Unit 4 AOS2a

Question 1

Entitlement to a fair and unbiased hearing

Answer 1

Fairness and justice are important concepts in our society. An effective legal system provides structures and procedures that facilitate a fair hearing or trial, free from bias. People should not be discriminated against when appearing before dispute resolution bodies, and should have an equal opportunity to present their case.

Question 2

Role of the Judge

Answer 2

All trials are presided over by an independent and impartial adjudicator (judge or magistrate). Their role is to ensure that both parties are treated consistently and have an equal opportunity to present their case to the court, thereby ensuring a fair and unbiased hearing. They ensure that each party adheres to the strict rules of evidence and procedure when presenting their case. Judge remains independent and does not assist any party in the preparation or presentation of their case.

Question 3

Limitation on the role of the Judge

Answer 3

It is argued that the judge’s expertise and experience is not used well as they are not permitted to assist disadvantaged parties to allow for an equal playing field and thereby a fair hearing, cannot call or question witnesses nor be involved in the determination of the verdict when a jury is present. A magistrate or judge may have personal biases; in theory, this should not affect the outcome of the case because they are trained to disregard any personal biases. Furthermore, the judge cannot assist unrepresented parties to help provide a level playing field.

Question 4

Strict rules of evidence and procedure

Answer 4

Strict rules of evidence and procedure govern the trial and aim to ensure the parties receive a fair and unbiased hearing. These rules must be followed by parties when they present only their relevant, reliable and legally obtained evidence to the court. Evidence not obtained in accordance with the law is inadmissible. In criminal trials, previous convictions relating to the past criminal record of the accused are generally inadmissible.

Question 5

Limitation on strict rules of evidence

Answer 5

Vital evidence may be inadmissible. Weakness is that these rules necessitate the use of legal representatives, which disadvantages those unable to afford quality legal counsel. Heavy reliance on verbal evidence can impede a trial in cases where witnesses give the wrong impression to the judge and jury due to anxiety, low confidence, poor English and comprehension skills.

Question 6

Role of the Parties

Answer 6

Parties are responsible for, and are in control of, the preparation and presentation of their own case. Including; Investigating the law, gathering relevant evidence, determining how to present evidence to the court. Parties are empowered to seek the best evidence and present their strongest arguments. This independence allows the parties a fair hearing as they can choose which evidence and facts to lead.

Question 7

Limitation on role of the parties

Answer 7

Parties may also deliberately omit vital evidence that may impede the discovery of truth and lead to incorrect verdicts. Party control can also cause delays and stress on the parties.

Question 8

The need for legal representation

Answer 8

Parties to a case are entitled to engage legal representatives to provide legal advice and to ensure that the case is presented well in court. The strict rules of evidence and procedure and the formality of the trial process necessitates the use of legal representatives. In order for the adversary system to be effective, both parties need to be equally represented in court.

Question 9

Limitations on the need for legal representation

Answer 9

Legal representation is expensive and not all parties can afford it. There can also be a imbalance of quality of legal representation which can result in an unfair hearing. Justice may belong to the person who can afford the better legal representation.

Question 10

Burden and Standard of Proof

Answer 10

The burden of proof rests with the party who initiates the proceedings. This ensures fairness, as the party making the allegations must provide sufficient evidence to prove their case.In a criminal trial, having the prosecution responsible for proving the guilt of the accused also upholds the right of the accused to a presumption of innocence. In a criminal trial, the high standard of proof required to find an accused guilty helps ensure certainty in the verdict and lessens the chance of an innocent person being convicted.

Question 11

Role of the Parties in the Inquisitorial System

Answer 11

The role of the parties In the inquisitorial system is much more passive and responsive rather than active, decisive and in control. Due to the extensive role of the judge the parties have much less control in the inquisitorial system. They are primarily there to assist the judge and to answer questions Even in civil cases, where they collect evidence and prepare arguments, they have no control over what will be presented at trial. Based on the dossier of evidence and arguments collected by the parties, the judge will determine what evidence to use, what questions to ask and what arguments should be made at trial.

