Tag Archives: Legal Studies Unit 4

A question from Katherine

Hi all,

I recently got asked the following:

“Would the juries act 2000 be considered as a recent reform? And would i be able to use brodies law as an example of changing expectations of the legal system?”

Ill tackle the easy part of that question first.

Brodies Law:

Brodies law was introduced following the outcry of the general public prompted by a well advertised case of work place bullying. To Katherine and all the other readers, Brodies can be used both as a means to reflect the changing expectations of the legal system (ie of the people who it serves) and the fact that the Commonwealth Government must represent the people (ie it was introduced to reflect the seriousness of the publics opinion of bullying).

As such Brodies is a useful example because it can be used in a variety of situations.

Juries Act 2000:

Thanks to my legal teacher Mr Mavridis for setting me on the right track:

“Reforms should be 5 years. In terms of recent reforms for jury, there was an amendment in 2010 to the 2000 act. This reduced groups previously ineligible and halved the waiting time of ineligibility after leaving job.

The recent reform increased jury eligibility by allowing for increased numbers of those previously ineligible. eg since 2010, former judges, lawyers etc who left their legal job at least 5 years before are eligible.”

Therefore, the Juries Act 2000 is too early, but the 2010 amendment makes a good reform for the course!

I personally always liked the Broadmedows Mediation Pilot program which expanded the use of mediation in the Magistrates court up to the value of $40,000. And its recent because since 2007 it has been expanded across 6 other locations (in 2009, 2011 and then just 2 days ago on November 2nd 2013).

I hope that provides a little food for thought,

Regards,

Jordan Ball

Parliament as Law Makers – A question from Maddy

Hello All,

I am hoping that you are all studying hard. English is tomorrow and I wish everybody well for that. Im sorry I havent been posting more stuff Ive just been so mental.

I was asked by Maddy to provide some insite into Parliament as law maker evaluations. I was not able to track down a copy of this evaluation so I thought Id take the relevant excerpt from my notes. This is a sample of the Unit 3 summary that is avaliable on the Resources tab.

If you are interested in purchasing any of the notes send me an email on the contact form on the Resources tab and Ill work out a deal for you.

So here it goes:

Strengths and weaknesses of law making by parliament

  • Parliament is the supreme/sovereign law maker
  • Creates laws that encourage social cohesion
  • Primary Function
    • Create laws the rep the views and values of majority
    • And respond to our needs

Is our Parl representing the people?

  • +
    • On the whole, effective, creates laws that rep our views and values
    • Parliamentarians are given mandate to fulfil key principles
    • Laws may evolve/change
    • Example
      • Decrim of Abortion 2008 demonstrated parl willing to create laws that uphold democratic values of our community
    • Laws that rep our views and values achieved by voicing them through formal and informal means
    • Example
      • Petitions and VLRC, directly inform Parl of comm. Views and desire for change.
      • Jane Ashton, 20,000 abrogation of Provocation 2005
  • –
    • May be unwilling or unable to rep view and values in leg
    • May be restricted by vocal minorities who utilise informal means (media) to reduce chance of change
    • Example
      • Gina Rhinehard, mining tax quashed
    • May not rep as are voted along party lines and not conscience vote
  • Evenso, creates good laws that rep people, are supported by comm.

Create laws that respond to Commonwealth needs?

  • +
    • Can create laws ‘in futuro’ (for future) and also retrospectively.
    • Vic parl introduced Upskirting Act 2007 to guarantee that the law was overcoming loop holes and protecting privacy from infringement
    • Can create new laws or amend ineffective ones, codify good precedent.
  • –
    • Unwilling or unable to respond
    • If laws not up to date, create legal uncertainty
    • IVF was not legislated until 1982 (2 years after first IVF child)
    • Controversial suggestions may be rejected for fear of voter backlash.
    • Example
      •  Silent on abortion until 2008, had to rely on R v. Davidson 1969 to provide guidance
    • Even though formal bodies exist (VLRC) no guarantee of change.
    • Therefore may not respond to comm. Needs.
    • Limited further by no. of sitting days 2011 vic parl sat for only 54 days, unable to deal with quantity of legislation.

IS Parl effective due to its process?

  • One positive, Constitution provides detailed legal framework
  • Bicameral structure ensures extensive debate and review
  • As gov rarely controls both houses this is effective, in cases that gov does becomes rubber stamp. (ie Howard and Work Choices)

 

I hope this can give you a little help in your studies,

Regards,

JB

Criminal Procedure – Question 5

Hi All,

Here is an early version of the essay that I have for sale regarding the effectiveness of the legal system. This copy is by no means perfect nor am i sure if it would receive 10 marks, but I thought I would give it to you as an example of what is available.

Identify two problems that can affect the effective operation of the legal system, for each provide one change or proposed change that has or will improve the effective operation of the legal system. (10 marks)

Two issues that can affect the effective operation of the legal system include access and timely resolution of disputes.

