unit 2 exam

Question 1

role of police in enforcing criminal law

Answer 1

the role of the police is to serve the community & enforce the law to promote a safe, secure, orderly society, by:
- talk to victims/ witnesses about what happened
- question suspects
- look for evidence
- charge people with offences

Question 2

role of victorian criminal courts

Answer 2

• determine a criminal case, by deciding if the accused is guilty
• imposing a sanction if a person is guilty

Question 3

criminal jurisdiction of magistrates court

Answer 3

• original: summary offences, indictable offences heard summarily, committal proceedings, bail and warrant applications
• No appellate jurisdiction

Question 4

criminal jurisdiction of county court

Answer 4

• original: indictable offences except murder, attempted murder, certain conspiracies, corporate offences
• appellate: from magistrates court on a conviction or sentence

Question 5

criminal jurisdiction of supreme court (trial division)

Answer 5

• original: serious indictable offences
• appellate: from magistrates court on a question of law

Question 6

criminal jurisdiction of supreme court (court of appeal)

Answer 6

• no original jurisdiction
• appellate: from the county or supreme court (with leave)

Question 7

criminal jurisdiction of childrens court

Answer 7

• original: offences committed by children between 10 and 17 years (except for certain offences)
• no appellate jurisdiction

Question 8

criminal jurisdiction of coroners court

Answer 8

• original: investigation of deaths and fires
• no appellate jurisdiction

Question 9

role of juries in a criminal trial

Answer 9

the role of the jury is to:
- listen to all the evidence
- concentrate during the trial
- piece the evidence together and decide whether the accused is guilty or not

Question 10

how do criminal juries achieve the principles of justice

Answer 10

• jurors are independent & impartial (equality and fairness)
• fairness: requires jury to deliberate based on evidence, spreads the responsibility
• jurors don’t give reasons for decisions, some may question fairness
• jurors may be influenced by lawyers (threatens fairness)
• jurors may be biased (threatens equality)

Question 11

purposes of sanctions

Answer 11

• punishment
• deterrence
• denunciation
• protection
• rehabilitation

Question 12

purpose of sanctions - punishment

Answer 12

a strategy designed to penalise the offender and show the community that behaviour won’t be tolerated

Question 13

purpose of sanctions - deterrence

Answer 13

general deterrence- process where the court can discourage the offender and others in the community from committing similar offences
specific deterrence- process where the court can discourage the offender from committing similar offences

Question 14

purpose of sanctions- denunciation

Answer 14

process by which a court can demonstrate the communities disapproval of the offenders actions

Question 15

purpose of sanctions- protection

Answer 15

strategy designed to safeguard the community from an offender in order to prevent them from committing further offences

Question 16

purpose of sanctions- rehabilitation

Answer 16

strategy designed to reform an offender in order to prevent them from committing offences in the future

Question 17

types of sanctions

Answer 17

• fines
• imprisonment

Question 18

explain fines (type of sanction)

Answer 18

• a fine is a sanction that requires the offender to pay a sum of money to the state of victoria.
• expressed in penalty units from 1-3000
• can be imposed in addition to another sentence.

Question 19

how do fines achieve the purposes of sanctions

Answer 19

• general and specific deterrent if high enough
• punishment if it is a burden on the offender
• demonstrate the court’s disapproval
• may not be a general deterrent as many fines dont get reported
• won’t rehabilitate unless imposed with another sanction
• may not be a general deterrent if offender has the capacity to pay

Question 20

how does imprisonment achieve the purposes of sanctions

Answer 20

• imprisonment protects the community and punishes the offender, as it removes the offender from the community.
• deterrent, both generally and specifically, as they are widely reported
• rehab depends on the offender
• high rates of re-offending show that imprisonment may not be effective

Question 21

factors considered by judges in sentencing

Answer 21

aggravating factors: circumstances considered in sentencing that can increase the seriousness of the offence or the offenders responsibility, resulting in a more severe sentence
mitigating factors: factors considered in sentencing that reduce the seriousness of the offence or the offender’s responsibility and lead to a less severe sentence

Question 22

mitigating factors

Answer 22

• if the offender is acting under duress
• prospects of rehabilitation
• personal strain the offender was under
• lack of injury or harm caused by the offence
• full admissions made by the offender

Question 23

aggravating factors

Answer 23

• the use of violence or explosives
• the offence taking place in front of children
• the offender being motivated by hatred or prejudice
• offender being in a position of trust and has breached that trust (eg. parent and child)

Question 24

explain mediation

Answer 24

• a method of dispute resolution, using an independent third party (mediator) to help the disputing parties reach a resolution
• the parties in dispute sit down and discuss the issues they disagree on and try to reach an agreement through negotiation
• this is done with the help of a mediator, who is neutral and impartial, the mediator discusses the issues with the parties and empowers both parties
• mediator is not trained in law but does need good people/ conflict resolution skills

Question 25

tribunals as institutions that resolve civil disputes

Answer 25

- Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes. - Tribunals develop expertise in particular types of disputes and are able to make binding decisions on the parties. - provide individuals with a low cost, efficient method of dispute resolution process --> increase access to justice - there are commonwealth and state tribunals - Fair work commission (cth), VCAT (victorian)

Question 26

complaints bodies as institutions that resolve civil disputes

Answer 26

- provide free complaints and dispute resolution service, designed to hear complaints from individuals and small businesses about services or goods provided to them - do not have the power to conduct a hearing or make binding decisions on the parties, services are limited to offering free dispute resolution services where parties disagree - consumer affairs victoria

