Flashcards in Justice systems Deck (49)
What can be resolved through ADR
This refers to civil disputes being resolved without the parties involving adjudication. That is, the parties pursue an ‘alternative’ method of resolving their differences.
There are two types of dispute resolution
Resolution directly between the two disputing parties
Resolution with the involvement of an independent and impartial third party
Resolution between two disputing parties can take the form of
Abandoning the claim
In this method the aggrieved party takes his or her own steps to bring about a conclusion that satisfies him or her. Despite being an inexpensive method, in which the aggrieved party is in total control, it can too easily involve criminal behaviour that could be subject to proceedings in criminal law.
Abandoning a claim
An aggrieved person could simply cease pursuing the action because: • the matter is trivial and not worth the expense or effort
• the wrongdoer is a ‘straw person’ and is not in a financial position to provide a remedy even if the aggrieved party is successful
• the aggrieved party would prefer to maintain good relations with the family member or friend who is alleged to have committed the civil wrong.
In this method the wrongdoer admits liability and settles, usually because that party knows he or she is in the wrong and would be unsuccessful if litigation ensured.
Types of third person ADR
the parties are in control of the procedure. They agree on who the mediator will be and where and when the mediation conference will occur.
• attendance is voluntary and the parties are not legally bound by any agreement reached.
• costs are often non-existent or minimal, particularly as lawyers are usually excluded.
• Its great weakness being that there is no guarantee that agreement will be reached and any decision made cannot be legally enforced.
A more formal method, similar to mediation, but is often compulsory in some branches of law, before a matter can proceed to adjudication in a court or tribunal. eg conciliation conference prior to a matter being heard in an industrial tribunal, however, no decision reached by a conciliator can be enforced by law.
A relatively formal method of ADR in which the parties consent, by contractual agreement, to have a matter resolved by an independent arbitrator. All stages and procedures, including the outcome, are enforceable per the rules of contract law. It is becoming a popular method of ADR as expenses are minimised and the parties retain significant control over the dispute settlement procedures.
Reasons for court hierarchies
Doctrine of precedent
Judicial review and appeals
what are juries
A jury is a random selection of people who sit, as peers of the accused, at a criminal trial to decide the verdict of an accused person charged with an indictable offence. Most juries are comprised of 12 adult jurors, although the Juries Act 1927 (SA) allows up to 15 jurors to be empanelled.
Role of the jury
A jury’s fundamental role is to decide whether an accused person is guilty of not guilty (ie decide the verdict) of the crime for which he or she is being tried.
A jury must only reach a verdict based solely on the admissible evidence presented at the trial, in accordance with the law as explained by the trial judge.
Types of verdicts
All jurors come to the same conclusion
Murder requires it
Accepted by judge after 4 hours of deliberation
11-1, 10-2 (With 12 jurors).
Hung jury verdict
No statuary majority
Strengths of a jury
- An accused person’s guilt or innocence is determined by his/her peers and not agents of the State.
- This can prevent the abuse of government power.
- An extension of the democratic principle in which ordinary citizens (adult peers of the accused) take a direct role in decision making that has a profound affect on a fellow citizen.
- Reaching a verdict rests on the shoulders of a panel (usually 12 jurors) and not solely at the discretion of one judge ie shared-decision-making.
Weakness of a jury
- Not a true cross section of the community
- Elderly citizens over 70 years of age are ineligible
- Large proportion of immigrants with a poor command of the English language are excluded
- Large number of people excused eg professionals or business positions.
- Jurors are unqualified in legal matters and many have difficulty weighting and applying evidence to reach a logical conclusion
- Non-disclosure of reasons for a verdict means juries are not subject to public scrutiny, therefore jurors are not held accountable. ie juries could make decisions based on faulty logic or personal biases.
Reforms to jury system
Juries should somewhat have a say in the sentencing process instead of solely the judge. This is to prevent the judge from being too harsh if they have been adjudicating for many years and have heard a multitude of similar cases.
• Jurors should have a brief education in the legal system before they can sit on the jury. For example: Should be given various informative books to read and/or attend a few classes to get their head around the general idea of law.
• Juries should give a reason for their verdict. This will give a further understanding as to why they have come to that verdict.
• Have one foreperson for the jury who has had sufficient legal training. This person can assist in explaining various legal ideas (for example: court procedure, rule of evidence and law, etc) throughout the trial to the jurors with minimal legal knowledge.
• Introduce a ‘not proven guilty’. Like the inquisitorial system, allow the jury to make a ‘not proven guilty’ verdict so if more evidence surfaces after the first trial, the accused can be retrialed.
Criminal Pre-trial stage
- Preliminary hearings to determine whether a prime facie case exist to carry through a trial
- Police department gathers evidence and presents to DPP
- DPP must present all evidence to defendant at least 14 days before hearing.
- Application for bail
Criminal trial stage
- Prosecution has burden of proof and standard is beyond reasonable double.
- a verdict is given
- May appeal on issues of law to CCA
- Legal rights
- Examination in chief, cross examination, re-examination.
Criminal post-trial stage
- DPP and defence make submissions before a sanction is given.
- Prior convictions and factors taken into account
- appeal on issues of fact.
Civil pre-trial stage
- The litigants exchange documents to facilitate out of court settlement (ADR)
Civil trial stage
plaintiff has burden of proof and standard is bal of p
- Appeal to the full court of supreme court
- no jury
Civil post-trial stage
Damages (general and special)