Access of the legal system is frequently limited as a result of the high costs required to undertake legal action. A large part of this cost is as a result of the need for legal representation. The cost of dispute resolution is increased dramatically as the parties are required to find as much as $300-500 an hour to hire legal representation in the Supreme Court. The extensive costs frequently result in the dispute being forgotten as a result of parties not having enough financial means to undertake legal action. In 2009 the Supreme Court introduced compulsory mediation during the civil pre-trial procedures of the Supreme Court. As legal representation is not required and independent mediators cost  considerably less ($75 an hour) a considerable amount of money is saved for the parties as they attempt to resolve their dispute through alternative means.

Another issue effecting the effective operation of the legal system includes the timely resolution of disputes. Criminal pre-trial procedures, particularly committal hearings have been argued by many to decrease the ability of parties to access timely resolution of their disputes. Former director of the DPP argues that committal hearings are a pointless waste of time as prosecutors can chose to ignore the decision of the magistrate regarding a prima facie case, that is, if there is enough evidence that there is a likely chance of convincing the jury beyond all reasonable doubt. Rapke argues that given the final decision is down to the prosecutor the process of committal hearings should be abolished. This proposed change would be beneficial as the time required to hear a case would be reduced which would be particularly advantageous for those held in remand as their case can then be heard sooner rather than later, saving them from being held for an extended period even if they are not guilty. Even if the individual is found not guilty, he/she is then not able to gain any compensation for the time during which they were deprived of their freedom. However, the abolition of the Committal Hearings process would remove an essential filtering process from the legal system resulting in some cases being pursued that may waste time and money in pursuing non prima facie cases.

Overall, many reforms and recommendations have been made to improve the effectiveness of the legal system to resolve disputes affordably and in a timely manner.

I hope you find this helpful,

JB

Criminal Procedure – Question 4

Hi All,

Describe and evaluate one sanction available to the courts.

The most severe punishment available to the courts in criminal matters is imprisonment. Imprisonment involves the removal of an individual from society and his/her detainment in a prison facility. The main purpose is to deter individuals and society at large from committing crimes so as to be able to avoid imprisonment. At this, imprisonment is very effective. An alternative purpose of imprisonment is rehabilitation, despite this aim the rate of recidivism in Victoria remains high at 36% demonstrating that the imprisonment is ineffective at achieving this purpose as individuals continue to reoffend.

I hope you find this helpful,

JB

Court Jurisdiction Question 7

Hi all,

Here is the seventh question

“Equal access to justice is of fundamental importance in a democracy … Each of the four main institutions in the Victorian justice system—the Supreme Court, the County Court, the Magistrates’ Court and VCAT—gives effect to that principle, as the community is entitled to expect. VCAT does so in a way that is different.” The Role of VCAT in a Changing World: the President’s Review of VCAT, speech delivered to the Law Institute of Victoria, 4 September 2008, Justice Kevin Bell, President, VCAT

a. Explain the role of VCAT.

The role of VCAT is to provide an affordable, accessible and timely form of justice. Through the use of alternative dispute resolution processes VCAT provides a means to resolve disputes that would otherwise be abandoned or create backlogs in the court system.
2 marks

My comments:

Simple two marker, but dont be lazy and expect you will get them no matter what. “role” combines the aspects of how it works, why it does and why these are good.

So for VCAT: price, time and practicallity are its calling cards. Why it is good: it provides an avenue for “less important” cases, or time wasters that fill up magistrates courts.

I hope this can help you,
JB

Court Jurisdiction Question 6

Hi all,

Here is the sixth question

a) Identify and explain three methods of dispute resolution used by the Magistrates’ Court to resolve civil disputes

 

The Magistrates Court uses a number of dispute resolution methods to resolve civil disputes.

The Magistrates court utilises judicial determination when resolving civil cases with a value that amounts to between $10,000 and $100,000. Judicial Determination is the formal dispute resolution process that is used in our court system. The parties (plaintiff and defendant) are required to follow rules of evidence and process when presenting their case to the Magistrate who will eventually reach a legally binding decision which must be followed by both parties. The process utilises an expert magistrate (in the Magistrates Court) to determine questions of evidence or fact, and ensure that the rules of evidence and process are being adhered to, to ensure an equitable hearing for both parties.

In addition the Magistrates Court also utilises Arbitration to resolve civil disputes with a value of less than $10,000. Arbitration is an informal process where parties present their evidence before an impartial expert third party (the Arbitrator) who will ensure that both parties have an fair chance to present evidence and will then establish a legally binding decision called an award which must be followed by all parties. Arbitration is quicker and cheaper than Judicial Determination which is beneficial for the parties involved.

Furthermore, a pilot program at the Broad Meadows Magistrates Court utilises mediation to resolve disputes up to a value of $40,000. And independent expert mediator work to facilitate the resolution of the dispute with the parties and focuses upon ensuring an amicable relationship between the parties. The Mediator emphasises co-operation and acts as a catalyst for discussion between the parties to reach their own mutually agreeable solution, which although not binding is largely adhered too as a result of its mutually agreeable nature. The process is different from Judicial determination as it is not about proving fault, but in a neutral environment parties work to achieve a compromise which is not imposed upon them.
9 marks

 

My comments:

A little bit of an odd ball question. High marks and fairly easily set up. 3 parts, sets 3 marks each. I always do a one or two line introduction. Nice way to start instead to dropping yourself into the first method.

