Unit 4 AOS1a - Chapter 6: Resolution Bodies and Methods Flashcards Preview

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Flashcards in Unit 4 AOS1a - Chapter 6: Resolution Bodies and Methods Deck (90):
1

What are criminal cases?

Criminal cases are usually between the state and an individual or individuals and involve actions that are against the law, harmful to society and punishable by the law.

2

Who are the parties to a criminal case?

The parties to a criminal case are the prosecution (acting on behalf of the state to prosecute in the case) and the accused (the person accused of the crime). In most criminal cases there is a victim who has been offended against.

The task of taking the accused to court lies with the prosecution, on behalf of society. A victim of a criminal offence is likely to be a witness for the prosecution, explaining to the court what occurred. Examples of offences covered under criminal law include murder, theft and fraud.

3

What are the types of criminal cases?

Criminal offences can be broken down into summary offences and indictable offences. There are also indictable offences that can be heard summarily.

4

What are summary offences?

Summary offences are minor criminal offences that are heard before a magistrate in the Magistrates’ Court; for example, offensive behaviour.

Many summary offences are breaches of local laws or laws made by subordinate authorities. Offences listed in most Acts of parliament are summary offences unless an Act declares them to be indictable offences.

5

What are indictable offences?

Indictable offences are serious criminal offences that are heard before a judge and jury in superior courts such as the County Court or Supreme Court; for example, homicide and fraud.
As a general rule, offences listed in the Crimes Act 1958 (Vic.) and the Wrongs Act 1958 (Vic.) are indictable offences unless these Acts state that an offence is a summary offence.

6

What are indictable offences heard summarily?

These are less serious indictable offences that can be heard in the magistrates' court. This includes offences for which maximum jail term is 10 years or less.

7

What happens after a crime has been committed?

Once a criminal offence has occurred and has been reported to the police, the police or the Office of Public Prosecutions will decide how the matter is to proceed. The seriousness of the case will determine the court in which the matter is to be heard.

The police or the Office of Public Prosecutions may decide to drop the case because of insufficient evidence, or may decide to channel the accused into a diversionary program or a victim/offender mediation program.

If a criminal case goes to court, strict rules of evidence and procedure are used in resolving the case.

8

What are civil disputes?

Civil actions are disputes between two or more individuals or groups. Civil actions usually involve the infringement of rights.
The aim of a civil action is to return the party whose rights have been infringed to his or her original position (as far as possible).

The most common types of civil actions are torts, which include negligence, trespass, nuisance and defamation, and contract law, which involves a dispute about a legally binding agreement between two or more parties.

9

Who are the parties to a civil dispute?

A party who has been harmed, called the plaintiff, sues the party who has allegedly caused the harm, called the defendant. The plaintiff seeks a particular remedy.

Individuals, organisations and the state can be a party to a civil action as the party whose rights have been infringed, or the party that has infringed the rights of another.

10

What are the various ways to resolve a civil dispute?

. Courts
. Tribunals
. Alternative dispute resolution (ADR) methods

11

Explain the following way to resolve a civil dispute: courts

The traditional way of resolving a dispute is to take it to a court for resolution through judicial determination. The judiciary (including judges and magistrates) presides over the case, and formal rules of evidence and procedure are used.

A decision by a court is binding on the parties, although it can be appealed against. Sometimes the courts may refer a matter to a dispute resolution method, such as mediation, to give the parties the opportunity to settle the matter before it is judicially determined.

12

Explain the following way to resolve a civil dispute: tribunals

Tribunals have the power to resolve specific civil disputes within the area of law-making power they have been given; for example, discrimination cases, or disputes between landlords and tenants.

Tribunals such as the Victorian Civil and Administrative Tribunal (VCAT) are less formal in the way in which they hear cases, but are still able to make binding decisions. Tribunals will often encourage the parties to settle their disputes themselves, if possible.

13

Explain the following way to resolve a civil dispute: alternative dispute resolution (ADR) methods

ADR includes mediation, conciliation and arbitration. These methods of dispute resolution are generally quicker, cheaper and less intimidating. However, other than arbitration, they are usually not binding on the parties.

The parties may use an ADR method without going to a court or tribunal, such as attending mediation arranged by the parties, or the parties may be required by the court or tribunal to try to settle the matter through an ADR method before it is judicially determined.

