INTRODUCTION TO UNIT 4 ESSENTIAL KNOWLEDGE CRIMINAL DISPUTES

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1 INTRODUCTION TO UNIT 4 ESSENTIAL KNOWLEDGE The focus of Unit 4 is on the way in which criminal cases and civil disputes are resolved through the Victorian legal system. Consideration is given to the dispute resolution bodies, and the processes and procedures that operate within them. You are also expected to evaluate the effectiveness of these processes and procedures. QUESTION 1 The distinction between criminal and civil law: There are basically two types of disputes within our legal system: 1. and 2. It is important that you know the difference between them. Make sure you make note of: Definitions, Key words, Comparisons. DISPUTES Are concerned with the suppression of behaviour that disturbs the peace and well being of the community. A crime is an offence against the community that is prosecuted and punished by the State. Such offences are usually associated with conduct that is of an antisocial nature. The protection of the public is the paramount justification for prohibiting such activity. Criminal cases concern breaches of the criminal law, from jaywalking, careless driving, stalking to assault, burglary, murder and treason. The government prosecutes the offender for allegedly breaking the law. QUESTION 2 List three other examples of criminal disputes: 1. _ 2. _ 3. _ The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 6

2 DISPUTES Civil matters involve disputes between people or between individuals and the government where the issue boils down to property, money, compensation or permission to do something. Disagreements over contracts, employment, custody, maintenance, adoption, negligence, defective products, motor vehicle accidents, defamation, the environment and breach of copyright are all examples of civil disputes. Generally any legal dispute that does not involve a crime would be classified under civil law. QUESTION 3 List three other examples of civil disputes: Note: Many disputes involve both criminal and civil law, for example, assault can be a civil wrong, for which you can sue for damages, and a criminal offence which the police may decide to prosecute, seeking the imposition of a fine or jail sentence for the offender. This also applies to public nuisance, some trespass, negligence and car accidents causing injury. When Harry met Sally in a car accident, Harry was drunk and had been speeding. Sally suffered serious injury. 1. The police charged Harry with dangerous driving. In R v. Harry, the state prosecuted Harry. He was found guilty. The court disqualified him from driving and also fined him. 2. Sally took Harry to court on the grounds of negligence. In Sally v. Harry, Sally sued Harry. He was found liable. The court ordered him to pay damages. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 7

3 THE DISTINCTION/COMPARISONS BETWEEN AND LAW Involves offences against the state, for example, theft, assault, tax avoidance, murder, etc. Action is normally initiated by the police via investigation and collection of evidence, interrogation of suspects and formally charging the accused. (Private prosecutions by the victim are possible but are uncommon). The prosecution takes the accused to court and prosecutes, For Example: R v Smith. A preliminary hearing (or committal hearing) is held in order to decide whether there is a case to answer for a serious matter to go to trial (called indictable offences). The parties can be required to attend a directions hearing** prior to commencement of trial. **The first Court hearing when the Judge/Magistrates will decide on the timetable for the case, perhaps order that a welfare report is carried out. A criminal trial aims to: 1. Establish the guilt or innocence of the accused. 2. To punish the wrong doer. 3. To deter, reform, rehabilitate. Standard of proof: The "standard of proof" is a legal concept. It is the level of proof that must be met by the person who has the onus. Guilt must be established beyond reasonable doubt. Degree of proof required. In criminal cases, prosecutors must prove a defendant's guilt "beyond a reasonable doubt. This is proof that leaves you with an abiding conviction that the charge is true. Burden of proof normally rests with the Prosecution (the burden of proof can shift to the defendant, for example. if self defence or insanity is being used as a defence). There will be a jury of 12. A jury is only used for indictable offences heard in the County or Supreme Courts and only if the accused pleads, not guilty (up to 15 in lengthy cases). Involves wrongs against individuals rights have been infringed. For Example: Torts. Action is initiated by the person who has suffered an alleged wrong - the plaintiff (called a complainant in the Magistrates' court) by issuing a legal document called a Writ of Summons which is delivered to the defendant. The defendant must respond by entering an Appearance. The plaintiff/complainant and defendant are the civil litigants. For example, Donoghue v. Stevenson. No preliminary hearing. Before a trial, a number of legal documents are exchanged, such as, Statement of Claim and Statement of Defence, Exchange of Documents and Interrogatories. Parties are usually required to attend a pre-trial conference or directions hearing. A civil trial aims to: 1. To decide whether or not the defendant is liable for the loss or injury by the plaintiff. 2. Compensate the injured party. 3. To enforce rights. Standard of proof: Liability must be established On the balance of probabilities. this means that once both sides have presented their evidence the Judge will find for the party who, on the whole, has a stronger case Burden of proof normally rests with the plaintiff (the burden can shift to the defendant for example, if contributory negligence is being claimed). A jury of 6 will be used, only if requested, and only in the County or Supreme Courts (up to 8 in lengthy cases). The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 8

