Number of key elements which determine whether a legal system is effective or not:

Timely resolution of disputes- unreasonable delays are to be avoided – reduce effectiveness – need adequate time to prepare but also speedy resolution to get justice e.g. Pre-trial

Recognition of prevailing values and basic human rights – need to reflect moral, social, economic & political values currently relevant to society – need to reflect values of majority- need to be flexible to change when values change

Entitlement to a fair and unbiased hearing –everyone should be treated equally/have an equal opportunity to present their case before an independent unbiased arbitrator

Effective access to mechanisms for dispute resolution- all parties should have equal access to dispute resolution methods – access increased due to growth of ADR’s, tribunals and better access to legal representation.

The main aim is to inform both parties Obtain legal advice/prepare case Police investigation gathers evidence Finds suspect (s) Committal hearing establishes if there is

enough evidence to send the case to trial (prima facie)

Process to allow justice to occur

Police are usually involved after crime has been reported or called to scene of crime

Will interview ask questions to gather evidence of witnesses and defendant – may be arrested with or without warrant – prepare case for DPP

Accused applies for bail/could be refused placed on remand

Must appear for committal proceeding if indictable offence in Magistrates court – hand-up/traditional

Otherwise mention court to plead if summary offence or indictable tried summarily.

Plea bargaining may occur Directions hearings – number of witnesses and

likely length of trial is revealed.

After an arrest and upon charge at the police station When a person is brought before a Magistrate’s Court pending a hearing After conviction pending an appeal

Bail can be granted: By police, bail justice or the courts When a person has been arrest and taken into custody for alleged

criminal offence, they may regain their liberty upon entering a written undertaking, called bail to appear before a court at a specified time and place

Nominate a 3rd person to act as surety and undertake to guarantee that the person will appear in court.

Could post a sum of money to provide a surety Failure to appear in court means a warrant for arrest can be issued. May forfeit any money that has been lodged to ensure appearance. Assists the parties in preparing their case and continue with normal

way of life. Reinforces the notion of presumption of innocence although the

magistrate can refuse to allow bail if the community is at risk, or witnesses could be interfered with or the accused is likely to abscond. Accused rights need to be balanced with those of society.

A person awaiting trial in custody Been accused of a crime but they have not

been tried or found guilty of any offence For all purposes, the person on remand is

considered to be innocent A person should not be held for more than

three months for sexual offences and six for all our offences.

Anytime spent in remand is taken off sentence if found guilty but no compensation if found not guilty

Men usually held at Melbourne remand centre women and Dame Phyllis Frost Centre.

Determines whether there is sufficient evidence to justify the conviction of an accused at a later trial – prima facie case

Can be conducted in a Magistrates’ Court or as hand-up brief

Hand-up brief relies on written statements The statements of witnesses in either the hand-up brief

or committal hearing are called depositions and form the basis for the case of the prosecution in a higher court

Safeguard against harassment of accused, protects community against costs of trial that is unlikely to succeed. Provides for greater efficiency in the operation of the County & Supreme Courts.

Some argue that it adds further time delays to trial beginning, however, DPP may order that a case goes straight to trial as occurred in the Carl Williams case although this was overturned and he and co-accused were given committal hearing.

Held before the full trial so that the court can give directions to the parties about how the action should proceed

Makes the whole process quicker Make the process shorter for the accused and

therefore less expensive (as lack of funding for legal aid)

Reduce pressure on the court system – reduces court time and costs

Encourages pre-trial interaction between parties so the key issues are identified

Assist judge in understanding key legal and factual issues and hopefully reduce length of trial.

Punishment – retribution or revenge Deterrence (discourage others to commit

same crime) Rehabilitation and reform Denunciation (show community court

won’t stuff around with cases) Protection (of the community)

Sentencing Act 1991(Vic.) sets out all general provisions dealing with the powers of courts to sentence offenders and aims to promote consistency in sentencing.

Judge or magistrate must consider the following when sentencing the offender

The maximum penalty, current practices, the nature and gravity of offence, the offender’s culpability and degree of responsibility , the impact of the offence, the personal circumstances, any injury, loss or damage from the offence, the offender’s previous character and the presence of any aggravated or mitigating factor concerning the offender.