14

What are the consequences of criminal and civil cases?

The consequence of being found guilty of breaking a criminal law is punishment of the offender, determined by the court; for example, imprisonment, a community protection order or a fine.

Consequences of a successful civil action usually includes damages being paid by the defendant to the plaintiff or another civil remedy.

15

When is there an overlap between criminal and civil law?

There is considerable overlap between criminal and civil law. Some actions, such as an assault, can give rise to a criminal prosecution instigated by the state as well as a civil action instigated by the victim. However, the consequences of criminal and civil actions vary.

16

Both criminal and civil action.

In instances where the same action gives rise to both a criminal action and a civil action, the two cases will be heard separately and may be heard in different courts.

The outcome of one does not affect the outcome of the other, but a guilty verdict in the criminal action may provide a stronger basis for the plaintiff to succeed in the civil action.

It is possible for an accused to be found not guilty in a criminal case, but found liable in a civil case relating to the same wrong. This is often because the standard of proof in a criminal case is much higher than in the civil case.

The jury (or magistrate if it was a summary offence or an indictable offence heard summarily) may not have found beyond reasonable doubt that the accused was guilty.

However, in the civil case, the judge or the jury of six may believe that the plaintiff’s version of facts is more believable than the defendant’s version, and may therefore find the defendant liable.

17

Explain the following difference between criminal and civil cases: person bringing the action

Criminal case - prosecution, on behalf of the state
Civil case - plaintiff (the wronged party)

18

Explain the following difference between criminal and civil cases: person defending the action

Criminal case - accused
Civil case - defendant

19

Explain the following difference between criminal and civil cases: case name

Criminal case - DPP v. Accused (also R. v. Accused)
Civil case - Plaintiff v. Defendant

20

Explain the following difference between criminal and civil cases: aim

Criminal case - to protect society, to punish offenders, to denounce the crime, to deter the offender or others and to rehabilitate.

Civil case - to regulate conduct between parties and to provide compensation to an injured party to restore, as far as possible, the plaintiff back to where they were before the infringement occurred.

21

Explain the following difference between criminal and civil cases: consequences of the action

Criminal case - action or sentence
Civil case - remedy

22

Explain the following difference between criminal and civil cases: burden of proof at trial

Criminal case - prosecution
Civil case - plaintiff

23

Explain the following difference between criminal and civil cases: standard of proof

Criminal case - beyond reasonable doubt
Civil case - on the balance of probabilities

24

What are the points you look at when differentiating between criminal and civil law?

. Person bringing the action
. Person defending the action
. Case name
. Aim
. Consequences of the action
. Burden of proof at trial
. Standard of proof at trial
. Evidence/investigations
. Pre-trial procedures
. Jury
. Verdict
. Judicial outcome
. Resolution process
. Examples of laws
. Common words used in cases

25

Explain the following difference between criminal and civil cases: pre-trial procedures

Criminal case - the main purpose is to see whether there is sufficient evidence to support a conviction.

Civil case - the main purpose is to clarify issues and let each party know the other party’s evidence.

26

Explain the following difference between criminal and civil cases: evidence/investigations

Criminal case - the police investigate on behalf of the state
Civil case - the plaintiff gathers their own evidence

27

Explain the following difference between criminal and civil cases: jury

Criminal case - no jury in the magistrates court but a jury of 12 in higher courts when the accused pleads guilty (compulsory).

Civil case - no jury in the magistrates court but a jury of 6 in her courts is optional.

28

Explain the following difference between criminal and civil cases: verdict

Criminal case - guilty or not guilty

Civil case - finding for the plaintiff or the defendant

29

Explain the following difference between criminal and civil cases: judicial outcome

Criminal case - sanctions eg. imprisonment, community based order, fine

Civil case - remedies eg. damages, orders of specific performance, injunction

30

Explain the following difference between criminal and civil cases: resolution process

Criminal case - heard in court, although victim/offender mediation can be used in the process.

Civil case - could be resolved in court, tribunals, other methods of dispute resolution such as mediation, conciliation or arbitration, or another dispute-solving body such as the Dispute Settlement Centre.