4 A jury must come to a unanimous verdict in murder trials and cases involving Commonwealth Law. In other cases an 11-1 majority is sufficient in Victoria. If no verdict, then hung jury. A 5/6 majority is sufficient if a unanimous verdict cannot be achieved. Possible decisions: 1. Guilty. 2. Not guilty. 3. A 'no-decision' could occur in a jury trial. Where there is a 'hung jury', a re-trial will take place using a new jury. Possible outcomes: If guilty pass sentence and determine sanction such as: Imprisonment, Youth Training Centre, fine, adjournment, community based order, etc. Possible decisions: 1. Find for the plaintiff, that is, defendant liable. 2. Find for the defendant counter claim. 3. A 'hung jury' is possible but very rare occurs judge will direct parties to negotiate. Possible outcomes: If liable determine the remedy or remedies: Damages, Injunction and Specific Performance. EXAMPLE 1 (2008 VCAA Exam, Question 7a) James and his friends were celebrating James 35th birthday at a local restaurant. At the end of the night, James decided that he may have had too much to drink and called a taxi. On the way out, James tripped on some worn carpet and fell to the floor, causing him a serious injury. After consulting his lawyer, James decides to sue the restaurant for compensation. Identify which party has the burden of proof in this case. Assessor s Comments: (1 mark) Some students did not know that the plaintiff, or the person making the complaint (James in this scenario), is the one who carries the burden of proof. Some students used the language of criminal procedure and said that the prosecution has the burden of proof, which is not true in a civil matter. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 9

5 QUESTION 4 Explain the major differences between criminal disputes and civil disputes under these headings: Type of conduct being dealt with: Title of parties who initiate the dispute: Title of parties who lead the trial: Pre-trial procedures: Standard of proof: Use of jury: Trial decision: Outcomes: The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 10

6 You must be able to explain what is meant by each of these elements: 1. Entitlement to a Fair and Unbiased Hearing or Trial. An element of an effective legal system is the entitlement to a fair and unbiased hearing or trial. This means that the parties would have the right to equal treatment in relation to the presentation of evidence and the opportunities to present their case before an impartial arbitrator. For this element to be satisfied parties would be entitled to equal treatment during police investigations and consistency in sentencing in criminal matters. The judiciary must be seen as being totally independent, judging cases on the present circumstances only and not being influenced by irrelevant factors. 2. Access to Mechanisms for the Resolution of Disputes. Another element necessary for the legal system to operate effectively is access to mechanisms for the resolution of disputes. The legal system cannot merely set out rights and obligations; it must also provide ways in which disputes can be settled. The legal system attempts to do this by providing cheaper alternatives to court action in mediation or tribunals, a system of appeals and pre-trial procedures such as committals that ensure that only those with sufficient evidence against them go to court in serious criminal matters. 3. Timely Resolution of Disputes. If the legal system is to be effective it must provide the timely resolution of disputes as justice delayed is justice denied. Accordingly, unacceptable delays in bringing cases to trial, thereby denying a just resolution, must be reduced or eliminated. The introduction of tribunals and alternative forms of dispute resolution have assisted in reducing delays by enabling parties to resolve their disputes without using the traditional court system which is time consuming. QUESTION 5 For each of the above elements explain three additional ways in which the legal system strives to be effective. 1. Three ways in which the legal system strives to a fair and unbiased trial or hearing: 2. Three ways in which the legal system provides access to mechanisms for resolving disputes: The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 11

