Legal Studies Unit 3 & 4 (x2) PDF

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Unit 3 & 4 legal studies notes...

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Legal Studies- Units 3 & 4 KKDP

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UNIT 3: AOS1 The principles of justice: fairness, equality and access

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Key concepts in the Victorian criminal justice system, including: The distinction between summary offences and indictable offences

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The burden of proof

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The standard of proof

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Presumption of innocence

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The rights of an accused, including the right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury

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The rights of victims, including the right to give evidence as a vulnerable witness, the right to be informed about the proceedings, and the right to be informed of the likely release date of the accused

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The role of institutions available to assist an accused, including Victoria Legal Aid and Victorian community legal centres

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The purposes of committal proceedings

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The purposes and appropriateness of plea negotiations and sentence indications in determining criminal cases

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The reasons for a Victorian court hierarchy in determining criminal cases, including specialisation and appeals

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The responsibilities of key personnel in a criminal trial, including the judge, jury, parties and legal practitioners

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The purposes of sanctions: rehabilitation, punishment, deterrence, denunciation and protection

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Fines, community corrections orders and imprisonment, and their specific purposes Factors considered in sentencing, including aggravating factors, mitigating factors, guilty pleas and victim impact statements

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Factors that affect the ability of the criminal justice system to achieve the principles of justice including in relation to costs, time and cultural differences

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Recent reforms and recommended reforms to enhance the ability of the criminal justice system to achieve the principles of justice.

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UNIT 3: AOS 2 The principles of justice: fairness, equality and access

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Key concepts in the Victorian civil justice system, including: Burden of proof

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Standard of proof

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Representative proceedings

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Factors to consider when initiating a civil claim, including negotiation options, costs, limitation of actions, the scope of liability and enforcement issues

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The purposes and appropriateness of Consumer Affairs Victoria (CAV) and the Victorian Civil and Administrative Tribunal (VCAT) in resolving civil disputes

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The purposes of civil pre-trial procedures

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The reasons for a Victorian court hierarchy in determining civil cases, including administrative convenience and appeals

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The responsibilities of key personnel in a civil trial, including the judge, jury, the parties and legal practitioners

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Judicial powers of case management, including the power to order mediation and give directions

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The methods used to resolve civil disputes, including mediation, conciliation and arbitration, and their appropriateness

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The purposes of remedies

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Damages and injunctions, and their specific purposes

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Factors that affect the ability of the civil justice system to achieve the principles of justice, including in relation to costs, time and accessibility

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Recent and recommended reforms to enhance the ability of the civil justice system to achieve the principles of justice UNIT 4: AOS1 The roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in law-making

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The division of constitutional law-making powers of the state and Commonwealth parliaments, including exclusive, concurrent and residual powers

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The significance of section 109 of the Australian Constitution

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The means by which the Australian Constitution acts as a check on parliament in law-making, including: The bicameral structure of the Commonwealth parliament

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The separation of the legislative, executive and judicial powers

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The express protection of rights

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The role of the High Court in interpreting the Australian Constitution

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The requirement for a double majority in a referendum

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UNIT 4: AOS2 Factors that affect the ability of parliament to make law, including: The roles of the houses of parliament

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The representative nature of parliament

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Political pressures

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Restrictions on the law-making powers of parliament

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The roles of the Victorian courts and the High Court in law-making

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The reasons for, and effects of, statutory interpretation

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Factors that affect the ability of courts to make law, including: Doctrine of precedent

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Judicial conservatism

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Judicial activism

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Costs and time in bringing a case to court The requirement for standing

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Features of the relationship between courts and parliament in law-making, including: The supremacy of parliament

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The ability of courts to influence parliament

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The interpretation of statutes by courts

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The codification of common law The abrogation of common law

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Reasons for law reform

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The ability and means by which individuals can influence law reform including through petitions, demonstrations and the use of the courts

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The role of the media, including social media, in law reform

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The role of the Victorian Law Reform Commission and its ability to influence law reform

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One recent example of the Victorian Law Reform Commission recommending law reform

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The role of one parliamentary committee or one Royal Commission, and its ability to influence law reform

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One recent example of a recommendation for law reform by one parliamentary committee or one Royal Commission

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The ability of parliament and the courts to respond to the need for law reform

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Command terms Analyse

A critical examination identifying the essential elements of features and principles

Apply

Use the information to illustrate meaning: makes links or connections,

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shows relationships Assess

Weigh up the value of

Comment on

Make relevant remarks about (that show an understanding of)

Compare and contrast

Compare means to show points of similarity; contrast means to show points of difference

Critically examine

To scrutinise carefully by detailed description

Define

Give exact meaning of

Describe

To give a factual account. If the question refers to a process, you may be expected to describe the process in sequential order

Discuss

To present a reasoned argument for and against a particular issue. You may add your opinion as part of a balanced argument.