31

Explain the following difference between criminal and civil cases: examples of laws

Criminal case -
. offences against the person: homicide, assault, sexual offences
. offences against property: theft, arson, fraud
. offences against the state: treason, sedition
. offences against the legal system: perjury, contempt

Civil case -
. tort law: negligence, defamation, nuisance, trespass
. contract law
. constitutional law
. property law
. family law
. wills and estates

32

Explain the following difference between criminal and civil cases: common words used in cases

Criminal case - accused, prosecution, victim, arrest, police, bail, remand, guilty, sentence, punishment

Civil case - sue, plaintiff, compensation, damages, negligence, tort, litigation

33

7 terms at the beginning of the chapter.

....

34

What does the Victorian court system consist of?

The Victorian court system consists of a variety of courts, each with different functions and jurisdictions.

35

What is jurisdiction? (Also look at notes)

Jurisdiction refers to the power that courts have to hear cases arising from particular areas of law. It indicates the type of cases that courts can hear and adjudicate on, for example minor cases or more serious cases. Jurisdiction can also refer to the geographical boundaries of a court’s powers.

The lawful authority of a court or tribunal to decide a particular case according to the severity of the case.

36

What are the types of jurisdiction?

Original and appellate jurisdiction.

37

What is original jurisdiction? (Look at year 11 notes/flashcards)

This is the power of a court to hear cases for the first time.

When a matter is taken to court for the first time, it is known as the court of first instance. The court is sitting in its original jurisdiction. The court has the power to hear the particular case for the first time. A case heard in the Magistrates’ Court is known as a hearing and a case heard in the higher courts is known as a trial.

38

What is appellate jurisdiction?

This is the power of a court to hear cases on appeal.

If a party to a court case is not happy with the decision and wishes to challenge it, and there are sufficient grounds, the case can be taken to a higher court on appeal. When the court is hearing an appeal, it is sitting in its appellate jurisdiction. The person bringing the appeal is known as the appellant and the other party is the respondent. There is no jury when a court is sitting in its appellate jurisdiction (hearing an appeal). Not all courts can hear appeals.

39

What do grounds of appeal include?

Grounds for appeal can include:
• on a point of law (where some law has not been followed; for example, the court was allowed to
hear inadmissible evidence)
• on conviction (only in criminal cases)
• on the severity of the sentence (in criminal cases) or the remedy awarded (in civil cases).

40

Explain the court hierarchy.

Victorian courts, like those in the other states, are arranged in a court hierarchy. That is, they are graded in order of importance and severity of cases heard, with the High Court being the highest court dealing with the most complex issues. The Magistrates’ Court is at the bottom of the hierarchy and deals with less serious issues.

It has been suggested that a one-court system could be less complicated. There would be no confusion about which court a matter should be taken to, and the court costs would be the same whatever type of action was being heard. However, this system could be an administrative nightmare and could lead to very long delays.

41

Explain the court hierarchy in some regional areas.

In regional areas, there can be a number of courts operating in the same building. There are 12 regional courts that are multi-jurisdictional; that is, they house the Magistrates’ Court, the County Court, the Supreme Court and the Victorian Civil and Administrative Tribunal (VCAT) all in one building. In the metropolitan area, however, the courts and VCAT are all situated in separate buildings.

42

What are the reasons for a court hierarchy?

. Doctrine of precedent
. Appeals
. Administrative convenience
. Specialisation

43

Explain for following reason for a court hierarchy: doctrine of precedent

The doctrine of precedent means that decisions made in higher courts are binding on lower courts in the same hierarchy. The ratio decidendi (reason for the decision) in the higher court, part of the judgment given, establishes a precedent that is to be followed in the future.

This system provides consistency in that similar cases are treated in a similar manner. It also provides predictability. Solicitors are able to inform their clients of what the law is and what decision is likely to be made in a particular case. This system would not be possible without a hierarchy of courts because there would be no higher courts to make precedents for lower courts to follow.

44

Explain for following reason for a court hierarchy: appeals

Someone who is dissatisfied with a decision can, if there are grounds for appeal, take the matter to a higher court. This provides fairness and should allow any mistakes to be corrected.

If there were no higher courts in the court hierarchy, a system of appeals could not operate and this may create unfairness if cases were incorrectly determined by a court.

45

Explain for following reason for a court hierarchy: administrative convenience

The system of a court hierarchy allows for the distribution of cases according to their seriousness. The more serious and complex cases are heard in the higher courts. These cases take longer to hear and require judges who are expert in complicated points of law.