Courts have a variety of sanctions they can impose from dismissing charge up to imprisonment for the most serious offence. Here are a few likely to be imposed.

Imprisonment – record a conviction and order the offender to serve time in prison – usually a minimum and maximum term is set. Sentences for multiple offences are usually served concurrently unless they are for serious offences then they will be served cumulatively.

Indefinite sentence – this is when no minimum term is set when the person is convicted of a serious offence such as murder, rape – a nominal prison term is usually set,

Combined custody and treatment order – a conviction is recorded the offender will serve a term partly in custody and partly in the community. This sanction is used for drug and alcohol related offences.

Home detention order – record a conviction and detention is served in their home with movements being tracked – available to offenders usually sentenced to less than 12 months or are near the end of prison term.

Community based order – with or without conviction – offender is supervised by community corrections officer. May perform unpaid work for a set number of hours over a maximum of two years – may also have conditions attached such as medical assessments and drug testing.

Fine – with or without conviction specified money paid to court –expressed as penalty units – can pay by installments or grant them time to pay.

The right to silence Suspects might not be aware of their rights DNA evidence may not be destroyed when required (no guarantee its destroyed if

person is found not guilty) The double jeopardy rule (cannot be trialed for a crime which they have been

already acquitted or convicted) A person no longer has the right to give un-sworn evidence Police might not have enough powers or too many powers Bail be given too freely Accused persons may not be given bail Home detention orders Witnesses can be compelled to give evidence Financially disadvantaged people may be deterred from appealing The mention day system (if person changes plea, waste of time) The process of holding committal proceedings Delays in bringing matters to court Costs of legal procedures may deter plaintiff from seeking redress Costs of case may outweigh claim Time restraints may deter party from seeking claim Lack of recognition that have claim Lengthy pre-trial prevent timely resolution Inconsistency of award of damages

High Costs associated with pre-trial/trial procedures The long delays involved in getting to trial – caused by obtaining

evidence, overcrowded courts and in civil length pre-trial procedures Procedure for gathering evidence and police interviews complicated –

right to silence – some argue this needs to be abolished Ineffective sanctions – more funds need to be allocated to supervise

alternatives to prison. Sentencing Act 1999 aimed at providing consistency and combined custody and treatment orders

Solutions – greater control over legal fees, more legal advice available from court personnel, abolish committal hearings, more indictable offences heard summarily, adopt the inquisitorial system where judge would be more in control rather than parties. Changes to civil jurisdiction of Magistrates court have assisted, use of directions hearings also as 75% are settled here. Better use of document evidence rather than oral evidence. Judges can now award costs against lawyers who cause delays. Supreme court judges can refer matters to mediation rather than trial – hope for out of court settlement thereby reducing costs and time in court. Law Aid has assisted parties in civil cases with incidental expenses – if litigant successful fees taken from award. Direction hearings have assisted in both criminal and civil trials

Letter of Demand Pleadings

Writ or originating motion (explaining action they are taking) Endorsement of statement of claim Notice of appearance Statement of defence Reply Further and better particulars Counterclaim

Discovery Interrogatories Notice of discovery Medical examination and provision of hospital and medical reports Discovery by oral examination

Notice of admission of facts Expert evidence Offer of compromise Directions hearings Certificate of readiness for trial Pre-trial conference Mediation or arbitration (if ordered by the court)

Are used to encourage out of court settlement Pre-trial conference compulsory in County/supreme 75% of these are settled prior to going to court Pleadings – writ summons, notice of appearance,

statement of claim, statement of defence, counter-claim, interrogatories and discovery. (inform parties of claims against them, all evidence revealed prior to trial, saves time in court, may encourage out of court settlement.

However, may be used to hold up proceedings therefore making claim more costly and causing undue delays.

Delays will cause injustice – party may be waiting on money to pay for medical treatment or costs of repairs. (doesn’t contribute to effective legal system – element not achieved – timely resolution)

Purpose of Remedies – to restore the person to their original position prior to rights being infringed.

Damages Compensatory damages Specific damages General damages Aggravated damages Nominal damages Contemptuous damages Exemplary damages

Injunction Restrictive or mandatory Interlocutory or perpetual

Order for Specific Performance Specific restitution Costs and interest

Major features of the adversary system: Role of the individual – each party is responsible for the

prep.and presentation of their own case. Often have legal rep. to prepare and present case for them.