7 3. Three ways in which the legal system strives to provide for timely resolution of disputes: UNIT 4 DISPUTE RESOLUTION METHODS AREA OF STUDY 1 DOT POINT 1 REASONS FOR THE EXISTENCE OF A HIERARCHY OF COURTS As society has become more complex, there is an increasing need to provide efficient dispute resolution processes, with specialists employed to handle particular cases. The court hierarchy caters for such needs. PROVIDES FOR A SYSTEM OF APPEALS One of the key elements for assessing the effectiveness of the legal system involves the provision of accessible appeals processes. For example, there is a right of appeal from the County and Supreme Courts to the Court of Appeal on all matters except a jury finding of not guilty in a criminal case. The grounds for such appeals are many, with the most common involving claims that the remedy or punishment imposed did not reflect the nature of the evidence presented in the trial. Unless individuals have access to appeal processes there may arise a higher incidence of injustice, where dissatisfied parties have no recourse to high authority as a result of an unreasonable decision in a lower court. Also appeal cases are essential in order to rectify erroneous decisions in lower courts and to allow for the ongoing development of the common law. Appeal courts provide written judgements or reasons for their decisions and so this promotes coherency with the legal system. By ensuring binding precedent is followed the appeals system promotes consistency and fairness. However, appeals are costly and this may deny access to ordinary litigants. DOCTRINE OF PRECEDENT One reason for the existence of a court hierarchy is the application of the doctrine of Precedent, meaning that lower courts must follow decisions made by higher courts in the same hierarchy. This is known as the principle of stare decisis which binds lower courts, therefore the courts must be organised in a hierarchy of importance. For example, a decision of the Higher Court is binding on all State courts throughout the country. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 12

8 SPECIALISATION With courts assigned particular cases, specialist personnel can be employed to deal with the legal and factual issues which arise. Examples: Family Law Court Magistrates Court Children s Court ADMINISTRATIVE CONVENIENCE Granting of specific jurisdictions to each court enables the more experienced personnel (including judges and barristers) to be utilised by the superior courts. Relatively minor matters, such as, traffic offences can be dealt with quickly and inexpensively by the Magistrates Court. Crimes can be classified according to their severity, as wither summary offences or indictable offences. QUESTION 6 Define the following terms: Summary Offences Indictable offences Indictable offences heard summarily The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 13

9 DOT POINT 2 THE VICTORIAN HIERARCHY OF COURTS Magistrates Court County Court Criminal Summary offences and Indictable offences tried summarily, for example, property offences under a value of $25,000. Committal proceedings remand or bail. Issue of warrants. Koori Magistrates Court - sentencing of indigenous defendants who have pleaded guilty. Provides relevant justice to indigenous community. Drug Court Division - offenders who plead guilty to drug related crime. Emphasis is on rehabilitation Family Violence Division matters arising from situations of family violence. Emphasis on making offender change their behavior Neighbourhood Justice Centre multi jurisdictional court using a restorative approach. Most indictable offences, for example; rape, serious drug offences and armed robbery. Exceptions murder, treason and murder related offences. Civil Minor civil claims up to $100,000. Work Cover claims. Matters up to $10,000 referred to compulsory arbitration. PORTALS Pre-Trial Conference Mediation. Family Law interim orders involving relating to custody, maintenance and guardianship. Granting permission for minors to marry. Unlimited for personal and non personal injury claims; **The Court no longer has a jurisdictional monetary limit** County Court Appellate Jurisdiction From Magistrates Court on grounds of a question of fact (conviction) or sentencing order. Limited jurisdiction to hear civil appeals except where specified by an act, for example, Work Cover. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 14

10 Supreme Court of Victoria (trial division) Trials for the most serious indictable offences: Murder & treason & murder related crimes, such as, attempted murder and manslaughter. Hears claims for unlimited amounts for non-personal injury claims over $200,000. Jury of 6 may be used if requested by one of the parties (optional). Hears appeals in all cases on a point of law from the Magistrates Court and from some divisions of VCAT. Supreme Court of Victoria (appellate division) A single judge of the Supreme Court hears appeals on criminal matters from the Magistrates Court but only on points of law. A single judge of the Supreme Court hears appeals on civil matters from the Magistrates Court but only on points of law. A single judge can also hear appeals from VCAT except when the order is made by the President or Vice-President. Court of Appeal Hears criminal and civil appeals in all cases from a single judge of the County and Supreme Courts. All appeals from VCAT when the tribunal was constituted for the purpose of making an order by the President or Vice- President. The court usually sits with three judges but can have five if the matter before it is of significant importance. Appeals from the Court of Appeal are heard by the Full Court of the High Court. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 15