Minor cases can be heard quickly and less expensively in the lower courts. In this way delays are reduced in the lower courts, and the higher courts can more easily manage the allocation of time for the longer, more complicated cases.

Legal personnel are allocated to courts according to their level of expertise so that more- experienced personnel can deal with complex issues.

It could, however, be argued that every matter, small or large, is very important and serious to the parties involved and that the parties should therefore be entitled to the same expertise.

46

Explain for following reason for a court hierarchy: specialisation

Within the system of a hierarchy of courts, the courts have been able to develop their own areas of expertise. The lower courts are familiar with the smaller cases that need to be dealt with quickly and efficiently.

The higher courts develop expertise in hearing complex cases involving major crimes or large sums of money. Other specialist courts such as the Children’s Court and the Family Court have been developed to deal with specialised areas of law.

47

What are the problems with a court hierarchy?

,,....

48

What are the advantages of a court hierarchy (summary)?

. Allows the doctrine of precedent to operate, which creates consistency and predictability.
. Allows the operation of appeals to superior courts.
. Administrative convenience – more-serious and complex cases heard in higher courts by more- experienced judges.
. Specialisation – the courts are able to specialise in their particular area of law.
. Fewer delays are likely because less-complicated cases are heard in the lower courts and are not mixed in with the more complicated cases.

49

What are the disadvantages of a court hierarchy (summary)?

. A precedent from a higher court may be distinguished by a lower court, or a binding precedent from a higher court may not be appropriate to the circumstances before the lower court.
. It could be said that there are too many appeals.
. More administrative personnel needed to run the different courts.
. There are more courts – a single court would be easier for people to find, as all matters would be heard at the same place.
. Parties to cases in the lower courts are not receiving the same high level of judicial expertise as parties in higher courts.

50

Explain the magistrates court.

The magistrates court is the lowest court in the Victorian court hierarchy with its current jurisdiction set out in the Magistrates Court Act 1989 (Vic.).

There are currently 53 Magistrates' Courts sitting in Victoria and they are responsible for 90% of civil cases and 95% of criminal cases. The magistrates court can not hear appeals and does not have a jury present.

51

What does the magistrates court deal with?

. Summary offences
. Indictable offences heard summarily
. Committal proceedings
. Bail applications
. Issuing warrants

52

What does the magistrates court's criminal jurisdiction cover?

The court has original criminal jurisdiction over:
. Summary offences
. Indictable offences hard and determined summarily
. Committal proceedings
. Issuing warrants
. Bail applications

53

Explain the following thing covered by the magistrates court's criminal jurisdiction: summary offences

These are minor criminal offences eg. Traffic offences, drunk and disorderly, minor assault.

The maximum sentence that can be given by the Magistrates’ Court is two years for a single offence.

54

Explain the following thing covered by the magistrates court's criminal jurisdiction: indictable offences heard and determined summarily

These are more serious criminal offences which have the right to be tried before a judge and jury of 12 in either the County Court or Supreme Court. However, with the consent of the accused, some indictable offences can be heard summarily by a Magistrate.

The indictable offences that can be heard heard summarily are:
- Listed in schedule 2 of the Criminal Procedure Act 2009 (Vic.) and include drug offences, robbery, burglary and handling stolen goods.
- Punishable by a level 5 or 6 term of imprisonment or fine or both.
- Punishable by terms of imprisonment up to 10 years or a maximum fine of 1200 penalty units.

55

For an indictable offence to be heard summarily what three element must be satisfied?

- The prosecutor or the accused must apply to have the case dealt with summarily.
- The court must be satisfied that the matter is suitable to be determined summarily.
- the defendant must consent to deal with the matter summarily.

56

Explain the following thing covered by the magistrates court's criminal jurisdiction: committal proceedings

The more serious offences are prosecuted in the County Court and the Supreme Court depending on the nature and the seriousness of the offence.

However, before the case is brought to trial, committal proceedings are held in the magistrates court to determine if there is enough evidence against the accused to gain a conviction in a higher court.

That is, to establish a 'Prima Facie' case against the accused.

57

Explain the following thing covered by the magistrates court's criminal jurisdiction: issuing warrants

A warrant is a legal document used by the court to authorise a particular act such as search, seizure and arrest.