Role of legal representative – individuals will delegate the role of preparing and presenting their case to a legal representative – adversarial process involves questioning of parties – need an experience lawyer to present case

Role of the adjudicator – either a judge alone or with jury or magistrate will act independently, listen carefully to evidence, ensure rules of evidence/procedure are followed, decide what the law should be, sum up the facts and relevant law for jury if present and the burden of proof is established.

Rules of evidence and procedure – only reliable evidence is presented designed to ensure each party has an equal opportunity to present their case, so that each party is treated equally. Relies on presentation of oral evidence.

Standard of proof/burden of proof – prosecution must prove case beyond all reasonable doubt in criminal case – plaintiff must prove case on balance of probabilities

Impartial adjudicator ensures a fair hearing and act independently

Parties will present best possible case as act out of self-interest

Rules of evidence/procedure ensures parties are treated in the same manner

Individuals have complete control of case – bear costs for actions

Case heard in one continuous hearing – issues considered as a whole therefore better understanding of case

Oral evidence allows the court to test credibility of the witnesses

Can be costly Present only evidence relevant

to case therefore truth may not be discovered

People without legal representation may be disadvantaged

Taking of oral evidence is time-consuming/contributes to costs of court action

Reliance on oral evidence may disadvantage migrant group

Costs of action may defer parties from taking action

Independence of arbitrator prevents him/her from intervening if truth not being discovered.

Greater involvement of the judge – questions witnesses usually number of judges, lay judges are used sit along side professional judges act like jury

Evidence of prior convictions may be revealed during hearing

All cases go to trial no guilty pleas accepted

No cross examination In Germany no pre-trial

discoveries in civil cases burden of proof higher than Aus. Court – judge must be convinced beyond reasonable doubt

May allow adjournments to allow for further investigations

Legal representation compulsory

Differences in the rules of evidence including a greater reliance on written statements – free to give version of facts – hearsay allowed

The involvement of the court in pre-trial processes- gather evidence, question witnesses, decide who to ask questions of and what evidence to examine.

The burden of proof on the defendant who is considered guilty until proven innocent

Judge responsible for decision of case

Allows adjournments for further investigation if necessary

Greater Investigative role for the judge or magistrate Power to allow a judge to ask questions and call witnesses to ensure that cases

are decided correctly, in the interests of fairness and finding the truth This however could prevent the judge from remaining impartial

Greater use of written statements Medical records written down rather than a medical expert standing trail Oral evidence however allows to court to see the sincerity of the witness Also could lead to increased legal fees through the writing up of these

statements More informal conduct of the trial

Intimidates the parties Confusing to jury Rules of evidence and procedure however protect the parties to achieve a fair

outcome Tribunals – increased jurisdiction to keep more cases out of court Witnesses – tell own story without interruptions of questions? Judge could clear

up any uncertainties, then allow the parties to ask questions Reduce Delays

Parties made to follow the time limitations for the submission of documents more carefully

Court officers could chase legal personnel and ask for an explanation, but this would require increased personnel from the courts

Direction hearings for criminal cases Greater Availability of Legal Aid

Equal quality of legal aid for both parties Increased funding required

Every person has the right to be judged by their peersIncreases public participation in legal processesCheck on the power and influence of government

Composition and selection of the jury Criminal juries used in County/Supreme court cases when accused

pleads not guilty. Jury consists of 12 jury members ( up to 15 used in selected cases) They must decide guilt or innocence beyond all reasonable doubt. Majority decision accepted in all cases except those involving murder or federal offences.

Civil juries used when one of the parties requests it. Consists of six people who must reach a majority decision if unanimous cannot be reached after three hours about which party is liable on the balance of probabilities and determine damages.