11 EXAMPLE 2 (2008 VCAA Exam, Question 2b) David has just lost his civil action in the County Court. He has had difficulty reading his judgment, and does not understand why the judge has interpreted a Victorian Act of Parliament. David wants to appeal the outcome of his case. In which court would the appeal be heard? Solution Appeal division of the Supreme Court of Victoria (the Court of Appeal). Assessor s Comments: (1 mark) Unfortunately many students are not familiar with the jurisdictions of the courts prescribed in the study design and were therefore not able to provide the correct answer. Court of Appeal was also acceptable. A student received no marks if they gave two courts, for example, The Supreme Court or the Court of Appeal. EXAMPLE 3 (2010 VCAA Exam, question 2a) Carl has been found guilty of culpable driving and sentenced to 150 hours of community service. (a) In which court is it most likely that this case would have been heard? (1 mark) Assessors report: Culpable driving is an indictable offence and is within the jurisdiction of the County Court. It cannot be heard summarily and therefore cannot be heard by the Magistrates Court (which can hear other driving offences). Some students who may have studied the R v Towle culpable driving case wrote the Supreme Court (which did hear the culpable driving offence in that instance). The County Court was the most likely court that would have heard Carl s case. By reason of this all three courts were accepted as answers. EXAMPLE 4 (2007 VCAA Exam, Question 6) Bruce, aged 18, has been charged with breaking into a house and stealing a plasma television. He has decided to plead not guilty to the charge and have it heard in the Magistrates. Court. His friend, Danni, tells him that. Bruce could have this case tried in another court if he wanted to; and. If Bruce is convicted in the Magistrates Court, there is more than one possible appeal available to him. Do you agree with Danni s advice? Give reasons for your answer. Assessor s Comments: (3 marks Average 0.8) Many students struggled with this question and many did not seem to have taken the time to read carefully and understand the instructions. In this question students were given a scenario and asked if they agreed with the advice that had been given. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 16

12 One piece of advice was that the case could be tried in another court if the person charged (Bruce) wanted to. Bruce had decided to have his case heard in the Magistrate s Court; however, because he committed a burglary, which is an indictable offence triable summarily (Schedule 4 of the Magistrates Court Act 1989 lists the indictable offences that can be heard by the Magistrates Court), he can choose to have his case heard by a judge and jury in the County Court. Therefore the advice Bruce was given is correct, he could have chosen not to have his case heard in the Magistrates Court and instead gone to the County Court. Although Bruce s age was given as 18 there is no choice available to have his matter heard in the Children s Court. The Children s Court does not offer any options to juvenile defendants about where their trials will be heard. If Bruce had been eligible to have his matter heard in the Children s Court it would have been heard there, and Bruce would have no choice. The other piece of advice that Bruce was given was that there is more than one possible appeal available to him if he was convicted in the Magistrates Court. This advice was also correct because from the Magistrates Court there are two avenues of appeal one to the County Court on conviction or sentence and one to the Supreme Court on a point of law. In the court system in Australia there are federal courts (those established by the federal parliament) and a court system in each state. The highest court in Australia is the High Court that has jurisdiction over all courts as it is the final court of appeal for both federal and state matters. VICTORIAN COURTS These courts have been established by legislation in the State parliament. Each has its own functions and jurisdictions. Magistrates court. Points to note: Original jurisdiction only Appeals heard in a higher court. A Magistrate decides on guilt or innocence in a criminal case with a fine or imprisonment or other penalty for guilty. Maximum penalties include prison for 10 years of fine $120,000. A Magistrate decides whether a civil wrong has occurred and compensation (monetary damages) is awarded to those whose rights have been infringed up to a maximum of $100,000). This court hears minor criminal matters Summary offences, such as, traffic offences, drug possession, offensive behaviour, and indictable offences heard summarily, that is, less serious offences where the offender agrees to have the case heard before a Magistrate rather than in the County Court before a judge and jury. These offences include: House breaking, theft of car, assault, recklessly causing injury punishable by prison or fine. Hearing indictable offences summarily has expanded the case load of Magistrates Courts but has lead to a quicker, more efficient process for those involved. One reason why a guilty party might prefer this method is that the penalties a Magistrate can impose are less than those a judge can impose in the County Court. Magistrates conduct committal proceedings pre-trial proceedings used for indictable offences to determine if sufficient evidence exists for trial in a higher court. In civil matters cases for compensation up to $10,000 can be referred to an arbitrator. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 17