58

Explain the following thing covered by the magistrates court's criminal jurisdiction: bail applications

When an accused has been taken into custody and charged by the police, the Magistrates' Court has the power to hear bail applications. If the bail application is no successful, the magistrate will order that the offender be held in remand. If bail is granted, then the accused is released on conditions until the date of trial.

59

What does the magistrates' courts original civil jurisdiction cover?

. Up to $100,000 for all civil matters including personal injury, negligence, breach of contract.
. Although the family court is a Federal Court, the Magistrates' Court has the jurisdiction to operate as a family court in certain matters.
. Civil claims of less than $10,000 are sent to arbitration within the magistrates court.
. The Magistrates’ Court is also responsible for WorkCover and industrial claims.
. Heard by a single judge.

60

What is the appellate jurisdiction of the magistrates court?

The Magistrates' Court has no criminal or civil appellate jurisdiction, although rehearing so can occur in cases if one of the parties fails to appeal.

61

Why does the Magistrates' Court have specialist divisions?

The Magistrates’ Court has a number of special divisions whose purpose is to improve outcomes for the parties and the community.

Specialist courts tend to take a more individualised and service-focused approach to the sentencing of special needs groups. These are not separate courts, but are divisions of the Magistrates’ Court that provide specialist functions or processes.

62

What are the specialist divisions of the Magistrates' Court?

. The drug court*
. The Koori court*
. The family violence court
. Neighbourhood justice centre
. Assessment and referral court list
. Sexual offence list

* = courts you are remembering

63

Explain the following division of the magistrates court: the Koori court

The Koori Court is a division of the Magistrates’ Court, which was created under the Magistrates’ Court Act 1989 (Vic.). It was established to provide fair, equitable and culturally relevant justice services to the Indigenous community, as well as providing the Indigenous community with greater protection and participation in the sentencing process for summary offences.

The accused must be an Indigenous person and the offence must be within the jurisdiction of the Magistrates’ Court, other than sexual offences, family violence cases or a breach of an intervention order. The accused must plead guilty or intend to plead guilty, or consent to an adjournment to enable him or her to participate in a diversion program. The accused must show an intention to take responsibility for his or her actions and must consent to the matter being dealt with in the Koori Court Division.

The court must ensure that proceedings are informal and conducted in such a way that they can be understood by the accused, the accused’s family and any member of the Indigenous community who is present in court.

64

Explain the following division of the Magistrates court: the drug court

The Drug Court is a division of the Magistrates’ Court. It is responsible for sentencing and supervising the treatment or support of offenders who have drug problems, and have committed an offence while under the influence of drugs or to support a drug habit.

It deals with offenders who plead guilty to drug-related crimes that are within the jurisdiction of the Magistrates’ Court and punishable by imprisonment. The Drug Court will not deal with crimes that involve a sexual offence or an assault causing bodily harm.

The main aim of the Drug Court is to rehabilitate offenders from drug or alcohol addiction, and break the cycle of offending. An offender in the Drug Court can be sentenced to a drug treatment order (DTO), which can consist of a custodial part and a treatment and supervision part.

65

Explain the county court.

The County Court is an intermediate court that sits between the Magistrates' Court and the Supreme Court. It's is presided over by a judge, and a jury may be empaneled.

The County Court deals with a wide range of civil and criminal matters in its original jurisdiction. It also hears appeals from the Magistrates’ Court in criminal matters relating to convictions and severity of sentencing.

66

What is the structure of the County Court?

The court consists of a chief judge, judges, associate judges and the registrar of the court. A judge is addressed as ‘Your Honour’.

67

What is the original criminal jurisdiction of the County Court?

The County Court can hear most indictable offences such except for the most serious. The offences that cannot be heard by the County Court includes:
. Murder and attempted murder
. Certain conspiracy charges and corporate offences
. Treason.
Whilst the offence the can be heard by the County Court include:
. Drug trafficking
. Serious assaults
. Sex offences (such as rape).
The cases are heard by a judge and jury of 12.

The jury listens to the facts and decides whether the accused is guilty or not guilty. The judge instructs the jury on the relevant law, sums up the evidence to the jury, and sentences the accused if he or she has been found guilty.

68

What is the original civil jurisdiction of the County Court?

The County Court has unlimited jurisdiction to hear all civil matters, irrespective of the amount. A judge sitting alone hears civil cases in the County Court. A judge, the plaintiff or a defendant may request that a jury be empaneled.