Question 12

Role of the Judge in the Inquisitorial System

Answer 12

The judge plays a much more active role under the inquisitorial system, taking control over the direction and presentation of the case. An ‘investigating magistrate’ will undertake the investigation into criminal cases, gathering evidence and questioning witnesses. The file will then be passed on to the trial judge, who will use it to conduct the trial. In civil trial the parties submit their cases and evidence to the judge pre-trial, who will direct them on what witnesses to call and what arguments to make. The judiciary here is in control of the investigation of facts and evidence - it is, after all, important they remain impartial.

Question 13

Standard and Burden of Proof in the Inquisitorial System

Answer 13

The standard and burden of proof are both more flexible in the inquisitorial system. There is still a presumption of innocence - the defendant is not presumed guilty, because it would be unreasonable to punish people until they could prove total innocence. However, both sides (prosecution and defence or plaintiff and defence) will be examined simultaneously, so the burden is not as heavy on the prosecution/plaintiff to prove their case before the defence need say anything There is still a standard of proof, however it is more flexible and the focus of it is different. Instead of the prosecution/plaintiff presenting evidence up to a fixed standard, the standard is when the judge, judges or jury believes the truth has been found.

Question 14

Need for Legal Representation in the Inquisitorial System

Answer 14

Legal representation is often legally required in the inquisitorial system, but the legal representatives exercise less control over the trial and their duty is to the court rather than to their client.

Note: In the adversary system the duty legally is still to the court, however there is a powerful drive to act to protect the client’s interest).

Since the parties have less control, the judge takes a more active role and the rules of evidence and procedure are more flexible, legal representation plays a less vital role in the inquisitorial system. Instead of running the case for the parties, the lawyer will support the parties through the process, prepare them for being questioned by the judge, make requests of the judge to ask their own questions of witnesses, and generally assist the judge in uncovering evidence and relevant legal arguments.

Question 15

Greater investigative role for the judge or magistrate

Answer 15

A possible reform is providing the judge with more power to conduct the questioning of witnesses and participate in decisions over how the trial will be run - this could improve the adversary system. Ways in which the judge could exercise this addition control include:

• Calling independent expert witnesses instead of each party calling its own expert witnesses.
• Reviewing written summary of legal arguments before trial and directing parties on which arguments to make in court; preventing irrelevant arguments being made.

Question 16

Advantages of greater investigative role for the judge or magistrate

Answer 16

The judge would be able to use their experience and legal knowledge to the fullest. Unrepresented or inadequately represented parties would not be as heavily disadvantaged as the judge would be able to full in some of the gaps left or advise them on how to present their case more effectively.

Question 17

Disadvantages of greater investigative role for the judge or magistrate

Answer 17

The judge may find it difficult to truly remain impartial if they are also able to make decisions about the running of the case. They may decide on their personal opinion of the case before it has finished. The judge may assist one party more than the other, accidentally creating an unfair playing field.

Question 18

Greater use of written evidence

Answer 18

Hearings could be conducted mainly on the strength of written evidence unless a witness was particularly important or contentious and needed to be questioned in person. Specific ways in which this could be done include:

• Experts providing written summaries of their analysis rather than explaining it orally in court.
• Legal representation giving the judge their legal arguments in written form so that the judge can read them in chambers. Jury do not play a role in legal arguments.

Question 19

Advantages of greater use of written evidence

Answer 19

Witnesses would be spared the time and stress of having to give evidence orally in court. It is a stressful experience, and many have trouble expressing themselves dearly. A great deal of time could be spared in court. Oral evidence takes much longer, and is often harder for the jury to remember than reading over a written statement and keeping it for reference.

Question 20

Disadvantages of greater use of written evidence

Answer 20

The judge, jury and opposing party would not get the opportunity to read the body language and demeanor of the witness. This is important when deciding how trustworthy they are. Time should not be saved at the expense of a thorough examination of evidence. The trade-off is too great.

