Legal studies AOS 1 unit 3 SAC 1B

Question 1

The role of the judge or magistrate

Answer 1

An independent and impartial adjudicator. They make sure that the party who has the burden of proof in a criminal trial fulfils that burden to the standard of proof required.

Question 2

Selecting a jury

Answer 2

12 people empanelled to a criminal jury

Question 3

Role of the jury- understand directions and summary

Answer 3

At the end of the trial, the judge provides jury directions. This is a summary of the case, an explanation on points of law and discussions of key issues.

The jury must pay attention to jury directions and ask questions if they do not understand.

Question 4

Role of the jury- deliver a verdict

Answer 4

• Make decision about the facts of the case
• Deliberations are done freely and without pressure. They are confidential and kept between 12 jurors
• Aim to reach a unanimous verdict

Question 5

Role of the jury- listen and remember evidence

Answer 5

Jurors take an oath of good faith

As decider of facts, jurors need to be able to make sense of what is often complicated evidence

Concentration is expected from all jurors

Question 6

Role of the jury- be objective

Answer 6

Jurors need to have an open mind and be impartial

All prejudice or preconcieved notions should be put aside

Question 7

Roles of the jury

Answer 7

• Be objective
• Listen and remember evidence
• Deliver a verdict
• Understand directions and summary

Question 8

Selecting a jury

Answer 8

Regulated by the juries act 2000 (Vic)

At least every 12 months the juries commissioner must notify the electoral commissioner of the number of people that will be required for jury service in a jury district.

Question 9

Jury

Answer 9

• 12 people empanelled to a criminal jury
• Some members of society are disqualified or ineligible. others may excuse themselves.
• The prosecutors and the defence also can challenge with or without reasons

Question 10

Role of judge-> Sentencing

Answer 10

Parties will make submissions about sentencing should the accused be found guilty or they enter a plea of guilt

Guidelines of sentencing are outlined in the sentencing act 1991 (Vic) and they are expected to comply.

Question 11

Role of judge -> Decide or oversee the outcome (magistrate)

Answer 11

• Has the role of determining if the accused is guilty because of the absensce of a jury
• Listen to both sides of the case and decide the facts and points of law

Question 12

Role of judge -> Manage the trial or hearing

Answer 12

• Judges and maistrates are required to control and suprevices the proceedings, ensuring that it is fair and accurate

Need to make sure court procedure is followed

Question 13

Roles of judges

Answer 13

• Act impartially
• Manage the trial or hearing
• Decide or oversee the outcome
• Sentencing

Question 14

Role of judge-> Act impartially

Answer 14

Critical in upholding fairness

Any person before a court has the fundamental right to a hearing by a judge/magistrate who is independent and impartial

Question 15

Judge- sentencing

Answer 15

• Parties will make submissions about sentencing should the accused by found guilty or they enter a plea of guilty- this is part of procedural fairness
  
  • Guidelines for sentencing are outlined in the Sentencing Act 1991 (Vic) and they are expected to comply

Question 16

Strengths of judges and magistrates

Answer 16

• Judge and magistrate acts as an impartial umpire- meaning there is no advantage or disadvantage
• Correct rules and procedure are upheld by having judges or magistrates manage the proceeding
• To a degree, judges can assist self-represented parties to promote a fairer proceeding

Question 17

Weaknesses of judges and magistrates

Answer 17

• Humans have bias, sometimes apprehended bias can be shown if a judge is tired
• Lack of diversity amongst judges and magistrates. This can make some parties uncomfortable
• They cannot overtly intervener with a case

Question 18

Jury

Answer 18

• 12 people empanelled to a criminal jury
• Some member of society are disqualified or ineligible. Others will excuse themselves.
• The prosecutor and the defence can also challenges with or without reasons
• Carers are more likely challenged in peremptory challenges.

Question 19

Selecting a jury:

Answer 19

• Regulated by the juries act 2000 (Vic)
• At least every 12 months the juries commissioner must notify the electoral commissioner of the number of people that will be required for jury service in a jury district.
• Initial questionnaire needs to be completed and then a summons will be handed out.

Question 20

Role of the jury:

Answer 20

• Be objective
• • Listen and remember evidence
• Deliver a verdict:
• understand directions and summary

Question 21

Role of jury- be objective

Answer 21

• Jurors need to have an open mind and be impartial
  
  • All prejudices or preconceived notions should be put aside

Question 22

Role of jury - listen and remember evidence

Answer 22

• Jurors take an oath of good faith
  
  • As decider of facts, jurors need to be able to make sense of what is often complicated evidence
  • Concentration is expected from all jurors

Question 23

Role of jury- deliver a verdict

Answer 23

• Make decisions about the facts of the case.
  