Distinguish

To recognise or note differences, or to note the distinctive characteristics

Establish

Prove the point beyond dispute

Evaluate

Set out the strengths and weaknesses of, give your opinion of the value of the arguments

Explain

Provide details to give the reader an understanding of

Identify

To determine the key characteristics or features

Illustrate

Use examples to demonstrate and explain

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Indicate

Point out, show

Interpret

To explain an understanding of something

Justify

Demonstrate by giving evidence

List

Make point briefly in order of importance

Outline

A general account indicating only the key features – used by examiners to indicate that a brief factual account is expected

Suggest

Put forward ideas, proposals, recommendations explaining why the ideas are suitable

To what extent

The degree to which an intuition, procedure, or law fulfills a purpose or principle

KEY CONCEPT FOR UNIT 3: ● ●

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the principles of justice: fairness, equality and access key concepts in the Victorian criminal justice system, including: the distinction between summary offences and indictable offences, the burden of proof, the standard of proof, the presumption of innocence key concepts in the Victorian civil justice system, including: the burden of proof, the standard of proof, representative proceedings

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UNIT 3: Rights and Justice AOS 1: The Victorian Criminal Justice System Outcome 1: On completion of this unit the student should be able to explain the rights of the accused and of victims in the criminal justice system, discuss the means used to determine criminal cases and evaluate the ability of the criminal justice system to achieve the principles of justice.

KEY SKILLS: - Define and use legal terminology - Discuss, interpret and analyse legal principles and information - Explain the rights of an accused and of victims in the Criminal Justice System - Explain the purposes of committal proceedings and the roles of institutions available to assist an accused - Explain the reasons for the victorian court hierarchy in determining criminal cases - Discuss and justify the appropriateness of the means used to determine a criminal case - Discuss the responsibilities of key personnel in a criminal trial - Discuss the ability of sanctions to achieve their purposes - Discuss recent reforms and recommended reforms to the criminal justice system - Evaluate the ability of the criminal justice system to achieve the principles of justice - Synthesise and apply legal principles and information to actual and/or hypothetical scenarios

● the principles of justice: fairness, equality and access

Fairness refers to impartial and just treatment before the law, requiring fair processes and fair hearings that are unbiased and without favouritism.

Fairness is achieved through parties: -

Having the opportunity to know the case against them Having their opportunity to present their case/defence Having the opportunity to test the prosecution's case Having their case heard in an impartial and objective manner and without fear or favour

Aspects of the criminal trial which relate to fairness include: -

Time taken for a criminal trial to be determined The availability of legal representation for an accused Whether laws have been fairly applied Where the judge and jury have acted according to their responsibility

How fairness is reflected in the Legal System: - Impartial role of the judge - Strict rules of evidence and procedure - Legal rights: accused and victim - Entitlement to trial by an impartial judge and jury - Presumption of innocence - Right to know the evidence against you

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Equality means that all people should be treated equally before the law, regardless of characteristics and beliefs such as age, gender, nationality, religion, disability or sexuality. ○ Parties should be treated equally before the law with an equal opportunity to present their case. ○ This means that no person or group should be treated advantageous or disadvantageous, because of a personal attribute or characteristic ○ The processes and decision makers should be free from bias or prejudice ○ While everyone should be treated the same, the legal system acknowledges that there are diferences and so resources exist to provide balance- these seek to enable equal rights and opportunity: and ensure no one is disadvantaged.

How Equality is reflected in the Legal System: -

Strict rules of evidence and procedure that apply to both parties The use of a judge and jury when determining a case The availability of legal representation for persons of low socio-economic background The way diferences are treated Appeal avenues: court hierarchy

Access refers to people being aware of and understanding their legal rights and how to pursue their case. It also includes the ability to approach and make use of the criminal justice system, such as legal institutions that hear criminal cases ie. the courts or being able to approach bodies and institutions that provide legal advice, education, information and assistance about criminal cases, processes and outcomes. It does not mean parties seeking access will get the outcome they want, but that they will have the opportunity to make use of the processes and institutions to potentially gain the outcome they seek .