Empanelling a jury – names are selected at random from Electoral roll. Questionnaire is sent to determine eligibility some will be considered ineligible, excused, temporarily excused or disqualified. Aimed at providing a jury that is representative of the community and free from possible adverse influence of prejudice. Are summoned to court for jury service placed into jury pool from which jury panels may be selected. In criminal cases names and occupations are given – defence/prosecution have right to challenge with cause – unlimited number challenges without case can be made – limited to six when there is one defendant – number varies when more defendants involved. Civil – twelve jurors drawn by ballot – each party crosses out three names – six chosen

Compelling juries to give reasons for their verdict – make them accountable, may foster confidence in the jury system, however, may cause number of appeals

The not proven verdict – accused would be discharged – matter could be reheard

More representative cross section needed Provision of training sessions Encourage jury members to take notes Decrease number in criminal trials Allow judges to award damages in civil cases Provide outline of court procedures prior to trial Reducing the size of the jury – therefore reduce cost Having a specialist foreperson Reducing challenges – reduces risk of staking jury, challenges

lengthen the empanelling process more jurors are need to be empanelled.

Other changes – simplify the rules of evidence and procedure and improve courtroom facilities

Judge alone in civil cases Trial by bench of judges Trial by judge and panel of assessors Judges assisted by experts Trial by judge and a specialist ( or

professional) jury with or without experts in the subject matter of the trial

Independent fact-finding body

Represents views of ordinary person

Has stood the test of time Provides access and

education Spreads the responsibility of

decision-making Ensures the accused is

treated fairly Represents the views of a

cross section of the community

Reflect values of community Safeguards against the

abuse of power Helps make law

understandable

Judge is better equipped to decide on credibility

Does not give reason for verdict

Costly and time consuming May be influenced by

emotion Make inconsistent decisions

about the level of damages Does not represent a cross

section Acquittal rates are too high Majority verdicts are not

consistent with beyond reasonable doubt.

Media influence – maybe difficult for accused to have fair trial eg. Chamberlain case, Mokbel

There are factors that limit the achievement of justice in the legal system.

Structural Restraints – processes/procedures – pre-trial /trial, court hierarchy, jurisdiction of courts/tribunals, police investigation, the jury system. Problems could result in bias, unfair treatment, reduce access, violation of rights or delays in settling dispute.

Financial Restraints – these are about the cost factors- legal rep., provision of legal aid, availability of alternative and cheaper forms of assistance.

Social, cultural and economic differences in society – our society is multi-cultural some procedures make it difficult for individuals who don’t have a clear understanding of the law/procedures – could affect access/access to a fair trial. Cultural – migrants/aborigines, Social – about position in society-level of education. Economic – individual’s access to money – can they afford to access legal system to settle a dispute.

Hand – up briefs should be used more often More use of tribunals – VCAT/ADR’s Increased government funding, more courts/judges, more

court personnel to give advice More use of sworn documents rather than oral evidence More public education – media advertising/migrant

education Maintain government funding – aboriginal legal service,

legal aid, community legal centres More use of ‘no win, no fee’ Judges more involved in pre-trial procedures Expand range of indictable offences that can be tried

summarily Judicial education on cultural issues Establish more community legal centres Publication and distribution of more leaflets explaining law

in plain English and in translation.

Magistrate’s Court civil jurisdiction increased to 100,000(reduces delays more cases without use of jury can be heard)

County court to unlimited in civil cases Koori Division of Magistrate’s Court/Drug Court/county court Koori children’s court 2005– provide a fair and just system

that reflects the cultural values and needs of the young aboriginal offender aims to reduce rate of juvenile offenders

Introduction of ADR for family disputes – introd. of roundtable dispute management by legal aid – relationship related disputes less costly and less intimidating.

July 2005 Family Violence Court in Heidelberg and Ballarat New initiative for a court dealing with sex offences Home Detention – (Glenn Wheatley) established in 2003 as

an alternative to prison Increased provision for legal aid recently state increased

funding need federal govt. to increase funding as well – 24.7 million announced in this years budget

Mention court system/directions hearings

Increased provision for legal aid recently state increased funding need federal govt. to increase funding as well.

Continued improvement for physical resources of the court system

Proposed establishment of a Neighbourhood Justice centre in Collingwood – will benefit victims, offenders, civil litigants and local community- identify and solve local problems such as crimes involving drugs and violence.

Employ more Koori people into the police force Establish more community legal services Publication and distribution of leaflets in plain English More use of ADR’s – extend court hours Rob Hulls

suggested two court sessions 10-4 and 2-8 and Saturday morning courts, more on spot fines and more use of compulsory arbitration.

More guidelines to juries in relation to award damages