If a jury is requested, it will be a jury of six (or up to eight for particularly long trials). The jury will decide on the facts, and will decide in favour of either the plaintiff or the defendant. If there is no jury, then the judge will decide on the facts and the outcome of the case.

69

More county court appellate stuff.

The accused can appeal against the severity of a penalty or against a conviction. If an appeal against a conviction is successful, the case is dismissed. If an appeal against a penalty is successful, the penalty may be reduced. If, however, the appeal against the penalty is not successful, the penalty may stay the same or be increased.
The Office of Public Prosecutions may also appeal against a sentence because of its leniency.

70

What is the criminal appellate jurisdiction of the County Court?

The County Court can hear appeals from the Magistrates' Court by offender against a conviction and/or sentence, bond or conditional discharge. Appeals are heard by a judge alone (no jury). The appeal operates as a rehearing (known as a de novo appeal), and the accused is not bound by the plea entered in the Magistrates’ Court.

71

What is the civil appellate jurisdiction of the County Court?

The County Court does not have the jurisdiction to hear appeals in civil matters except where an Act specifically provides for appeals to be heard in the County Court.

72

What are the specialist divisions of the County Court?

. The Koori Court
. The sexual offences list

73

Explain the following specialist division of the County Court: The Koori Court

The jurisdiction of the Koori Court includes sentencing for all offences dealt with in the criminal jurisdiction of the County Court except sexual offences and family violence cases, although some family violence cases are allowed.

To be eligible for the proceeding to be held in the Koori Court Division, the accused must be Aboriginal, plead guilty and take responsibility for his or her actions, and must consent to the proceedings being dealt with in the Koori Court. The offence must be within the jurisdiction of the County Court, other than a sexual offence or a family violence offence, and the Koori Court Division must consider that it is appropriate in all the circumstances that the proceeding be dealt with by it.

The County Koori Court also has the jurisdiction to hear an appeal against a sentence imposed by the Magistrates’ Court, whether or not it was heard in the Koori Division. It will be conducted as a rehearing.

74

Explain the following specialist division of the County Court: the sexual offences list

A Sexual Offences List of the County Court was established in 2005 to manage pre-trial hearings with respect to sexual offence cases. A sexual offence is defined as being any offence involving a sexual act or an attempt to commit a sexual act or an act alleged to be committed for the purpose of committing a sexual act.

Pre-trial management of directions hearings and committal hearings by a listing judge is undertaken with a view to identifying and defining issues early and resolving the issues where possible and appropriate. This is intended to ensure a more efficient trial process and be more responsive to the needs of all participants, including the victims of sexual offences.

75

Explain the Supreme Court.

The Supreme Court is the most superior court in the Victorian Court hierarchy and is made up of 2 divisions, being the Supreme Court Trial Division and the Supreme Court of Appeal.

76

What is the structure of the Supreme Court?

. Trial division
. Court of appeal

77

Describe the Supreme Court (Trial Division).

The Supreme Court (Trial Division) deals with the most serious matters as it is the most superior in the Victorian Court hierarchy. This means it has wide powers in its original jurisdiction as well as extensive appellate jurisdiction in both criminal and civil matters. It is made up of 2 divisions, being the Trial Division and the Court of Appeal.

The Trial Division is divided into the Criminal Division, the Common Law Division and the Commercial and Equity Division. The Common Law Division and the Commercial and Equity Division deal with civil matters, whereas the Criminal Division deals with criminal cases.

The court consists of the chief justice, judges, associate judges and registrars. A judge is addressed as ‘Your Honour’ and has the title of ‘Justice’. The chief justice of the Supreme Court is the state’s most senior judge.

78

What is the original criminal jurisdiction of the Supreme Court (Trial Division)?

The Supreme Court (Trial Division) hears the most serious criminal cases, such as murder, attempted murder, manslaughter, treason and some conspiracy offences.

All criminal cases in which the accused is pleading not guilty are heard before a judge and a jury of 12 (additional jurors can be empanelled for longer trials). If the accused is pleading guilty, no jury is empanelled.

79

What is the original civil jurisdiction of the Supreme Court (Trial Division)?

The Supreme Court has unlimited civil jurisdiction and can hear civil cases claiming any amount. A civil case is heard before a judge alone or, if the parties agree, before a judge and a jury of six.