  • Deliberations are done freely and without pressure. They are confidential and kept between 12 jurors- no 13th person is allowed in the room.
  • Aim to reach a unanimous verdict

Question 24

Role of jury- understand directions and summary

Answer 24

• At the end of the trial, the judge provides jury directions. This is a summary of the case, an explanation on points of law and discussion of key issues
  
  • The jury must pay attention to jury directions and ask questions if they do not understand.

Question 25

Responsibilities of both parties:

Answer 25

- The parties to a criminal trial are the prosecution (initiates the case) and the accused (person charged with crime) - Each party maintains control over the way their case is run, but must comply with the courts rules, directions and orders.

Question 26

The main roles of both parties

Answer 26

- Giving an opening address- must refer only to evidence that will be used during the trial - Contributing to empanelment of jury - and request directions be given to jury during trial - Preparing and presenting evidence to support their case - giving a closing address making submissions about sentencing

Question 27

Role of the prosecution:

Answer 27

- Acts on behalf of the state, and bears the burden of proof. They may be; - Victoria Police (For magistrates court) - The office of public prosecution, represented

Question 28

Role of the accused:

Answer 28

- Do not hold burden of proof - Two important roles: - Participate in the trial, or else a warrant may be used for their arrest - Make submissions about sentencing

Question 29

Role of the legal practitioner:

Answer 29

- Prepare and run cases on behalf of their clients - The solicitor normally researches the case and liaises with the other party to the case, while the barrister presents the case in court.

Question 30

Why you should have a lawyer?

Answer 30

- Legal advice is essential to upholding the rule of law. It ensures rights are protected and fair processes are adhered to

Question 31

Limitations of legal practitioners:

Answer 31

- The accused still retains the power to appoint their own legal practitioner - The legal practitioner is generally bound to follow the instructions of their client - When there is significant difference in skills and expertise, one legal practitioner may be advantaged and succeed in swaying the jury.

Question 32

Factors that impact justice in the criminal justice system:

Answer 32

- Cost factors - Time factors - cultural factors

Question 33

Cost factors:

Answer 33

- Main cost is hiring legal advisors - Solicitors charge time-based fees that are often several hundred dollars per hour their time - Additional charges can come in the form of court

Question 34

Cost factors and the Principles Of Justice

Answer 34

- FAIRNESS: Unrepresented litigations can be disadvantaged due to lack of familiarity with trial procedures, becoming too emotional when representing themselves. - ACCESS: Parties without skilled representation may be forced by more skilled barristers who are better placed to present their case. - EQUALITY: Self-represented or underrepresented clients will not know their rights, rules, evidence or the procedure.

Question 35

Addressing cost issues:

Answer 35

- Availability of legal representation: - Lots of people do not have access to VLA representation as they do not meet the income and means test - Limits those who can have legal representation - Use of committal proceedings: - Costs are wasted over committal proceeding and early guilty pleas when the accused does not actually take it - Use of plea negotiations: - Private discussion between the accused and the prosecution that the accused pleads guilty to a lesser charge or lesser sentence

Question 36

Time Factors:

Answer 36

- Preparing a case for trial is a time consuming process - Delays can be frustrating for the accused as “Justice delayed is justice denied”

Question 37

Addressing delays:

Answer 37

plea negotiations allows for a more time-effective process and a quick address of the case

Question 38

Principles of justice: and addressing delays

Answer 38

Equality: Vulnerable persons in the court system may find delay more distressing and therefore be disadvantaged before the law. Access: Delays in cases negatively impact the accessibility of courts for all parties Fairness: Delays impact evidence- witnesses may forget important parts of their testimony

Question 39

Cultural factors

Answer 39

Although First Nations adults constitute of around 3% of the national population, our people constitute 27% of Australia's national prison population.

Question 40

Specific difficulties of Aboriginal and Torres Strait Islander people (ATSI):

Answer 40

- Language barriers - Direct questioning- can be seen as disrespectful to answer questions with yes/no, and instead attempt to tell long roundabout stories - Body language- direct eye contact is disrespectful - Cultural taboos- gender-based knowledge, and use of deceased peoples names - Stress/anxiety over incarceration

Question 41

Koori court:

Answer 41

- Division of the Magistrates court, county court and children's court - Used for aboriginal persons charged and who plead guilty - Division of the magistrates court, the county court and the children's court which aims to provide fair, equitable and culturally relevant justice services

Question 42

Language barriers

Answer 42

- People whos not first language is English may have problems with documents, processes and other details of the legal system - Interpreters are able to be used for the accused