How Access is reflected in the Legal System: -

Available access to Legal aid and community legal centres for those who can't aford legal rep The hierarchy of the courts (eg Koori Court, Drug treatment court) Tribunals such as VCAT Interpreter services Pamphlets and internet info provided by legal system to educate the public on the rights and resources available Timely means to process and finalise criminal cases eg. plea negotiations and sentence indications

● key concepts in the Victorian criminal justice system, including: the distinction between summary offences and indictable offences

Summary offences: are minor (less serious) criminal ofences heard in the Magistrates court on summons, such as drink driving, speeding and minor assaults. There is no jur, therefore the hearing is presided (heard) by the Magistrate who will determine the verdict and sanction. Indictable offences: are the most serious ofences under the Crimes Act 1958, such as homicide, rape and serious drug trafficking which are heard at trial in the County of Supreme Courts before a judge and jury. The jury (of 12) determines the guilt or innocence of the accused and the judge ensures the strict rules of evidence and procedure are followed during the trial and determines the sanction if the jury returns a guilty verdict.

Indictable offences heard summarily: are serious indictable ofences under the Criminal Procedures Act 2009, such as theft under $100,000, that can be heard as a summary ofence in the Magistrates Court, instead of a jury in a higher court such as the County Court. The

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defendant must consent, and a magistrate must agree, for an expensive and maximum penalty is 10 year imprisonment. ➦ Accused will usually have their ofence heard summarily because it is Cheaper & quicker when heard in the Magistrates’ and the max penalty is far less than if it were heard as an indictable ofence Summary offences

Indictable offences

Nature of the offence

Minor criminal ofences

Serious criminal ofences

Courts that will generally hear this case

Magistrates Court

County or Supreme Court

Jury Trial

No

Yes- if accused pleads not guilty

Name of final hearing

Hearing

Trial

Main statutes in which the offences are contained

Some summary ofences are contained in the Summary Ofences Act 1996, but many are listed in various other Victorian statutes and regulations

As a general rule, ofences in the Crimes Act 1958 (Vic) are indictable

How it can be heard

Can only be heard as a summary ofence

Some indictable ofences can be heard summarily

Examples

Disorderly conduct, drinking or traffic ofences, minor assaults

Rape, Homicide ofences, fraud, drug trafficking

the burden of proof The Burden of Proof is the responsibility of a party to prove the facts of the case, it lies with the person or party who initiates legal proceedings. In a criminal case, this is the prosecution who has to prove that the accused is guilty beyond reasonable doubt. ○ The accused does not have to prove their innocence, unless the burden of proof is reversed (eg if the accused is pleading a defence, self-defence) the standard of proof The Standard of Proof refers to the extent or degree to which a case must be proven in court. In a criminal case, the prosecution must prove the case beyond reasonable doubt- the prosecution must show there is no reasonable doubt that the accused committed the ofence. ○ To prove guilt in a criminal case, there must be no other logical or reasonable conclusion reached by the Magistrate or Jury of 12 in the Country or Supreme Court (based on the facts) except that the accused is guilty. The presumption of innocence

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The Presumption of Innocence is an important concept of the criminal justice system because it is a guarantee by the state to its citizens that if they are accused of a crime, they will be presumed and treated as innocent until they are proven guilty beyond reasonable doubt in a court of law.

Features of Criminal Justice System that uphold the Presumption of Innocence: ○ Imposing the burden of proof on the prosecution (accused persons do not have to prove they are innocent, the prosecution has to prove that the accused is guilty) ○ The high standard of proof on the prosecution to prove their case to a magistrate or jury ○ Bail system, unless there are good reasons why a person should be deprived of their liberty through reading them into custody, they are entitled to receive bail while they wait for their hearing. ○ Accused has the right to silence and a person's silence is not taken as a sign of guilt. ○ Police must reasonably believe a person has committed a crime before they can arrest them. ○ Prior convictions cannot be revealed until sentencing (after they have been found guilty) to avoid the jury using past record as a reason to find them guilty

● the rights of an accused, including the right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury In Victoria, a number of rights are protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) which aims to promote human rights. Sections 23 to 27 of this contain rights available to accused in criminal proceedings – these are only available to human beings, not to companies. Right to be tried without unreasonable delay Under of the Human Rights Charter (S21), a person charged with a criminal ofence is entitled without discrimination, that they will be tried without unreasonable delay. This means that an accused is entitled to have his or her charges heard in a timely manner and that delays should only occur if they are considered reasonable. This protects their presumption of innocence, since they have not been convicted and to avoid deprivation of their liberty- for example, summary ofences must be brought before the court within 12 months. What is reasonable will depend on factors such as: the nature of the crime, the ability to find eviden...