE AND THE AUSTRALIAN CONSTITUTION 4.1.1 THE ROLES OF THE CROWN AND THE HOUSES OF PARLIAMENT (VIC. & COMM.) IN LAW-MAKING Commonwealth – Governor-General (Crown), House of Reps and Senate. Vic Parliament – Governor (Crown), Legislative Assembly and Legislative Council. House of Reps – ‘the people’s house’ – reflects current societal opinions as elections determine government of the day – party or coalition with most votes, therefore ‘the house of government’. Party w/ next highest votes becomes opposition, appoints shadow ministers to oppose government’s ministers. Main function is to initiate new laws (also Senate), usually created by government ministers though bills introduced w/o approval of Cabinet is private member’s bill. House of Reps determine government; provide responsible/representative government; publicise and scrutinise government admin; act as house of review for bills initiated in Senate and control expenditure – only HoR can initiate money bills. 150 seats, one member for Australia’s 150 electorates, term of office mean three years. Senate – ‘the states’ house’ – main role to act as house of review for bills from HoR. Scrutinises bills through committee process, assesses effect bill would have on rights, freedoms and obligations and the rule of law. Also can initiate bills (other than money bills) and pass those from HoR, can make amendments or even reject. 76 seats, 12 senators chosen from each electorate (states) and two from NT & ACT. Term of office usually six years – half elected every three. Legislative Assembly – similar to CP, main role to make laws by initiating and passing bills; forms government (‘house of government’); provide representative government; act as house of review for bills initiated in Legislative Council and controls government expenditure. 88 seats, one member for each of Vic’s 88 districts, fixed term of four years. Legislative Council – primary role to act as house of review, similar to Senate – scrutinises, debates and occasionally amends or rejects legislation: ensures gov reflects societal values. Examines bills through its committees and initiates (less common) and passes bills – if gov is majority in LA & LC, legislation may pass more easily. 40 seats, five members elected from each of Vic’s eight regions, fixed term of four years. Crown’s reps are appointed by the Queen on the advice of the prime minister (Governor-General) and on advice of the premier (Governor). Main role is to grant  royal assent to approve bills before they considered Acts of Parliament. Can also withhold royal assent, though rare and only applicable in certain circumstances. Also responsible for appointing Executive Council – comprises leader of gov (prime minister at fed and premier at state) and senior ministers. Its role is to advise on government matters and approve secondary legislation (local gov and statutory agency laws, also called delegated legislation). (Click to return home) 4.1.2 THE DIVISION OF CONSTITUTIONAL LAW-MAKING POWERS Residual powers were not given to the Comm Parl upon fed and establishment of Constitution, thus given to the state. Includes crim law, public transport and education. Protected by s106, 107 and 108. Exclusive powers are specified in the Constitution and such law-making powers are exercisable solely by the Com. Includes defence, currency, immigration and naturalisation (becoming Aussie citizen) – (s51-2+ of C). Concurrent powers are law-making powers exercisable by both the Comm and the state. Includes trade, taxation, marriage/divorce and communication. Protected by s51. Allows laws to conflict. (Click to return home) 4.1.3 THE SIGNIFICANCE OF SECTION 109 OF THE AUSTRALIAN CONSTITUTION S109 – “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.” Designed to resolve conflicting laws which arise from concurrent powers. Significant due to its acting as a restriction on state parls. Means that state will recognise constraint of their powers (in concurrent) where Comm law already exists. Also imposes consistency of approach regarding laws as Comm always prevails and proves more potent. Conversely, does not automatically operate in which state cannot legislate in inconsistent manner w Comm law; Law needs to be challenged in court to be declared invalid. States are also free to legislate within areas of residual power, thus restricted to a limited extent. (Click to return home) 4.1.4 THE MEANS BY WHICH THE AUSTRALIAN CONSTITUTION ACTS AS A CHECK ON PARLIAMENT IN LAW-MAKING The bicameral structure of the commonwealth parliament S1 states that parliaments must have two houses. Designed to act as check on law-making particularly through Senate, which acts as house of review due to typical initiation of bills in HoR. Senators should vote in accordance w/ views of state’s people, thus broad range of views considered when passing bills. However, some Senators vote according to wishes of party, and house can be ‘rubber stamp’ if gov holds majority in both. Can affect checks designed to prevent abuse of power in parl if upper house is passing legislation w/o debate. Gov doesn’t currently hold majority, so debate and amendments to bills are occurring before passes, desirable. Strengths – bicameral allows upper to act as house of review, scrutiny of bills allows checks and restraints on abuse of power; if gov holds slim majority or hung parl exists, debate can occur in LH (HoR or LA); hostile senate can result in careful consideration of bills, inc amendments and discussion, increasing check on law- making; only way bicameral nature can be altered is through referendum (as stated in Constitution). Weaknesses – if gov holds majority, debate and amendments unlikely due to rubber stamping and simply a confirmation of decisions of the lower house; no Constitutional requirement for states to be bicameral; laws will typically be passed only if supported by Fed Gov due to LH’s gov control and members’ voting according to views of pol party – this can hinder checks on law making as bills supporting by the people may be dismissed if not aligning w/ Fed Gov’s policies. ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING through the Senate’s role as a house of review. This is most effective when a hostile Senate exists, that is, the government does not hold majority in the upper house. This means that bills will be scrutinised and significant debate will occur, potentially resulting in amendments and bills being passed only if they are in the interest of the people. However, this check on law-making can potentially be compromised when the government also holds a majority in the Senate. This may result in the upper house acting as a rubber stamp on legislation and bills being passed if they align with government policy, instead of the public interest, thus potentially undermining the principle. The separation of legislative, executive and judicial powers Sep of powers is a doctrine estab. by the Const that ensures three powers of law remain separate, provides a check and balance on law-making as no single body has the power to make, implement, apply and interpret the law. Executive power is vested in the Gov-Gen, though in practice carried out by Cabinet (prime, senior mins and gov departments). Power to administer the law and manage bus of gov.  Legislative power is that to make laws. Exercised by parliament. At Fed level, exec and legis are combined; also linked as passed Bills must receive royal assent from Gov-Gen. Judicial power is exercised by courts and tribunals whom enforce the law and settle disputes. Vested in the HCA and other fed courts. Courts are entirely free from political influence, thus citizens are protected from corruption and abuse of power in disputes resolution. Strengths; allows executive scrutiny by legislature, provides C&B as legislature can disprove inappropriate bills; judiciary is entirely independent; hostile upper house provides greater scrutiny of government and its legis; abolition of SoP would require referendum as it’s entrenched in Const. Weaknesses; ability of SoP to act as C&B on law-making may be compromised due to combination of legis and exec; gov in control of Senate may allow rubber stamping and far less scrutiny; judges are appointed by exec which may portray parliamentary influence of superior courts’ benches; Const only ensures SoP at fed level, not state, though the principle is used. ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING as it ensures that the three branches of law (legislature, executive and judiciary) are kept separate and independent of one another, ensuring that not one singular body holds all power in a legal sense. This aims to guard against an abuse of power and ensure that decisions are made in the public interest instead of a political regard. Whilst in theory the separation of powers strives to ensure an effective and objective legal system, in practice, there is some overlap between the legislature and the executive. The executive consists of the governor-general, the prime minister and other MPs, whom also form part of parliament. This may lead to the same group of people exercising two different types of legal powers, which can ultimately compromise the principle of the separation of powers. Q: Discuss the means by which the Constitution uses the principle of separation of powers to act as a check on parliament and its law-making power. The principle of the separation of powers refers to the division of the three bodies with law-making power – the legislature, exercised by parliament in the creation of law; the executive, exercised in theory by the governor-general who administers the law, and the judiciary, exercised by the courts and tribunals at a federal level, in which the law is enforced and disputes settled. Whilst this principle can act as a check on law-making, there are some limitations on its effectiveness. The separation of powers acts as a check on law-making by guarding from an abuse of power. By ensuring that the ability to make, administer and enforce the law is split between three independent bodies – parliament, the governor-general and the courts – instead of being vested in one single body, the integrity of the legal system is secured and the chance of corruption is significantly reduced. However, there is some overlap between the legislature and the executive. This is due to the fact that executive powers are, in practice, exercised by the Cabinet, which comprises of the governor-general, the prime minister and some members of parliament, meaning that the legislative and executive powers are often exercised by the same group of people. This can mean that corruption may be more likely to occur in our parliamentary system, and the separation of powers may be compromised in acting as a check on law-making powers. The express protection of rights Express rights are enumerated (stated in the Const) and entrenched, meaning they can only be removed or altered via referendum (s128). TIP: the three Es – express, enumerated and entrenched. S51 ensures acquisition of property on ‘just’ terms when desired by Commonwealth. Must pay fair and reasonable compensation, only able to acquire property in areas of its power (eg airports, national parks). DEMOCRATIC RIGHT S80 – trial by jury for indictable Comm offences. Limited right as most indictable offences are against the state, and gov can avoid right by declaring offence is summary in HCA. DEMOCRATIC RIGHT S92 – right to free interstate trade and commerce. ECONOMIC RIGHT S116 – right to freedom of religion. HUMAN RIGHT S117 – right to no discrimination based on state residence. DEMOCRATIC RIGHT Strengths; imposes limits on areas of law-making, eg s116 restricts parl from creating law regarding religion; allows judicial check on parliament as individuals can take case to HCA for infringements, where law can be declared invalid; only removable through a referendum as entrenched; stability of express rights allows public to garner awareness of rights and take action if the need arises. Weaknesses; requirement for referendum makes further rights difficult to be implemented and added to Const; breach of one’s rights is expensive due to costs of HCA action; rights are limited in scope as many apply only to Comm parl, not state, and parls can make laws that conflict but do not infringe; limited amount of rights in comparison to other countries. ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING as the express protection of rights in the Australian Constitution specifically prohibits parliament from exercising certain areas of law-making powers. The Commonwealth Parliament also cannot legislate away these rights, as they are entrenched in the Constitution. Their removal is only possible through the referendum process under s128. Thus,  the five express rights both protect and are protected by the people. However, in Australia, we only have five express rights, meaning that the scope of protection is limited. For example, section 80 sets out the right to a trial by jury when charged with a Commonwealth indictable offence. This protection is meagre, as most indictable offences are against the state, not the Commonwealth, thus protecting only a very small population. The role of the HCA in interpreting the constitution HCA established under s71, s76 gives CommP ability to provide HCA with jurisdi