Question 27

how can institutions achieve the principles of justice

Answer 27

access: - low costs - provide alternative methods of dispute resolution other than courts - services are freely available equality: - dispute resolution processes are independent and impartial - the informality of the process helps parties to feel at ease fairness: - dispute resolution processes are independent and impartial - dispute bodies are often specialised in certain areas of law - cannot create binding precedents, so there may be inconsistencies in the way matters are dealt with, decreasing fairness

Question 28

role of victorian courts in civil cases

Answer 28

to determine liability and decide on the remedy determine liability: - judge or magistrate considers the evidence and determines whether the defendant has caused loss or harm to the plaintiff, on the balance of probabilities - judge or magistrate will also have to decide if the plaintiff is liable for the counterclaim - the judge or magistrate is the decider of facts - court will provide specialisation & expertise, manage the case and hear appeals

Question 29

civil jurisdiction of victorian courts

Answer 29

magistrates: - original- claims up to $100 000 - appellate- n/a county: - original- unlimited - appellate- n/a, unless given under a specific act of parliament supreme (trial div) - original- unlimited - appellate- on a question of law from magistrates court and VCAT supreme (court of appeal): - original- n/a - appellate: from county, supreme or VCAT when constituted by the president or vice president

Question 30

role of juries in civil cases

Answer 30

to consider the facts of the case and decide who is most likely in the wrong - decision made on the balance of probabilities - if a unanimous verdict cannot be reached, then a majority verdict (5 out of 6) will be accepted

Question 31

similarities between civil and criminal juries

Answer 31

- both allow the community to be involved - both have to listen to the evidence and make a decision based on the facts of the case - both must come to either a unanimous or majority verdict

Question 32

differences between civil and criminal juries

Answer 32

- no automatic right to a jury in a civil trial, unlike there is in some criminal cases - majority verdict is accepted for civil trials, whereas a unanimous verdict is needed for most criminal trials - parties must pay for a jury in a civil trial, which can be expensive - 12 jurors criminal, 6 jurors civil - decision made on the balance of probabilities in civil law, beyond reasonable doubt in criminal law

Question 33

purpose of civil remedies

Answer 33

- to restore the party who has suffered loss or injury to the position they were in before it occurred - usually damages (money) - two types of remedies: damages and injunctions

Question 34

explain civil remedies (damages & injunctions)

Answer 34

- damages: an amount of money to be paid by the defendant to the plaintiff. main purpose of damages is to compensate the plaintiff for losses suffered. specific, general and aggravated - injunctions: a type of civil remedy when the court makes an order for the defendant to undertake an action or do something, in an attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered. two types: --> restrictive: stopping someone from doing something --> mandatory: sought when a person wishes to compel someone to do a particular act

Question 35

effectiveness of damages and injunctions in achieving the purposes of remedies

Answer 35

- effectiveness of damages and injunctions depend on the facts of the case, and the loss that the plaintiff has suffered. - main purpose of damages is to compensate for losses suffered - general damages aim to compensate for pain and suffering - specific damages compensate for items that can be calculated objectively - aggravated damages compensate the plaintiff further if the defendant has caused humiliation > the type of loss that has been suffered (economic or non-economic) > has the plaintiff suffered physical injury (specific) > has there been loss of life? > is there another remedy better for the plaintiff? - injunctions attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered. - restrictive: aim to stop someone from doing something - mandatory: compel someone to do something > whether the defendant has caused too much damage > whether the defendant will comply with the injunction > what about compensation for time, stress and inconvenience of court proceedings? > is there another remedy that is better for plaintiff?

Question 36

reasons for court hierarchy

Answer 36

1. appeals: parties can appeal a case to a higher court if they are not satisfied with the decision 2. specialisation: courts develop expertise in certain types of cases 3. doctrine of precedent courts can make laws (precedent) based on decisions made during cases which are binding on lower courts 4. administrative convenience: allows smaller cases to be heard in the magistrates court, and more complex cases to be heard in county or supreme

Question 37

strengths of mediation

Answer 37

- a decision made by the parties is more likely to be acceptable to the parties, as they have reached the decision themselves - more informal than a courtroom - less confrontational - more flexibility - more affordable than a court case

Question 38

weaknesses of mediation

Answer 38

- participation and willingness of the parties is required to be successful - decisions are not binding - mediator has no power to order the parties to come to a decision - not appropriate for some disputes - mediator is not able to give advice or offer suggestions

Question 39

strengths of the courts to resolve civil disputes

Answer 39

- judges are impartial who make decisions based on facts and law- fairness - reduce delays through case management - judges have specialised knowledge because of court hierarchy, ensuring fairness and expertise - courts can make binding decisions ensuring certainty in the outcome

Question 40

weaknesses of the courts to resolve civil disputes

Answer 40

- can be expensive due to the need for legal representation - can be delays - formality of the process can result in feeling stressed or intimidated - without legal representation, which can be expensive, a party can be disadvantaged in presenting their case

Question 41

influence of international declarations and treaties on the protection of rights (example)

Answer 41

- international treaty: an agreement between countries to be bound by international law. - declaration: a document that outlines a set of standards that nations voluntarily agree to. - The rights that Australia protects are often influenced by international declarations and treaties such as the Universal Declaration of Human Rights. - commonwealth gov gives its commitment to uphold a range of international human rights treaties by becoming a signatory. for the treaty to become law, the nation must pass legislation to approve and adopt rights outlined in the treaty --> ratification - eg. international covenant on civil and political rights