The Supreme Court refers some civil cases to mediation so that they can be dealt with quickly, informally and cheaply. A jury of six is optional (up to eight can be empanelled).

Due to the County Court and the Supreme Court both having unlimited civil jurisdictions, it is up to the parties to decide in which court to lodge their paperwork to commence legal proceedings (Supreme court is more expensive though).

80

What is the appellate criminal jurisdiction of the Supreme Court (Trial Division)?

In criminal cases, a single judge of the Supreme Court can hear appeals from the Magistrates’ Court on a point of law. If the appeal is not initiated within 28 days, the person wishing to appeal must apply for leave to appeal.

If the judge decides that the magistrate’s decision should stand, the appeal is dismissed. If the judge agrees that there has been an error in law and the magistrate’s decision should be quashed (overturned) then the appeal is allowed.

If a person appeals on a point of law to the Supreme Court from the Magistrates’ Court, they are then unable to appeal on other grounds to the County Court.

81

What is the appellate civil jurisdiction of the Supreme Court (Trial Division)?

In civil cases, a single judge in the Supreme Court can hear appeals from the Magistrates’ Court on a point of law.

A single judge can also hear appeals from the Victorian Civil and Administrative Tribunal (although when the tribunal is constituted for the purpose of an order being made by the president or the vice-president, an appeal from such an order would go to the Court of Appeal).
Appeals from the Supreme Court (Trial Division)

82

Describe the Supreme Court (Court of Appeal).

The Supreme Court of Appeal does not have any original jurisdiction in either criminal or civil matters. The Supreme Court of Appeal has extensive appellate jurisdiction.

The Court of Appeal hears:
• all appeals from the Supreme Court Trial Division constituted by a single judge
• all applications for new trials
• all appeals from the County Court constituted by a judge
• all appeals from the Victorian Civil and Administrative Tribunal when the tribunal was constituted
for the purpose of making an order by the president or a vice-president of that tribunal
• all appeals where a particular Act states that the appeal must be heard before the Court of Appeal

83

What is the structure of the Supreme Court (Court of Appeal)?

The Court of Appeal consists of nine permanent judges, a president and the chief justice of the Supreme Court. The chief justice of the Supreme Court is the state’s most senior judge. The court usually sits with three judges but can have five judges if the matter before it is of ‘significant importance’.

84

What is the original criminal and civil jurisdiction of the Supreme Court (court of appeal)?

No original jurisdiction.

85

What is the appellate criminal jurisdiction of the Supreme Court (Court of Appeal)?

The Supreme Court of Appeal hears appeals from the County Court and the Trial Division against:
. Conviction
. Point of law
. Severity and Leniency of sentence.

The Office of Public Prosecutions may only appeal against the leniency of the sentence, not against an acquittal.

86

What is the appellate civil jurisdiction of the Supreme Court (Court of Appeal)?

The Court of Appeal hears appeals in its civil jurisdiction from the County Court and from a single judge of the Supreme Court. It also hears appeals from the Victorian Civil and Administrative Tribunal when the tribunal has been constituted for the purpose of an order being made by the president or a vice-president.
The grounds for appeal in a civil matter include:
• a point of law
• a question of fact
• the amount of damages.
Appeals are heard by a panel of 3 judges.

87

Case transfers

While courts tend to hear mainly the cases within their jurisdictions stated above, it is possible for cases to be transferred between the Magistrates’ Court, County Court and Supreme Court on the decision of the chief justice of the Supreme Court.

This may be done due to the seriousness or complexity of the case, or to spread the workload. For example, the chief justice has directed some sex crime cases and serious drug matters to be heard by the Supreme Court to ‘show judicial leadership in these difficult types of cases’.

88

What may the court do with an appeal?

The court may:
• dismiss an appeal
• allow an appeal
• quash the sentence passed at trial and impose a new sentence, which may be longer or shorter
than the original sentence – a sentence cannot be increased because of evidence received by the
Court of Appeal that was not given at the trial
• order a new trial.

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What are the grounds for an appeal against a conviction?

. The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.
. The result of an error or irregularity in the trial causes a substantial miscarriage of justice.
. For any other reason there has been a substantial miscarriage of justice.

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296 to 297

In criminal cases, a person convicted of an offence by the Magistrates’ Court can appeal to the County Court against a conviction and/or the severity of a sentence.