Question 21

Imprisonment

Answer 21

Imprisonment is when an offender is detained in custody in a jail or prison for a certain period time. They lose their liberty and freedoms.

Question 22

Aims achieved through imprisonment

Answer 22

The main purpose of imprisonment it to impose a just punishment and protect the community by restricting the offender’s freedom and liberty by removing them from the community, and are therefore no longer in a position to harm members of society. It also aims to denounce the offenders conduct by showing society that the behaviour of the offender is unacceptable and deserving of punishment.

Question 23

Aims not achieved through imprisonment

Answer 23

Imprisonment however offers little chance for rehabilitation particularly with indefinite life sentences and the high chance of reoffending. In addition, imprisonment does not achieve deterrence as of 30 June 2010, over half the prison population in Australia had been in prison before. This suggests imprisonment does not achieve specific deterrence.

Question 24

Community Corrections Orders

Answer 24

A community corrections order is a flexible order that allows an offender to serve your sentence in the community. These court orders have at least one condition attached. These conditions differ according to the kind of offence you have been found guilty of and your particular circumstances. Strict penalties are imposed for breaches of orders.

Question 25

Aims achieved through CCO's

Answer 25

The main purpose of CCO's is to provide a just punishment and rehabilitate the offender by addressing the particular cause of the offending, such as drug and alcohol abuse. CCO's also offers rehabilitation. The judge is able to select conditions to the offender's circumstances and crime, with the aim of integrating them back into society successfully. It also aims to punish the offender. Conditions attached may include restrictions on movement and unpaid community work.

Question 26

Aims not achieved through CCO's

Answer 26

However, this sanction does not fully satisfy the protection of the community as there is no complete guarantee that the offender will not re-offend whilst in the community and there are less restrictions on movement than imprisonment.

Question 27

Fine

Answer 27

Fines are monetary penalties where the offender pays a sum of money to the court fund. Fees a calculated on penalty units, with one penalty unity being equal to $151.67.

Question 28

Aims achieved through fines

Answer 28

Fines aim to achieve deterrence, the public can see, if they commit the same crime, they will have to give up their money. This sanction is particularly effective for people with less disposable income. Fines also punish the offender. The offender suffers hardship by having to given money and receive nothing in return.

Question 29

Aims not achieved through fines

Answer 29

Fines do not protect the community. The offender isn't in any way removed from society or prevented from doing the harmful behaviour - as long as they can pay the fine for it. It also does not rehabilitate as there are no conditions attached to a fine that can offer rehabilitation.

Question 30

Bail

Answer 30

Is when the accused is released from custody after being charged on condition that they appear in court at a later date. A person charged with an offence has the right to apply to be released on bail until their trial. If bail is refused, then they will be held on remand (in jail awaiting trial).

Question 31

Purpose of Bail

Answer 31

The Bail Act 1977 (Vic.) lays down the major rules relating to the granting of bail. The main aim of granting bail is to allow an accused person to go free until the hearing or trial, as a person is presumed innocent until proven guilty. Granting bail also allows the accused person time out of custody to prepare their case.

Question 32

Factors taken into account when granting bail

Answer 32

The Magistrate will taken into account the following: * the seriousness of the offence for example if the accused is charge with murder or drug trafficking bail will be deined (although bail is given in some exceptional circumstances) * already in custody for another crime * considered to pose an unacceptable risk to society or is likely to: * abscond * commit an offence while on bail * endanger the safety or welfare of members of the public * interfere with witnesses or otherwise obstruct the course of justice in relation to themselves or to others.

Question 33

Conditions of bail

Answer 33

Before a person is granted bail they may be asked to: * provide their own undertaking that they will appear in court on a later date, without the imposition of any other conditions: * provide their own undertaking that they will appear in court, with the imposition of conditions, such as reporting to a police station, residing at a particular address, submitting to a curfew, that the accused not contact specified persons or classes of persons * provide a surety who will guarantee that they will attend court, with or without the imposition of conditions. Money deposited with the court by the accused, or a surety, will be forfeited if the accused does not attend court, although there may be circumstances when this forfeiture can be opposed.

