Flashcards in Extra Deck (20):
DELAYS AFFECTING ACCESS TO THE LAW.
The way in which our legal system is structured or organised can contribute to problems and difficulties faced by individuals when trying to obtain a just outcome in their case. Court processes and procedures can lead to factors such as delays being experienced by parties, thereby compromising the likelihood of a timely resolution to a dispute.
What can delays in legal processes and procedures limit?
Delays in legal processes and procedures can limit the effective operation of the legal system. When people become involved with the law they generally want a swift resolution to the matter because there is always uncertainty about the outcome.
What are the causes of delays in civil actions?
. Individuals failing to take the initial steps to seek legal advice about a problem that has occurred, this could be due to lack of awareness of their rights and how to pursue them, fear of high costs, distrust of lawyers.
. The general trend towards increased litigation when an individuals rights have been infringed.
. Improved technology that has resulted in more information being gathered and used in civil trials.
. Lack of available judges and/or courtrooms to hear a case.
What procedures have been put in place (changes in the operation of the legal system) in order to reduce the delays in civil disputes?
. Pre-trial procedures - aimed at exchanging information and documents to encourage an out-of-court settlement or to reduce the facts to be contested at trial.
. Directions hearings - time limits are set for the filing of documents and admissions from parties are encouraged to decrease the time taken in the court hearing.
. Pre-trial conferences - encourage an out-of-court settlement.
. Alternative dispute resolution - ADRs have provided an alternative to courts, thereby reducing the backlog of cases on courts.
Criminal cases and delays.
The effects of delays in criminal cases could include:
. Emotional strain
. Physical and mental effects of spending time in prison (if held in remand)
. Stigma or being charged or being in prison
. Possible loss of job
. Disruption of family life
. Memory loss of witnesses or witnesses being unavailable
Why might the outcome of a case be unjust?
The outcome of a case might be unjust as there is no compensation to cover these effects. Compensation will only be awarded to the accused if it can be proved that there was negligence on the part of the police or Office of Public Prosecutions and the accused should have been found not guilty. Such compensation does not cover time waiting for trial.
What is another effect of long delays?
Another effect of longs delays is that the person granting bail might be reluctant to refuse bail because of the likelihood of a long wait for the trial, which could result in accused people (who might be a danger to society) being allowed to go free. On the other hand, a person might be refused bail unnecessarily.
What are the causes of delays in criminal cases?
. The reluctance of the victim to come forward and report the crime, this could make witnesses and evidence more difficult to find.
. Difficulties in collecting evidence due to increased complexities of crimes and increased claims on police resources.
. Suspect refusing to cooperate with police, exercising their right to silence.
. Difficulties in locating witnesses.
. Committal hearings delaying the process of getting a suspect to trial.
What are some procedures that have been put in place (changes in the operation of the legal system) in order to reduce delays?
. Special mention hearings - a defendant is provided with the opportunity to plead guilty and he committed for a trial quickly,
. The hand-up-brief method of committal hearing - these are cheaper and quicker than full committal hearings due to the reliance on written rather than oral evidence. This has been beneficial to victims in result ing their trauma as they do not have to give oral evidence and do not have to be cross-examined unless their presence is specifically requested.
. The case list management system, including case conference - the judge can speed up the process to trail be advising and providing guidance to the parties.
. Directions hearings - these hearings speed up the pre-trial and trial processes by setting time limits on the parties and providing the opportunity for the parties to make admissions before going to court.
. Charge negotiation - this can reduce trial time due to the agreements being made with the accused about what charges are to be laid.
What are the suggested changes to reduce delays?
Extended court hours - the Victorian parliament is considering the inclusion of night courts, breakfast courts, afternoon courts and weekend courts in order to extend sitting time of the Magistrates' Court and improve access in justice. Attorney General Rob Hulls suggested 10am-4pm, 2pm-8pm and Saturday mornings.
Continuation of the 24 hour initial Directions Hearing pilot program - in 2013, the County Court introduced the program to reduce delays inc criminal cases by holding the directions hearing 24 hours after the committal hearing.
COSTS AFFECTING ACCESS TO THE LAW.
The costs affecting access to the law include:
. Cost of legal representation
. Court costs
. Availability of legal aid
Explain how the following cost affects access to the law: Cost of legal representation.
Everyone has the right to legal representation, however not everyone can afford to exercise this right. To achieve a fair and just outcome, legal representation is necessary due to the complexity of the adversary system. The cost of legal representation depends on:
. The complexity of the case
. The court in which the case will be heard
. The nature of the case - number of witnesses, extent of evidence
. The length of proceedings
. The expertise of lawyers and barristers
Explain how the following cost affects access to the law: Court costs.
Court filing fees, court hearing fees, jury costs in civil disputes.
Explain how the following cost affects access to the law: Availability of legal aid.
Legal aid is a government funded central agency for the organisation and distribution of legal assistance. VLA provides legal advice, focusing on those who need it the most such as those who are socially and economically disadvantaged. Main areas covered are criminal law, family law and civil law.
Problems in applying for legal aid - a number of restrictions apply including funding in family law matters will be limited to trail preparation, funding in child protection matters will only be provided to children and people defined as parents, appeals in the Victorian Court or Appeals and High Court will only be funded where there is a reasonable chance of a lesser sentence or non-parole period.
What are suggested changes to reduce costs?
. Greater use of class actions
. Using contingency fees - which involves a successful party paying a percentage of the award for damages, rather than paying a nominal fee.
. Public defenders scheme - VLRC recommended the introduction of the public defenders scheme - paid salary barristers who are paid by the state, but independent of the government. They are available to represent people charged with serious criminal offences and have been granted legal aid.
CULTURAL, SOCIAL AND ECONOMIC DIFFERENCES IN THE COMMUNITY.
The diversity of the Australian community gives rise to several restrains on the effective operation of the legal system. These include language barristers, cultural differences, financial inequalities, differing experiences and understanding of the law.
These factors limit the extent to which individuals can be treated equally or receive a fair trail.
Who can experiences difficulties that may effect their ability to be treated equally or receive a fair trial?
. Aboriginal people
. Other groups
Why might migrants experience difficulties that may effect their ability to be treated equally or receive a fair trial?
Migrants may experience difficulties due to cultural differences, language skills, etc. These problems may arise in relation to:
. Understanding the difference between bail and sanctions/capacity to fulfil bail conditions.
. Understanding the certain types of behaviour are considered to be "criminal" when they may have been accepted in their country of origin.
. Understanding their rights and responsibilities during police investigation.
. Understanding how the adversary system operates.
. The need for an appropriate interpreter in court in order to give evidence and understand proceedings.
Why might aboriginals experience difficulties that may effect their ability to be treated equally or receive a fair trial?
Aboriginal people experience some disadvantages as a result of conflicting values and norms as well as conflicts between laws. The nature of the problems experienced varies from region to region, but they are commonly attributed to one of the following:
. Clashes with customary law.
. Cultural differences and taboos coming into conflict with laws concerning the giving of evidence and responding to police questioning.
. Understanding the differences between bail and sanctions.
. Discriminatory attitudes in the community.
. Over-policing for minor offences resulting in Aboriginals coming to court for minor offences of being held in police lock-ups.
. Difficulties in exercising civil rights due to the limited access to legal resources. Until recently, Aboriginal rights to take a civil action have not been fully recognised.
. Despite extensive recommendation for change, the rates of Aboriginal deaths in custody continue to be a concern. Relatively few recommendations have been implemented.