Then a paragraph a method. Linking words are essential as always. I guess that the marking is 1 mark for each of the three paragraphs if you accurately identify it. If you pick the wrong method for the court then say “bye bye” to all three for that section. It is then 2 marks for explaining how and where the process is operated.

 

I hope this can help you,
JB

Court Jurisdiction Question 5

Hi all,

Here is the fifth question. My appologies for the hiatus. I was sick and didnt have a chance to get around to this.

b. Distinguish between the Supreme Court—Trial Division and the Supreme Court—Court of Appeal.

The trial division of the supreme court has an original criminal and civil jurisdiction whereas the Court of Appeals has no original jurisdiction.

Furthermore, the appellate civil jurisdiction of the Trial Division is limited to appeals from the Magistrates court on point of law and VCAT whereas the appellate civil jurisdiction for the Court of Appeals are civil appeals from the Supreme and County courts on point of law, question of fact or issue and also amount of damages.

In addition the appellate criminal jurisdiction of the Trial Division is limited to criminal appeals from the Magistrates Court on point of law (eg. Studded Belt Case 1996) while the Court of Appeals hears criminal appeals from the Supreme and County Courts regarding point of law, conviction or sentence.

3 marks

 

My comments:

In “distinguish” type question linking words like whereas, similarly, in contrast are all par for the cause. They are necessary and required for the marks. Learn them. Ill post a list soon with some.

Again, its about ease of reading for your examiner, separate it up. Paragraphs are your friend. Even if you dont leave a line, think about indenting the first work.

I hope this can help you,
JB

Court Jurisdiction Question 4

Hi all,

Here is the fourth question.

Read the following statement and answer the questions below:
A legal commentator noted that the court hierarchy ‘serves the community well in terms of justice. “Smaller” cases can be quickly heard and resolved. More complex cases, or those with more serious consequences, take more time to resolve’.
a. Explain two other reasons to justify the existence of a court hierarchy.

The court hierarchy exists to enable the operation of the doctrine of precedent. The hierarchy enables higher courts to create binding precedent that must be followed by all lower court, this allows experienced and learned judges in higher courts the opportunity to ensure consistency in the lower courts, provide guidance to lower judges and ensure that a legally sound decisions result in ‘like’ cases. For example, the Studded Belt Case 1996 created new precedent regarding the definition of a ‘dangerous weapon’.

Furthermore, the hierarchy enabled the courts to specialise in the types of cases relevant to their specific jurisdictions. This enables them to develop the necessary skills, processes and expertise to hear cases fairly and efficiently. For example, the Magistrates Court has branches such as the Children’s Courts that are ‘fully conversant’ in their specific areas of law and are able to deal with specialised cases.
4 marks

My comments:

For court hierarchy type questions its straight forward. For each reason, give it its own paragraph. For each reason give an example. Know one or two for each reason for your sac’s and the exam. Ideally, you don’t want to be doubling up by using the same example to demonstrate things in different topics. You want to demonstrate a breadth of knowledge that puts you apart from your peers and the rest of the students in the state.

I hope this can help you,
JB

Court Jurisdiction Questions

Hi all, here is the first question.

Question 1:

Read the following case study.

Martin was charged in the Magistrates’ Court with using a mobile phone while driving. A police officer gave evidence that he had observed Martin speaking on a mobile phone as Martin drove through an intersection. The magistrate found Martin guilty of the offence. Martin lodged an appeal against his conviction in the County Court. He claimed that the police officer could not have observed that he was holding a mobile phone as he drove through the intersection and that he should not have been convicted.

a. Outline the jurisdiction of the Magistrates’ Court.

The Magistrates court has no appellate criminal or civil jurisdiction. In addition the Magistrate Courts original civil jurisdiction is all civil cases up to the value of $100,000. Although, for claims under $10,000 the process of Arbitration is used to resolve the dispute. Furthermore, the original criminal jurisdiction of the Magistrates Court is all summary offences, that is those cases that are heard summarily without the right to jury and/or indictment. For example, road traffic offences as outline in the Road Safety Act 1986. Also, indictable offences tried summarily, that is where the processes for the trial is altered to that of a summary offence without the right to jury or indictment, with the permission of state and defendant are heard in the Magistrates court. Moreover, the Magistrates Court hears committal hearings (where it is determined if the state has enough evidence to proceed with a trail and secure a conviction) as well as issuing a range of warrants (eg. Arrest warrant) and also bail applications. All trails in the Magistrates Court are heard by one Magistrate.

6 marks

My comments:

For jurisdiction questions I always like to state what each court cannot do in the first line or two. ie. for the magistrates court I would always state that there is no appellate criminal nor civil jurisdiction. Thereby it is not to be forgotten later and is effectively out-of-the-way.

It also may have been a little pedantic of me but I would always state original or appellate criminal and/or civil. Because I didn’t want to make the assumption that saying original jurisdiction would automatically be considered to account for both.

Effectively my structure was get the ‘simple’ things done initially then get nit picky….

I hope this can help you,
JB