Question 34

Advantages of Bail

Answer 34

Bail upholds the presumption of innocence - it protects human rights by not punishing someone before they have been found guilty. Bail also allows the defendant to prepare adequately for their case and earn money in the months/years before trial.

Question 35

Disadvantages of Bail

Answer 35

Whenever the defendant is held on remand their basic human right to the presumption of innocence is being denied. Holding a defendant on remand jeopardizes their right to a fair trial, as they are much less able to prepare for court and cannot earn money.

Question 36

Remand

Answer 36

Someone who is refused bail will be held on remand until the case comes to trial, or until bail is granted in the future. This means they are held in custody.

Question 37

Purpose of Remand

Answer 37

The purpose of remand is to protect the community against the actions of an accused person. The community is protected as the accused is prevented from re offending, inflicting harm or committing any further offences while awaiting trial. The purpose of remand is also to ensure the court that the accused will appear at the next hearing (whether it be a hearing as part of the committal process or the trial) so that the accused is tried for the offences with which he or she has been charged. Remand also prevents an accused from interfering with witnesses or obstructing the course of justice. This will ensure a fair hearing by allowing witnesses the freedom to tell their story.

Question 38

Main Purpose of a Committal Hearing

Answer 38

In both types of hearing the magistrate Is asked to determine if a prima facie case exists this means, whether a strong enough case against the accused exists at first glance. This means the magistrate believes there is enough evidence to support a conviction in a jury trial. If a prima facie cases does not exist, the magistrate will dismiss the case because it is likely to be a waste of time and resources.

Question 39

Other purposes of a Committal Hearing

Answer 39

* ensure a fair trial (if the matter proceeds to trial), for instance by ensuring that the prosecution's case against the accused is adequately disclosed, enabling the accused to hear or read evidence and cross-examine prosecution witnesses, put forward a case at an early stage if the accused wishes to do so, and adequately prepare and present a case * clarify the issues before attending trial and thereby avoid taking a matter to trial when the evidence is flimsy, saving the time and resources of higher courts * determine how the accused proposes to plead to the charge or charges.

Question 40

Process of Committal Hearing

Answer 40

The defence will not present any of their evidence, or disclose any of their witnesses. The committal hearing is purely for the prosecution to show their hand, prove that a trial is justified, and allow the defendant to prepare adequately for trial The prosecution will outline the number of witnesses they plan to call and the expected length of trial. This allows the court to better schedule the trial The accused will be given a chance to enter a guilty plea or once they have seen the strength of the prosecution's case.

Question 41

Advantages of a Committal Hearing

Answer 41

The hearing protects the defendant's right to be presumed innocent, by forcing the prosecution to prove they have sufficient evidence to justify trial. The hearing enables the defendant to prepare properly for trial by allowing them to see the evidence against them. This levels the playing field a little - which is necessary, as it is one individual against the state. The hearing weeds out weak cases and stops them clogging up the courts; it prevents time, money and resources being wasted, and also allows other, stronger, cases to be heard more quickly. The hearing may encourage a guilty defendant to take responsibility for their actions and plead guilty if they see that the prosecution has strong evidence against them. This also saves time and money.

Question 42

Disadvantages of a Committal Hearing

Answer 42

The committal does not promote a fair and unbiased hearing as the defendant does not need to show any of their evidence: they therefore receive an advantage. * The defendant has the opportunity to take the prosecution by surprise at trial, while at the same time planning responses to prosecution evidence instead of responding honestly on the spot. * The DPP has the power to override the magistrate's findings, and push a case to trial even if the magistrate dismisses it at the committal. This undermines the role, authority and independence of the magistrate and the committal. * The DPP will sometimes choose a direct indictment {such as with the Melbourne gangland cases 2004), which denies the defendant the right to contest whether a trial is justified.