13 Drug Court. Points to note: Deals with offenders from Magistrates Court who plead guilty to drug related crimes. Emphasis is on rehabilitating the offender. Currently situated at Dandenong Magistrates Court Koori Court Division: Provides culturally relevant justice to indigenous Australians. Koori Elder or respected person in that community works with Magistrate to provide relevant sentencing of offender. Proceedings are less formal. Offender must have plead guilty. Family Violence Division. Points to note: Deals with matters arising from situations of family violence involving intervention orders, criminal proceedings for summary offences, civil proceedings. Applications for crimes compensation due to family violence. Emphasis is on making the offender responsible and accountable for their behavior and try to change that behaviour. Neighbourhood Justice Centre. Points to note: Combined jurisdiction of Magistrates, Koori, Children s, family Violence, Family courts, some VCAT lists, VOCAT. Uses a restorative approach. Addresses underlying causes of behaviour. Offers access to services such as drug and alcohol rehabilitation, mental health and financial services, mediators. Sexual Offences List. Points to note: Deals with sexual offence charges within Magistrates Court. Recognises needs of such cases, especially the difficulties faced by victims of such cases. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 18

14 Assessment and Referral Court list. Points to note: 3 year pilot program which commenced in Case management of cases involving offenders with mental illness or cognitive impairment. Provides case managers and additional health, welfare and support services Hears cases involving such offenders who have complex needs Does not involve serious crimes or serious sexual offences Accused must consent to participate in this list County Court. Points to note: It has the jurisdiction to hear most serious criminal offences rape, armed robbery, arson, in fact, all indictable offences except murder and treason. A single judge presides over all criminal cases; there is a jury of 12 when the accused pleads not guilty. After the evidence is heard the judge sums up the facts to the jury, making them aware of the relevant law, they then decide if the accused is guilty or not guilty. If guilty, the judge is then responsible for determining the sentence. For a jury decision it is hoped a unanimous (all agree) decision is made but a majority decision (one juror disagreeing) is accepted after 6 hours deliberation. If the defendant pleads guilty, there is no jury and the judge passes sentence. The court hears most civil disputes it can hear unlimited personal injury claims. In civil cases, a jury of 6 is optional at the request of the parties but often cases are heard by a single judge without a jury. If a jury is used, a majority verdict of 5 out of 6 jurors is accepted after 6 hours deliberation. The County Court has some appellate jurisdiction for criminal cases heard and resolved in the Magistrates Court. The court has no appellate jurisdiction for civil cases. The only matters it can deal with on appeal are those relating to the facts of the case or the appropriateness of the sentence the defendant can claim it was too severe and the Crown might claim it was too lenient. The defendant can appeal against the guilty verdict and argue the facts do not prove guilt. When there is an appeal, the County Court (one judge only) hears the entire case again. The judge at the conclusion of the case can dismiss the appeal, change the sentence or change the guilty verdict. Supreme Court Trial Division. Points to note: This is the highest court in the Victorian hierarchy and has the final original jurisdiction. It is divided into a trial court with both original and appellate jurisdiction and a Court of Appeal. In the trial division there is a single judge and in the Court of Appeal there are 7 justices and appeals are heard before 3 or 5 justices depending on the severity of the case being heard. The Supreme Court in its original jurisdiction hears the most serious indictable offences murder, attempted murder, manslaughter and treason. The use of juries in the Supreme Court is similar to that in the County Court and the judge has similar The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 19

15 responsibilities with regard to a decision in a case (where no jury is involved) and with regard to sentencing in criminal case and determining the amount of compensation in a civil case if it is proven. Supreme Court Appellate Jurisdiction. Points to note: As the most senior court in Victoria, the Supreme Court has important appellate jurisdiction. A single Supreme Court judge can hear appeals from the Magistrates Court in both criminal and civil cases. In criminal cases and civil cases, appeals on questions of law (for example, application of precedent to facts of the case and interpretation of statutes) are heard in this way. Court of Appeal. Points to note: This is the final court of appeal in the jurisdiction of Victoria. It consists of 9 judges or justices of appeal including a Chief Justice of the Supreme Court. They in numbers of 3 or 5 (usually 3), hear important appeals against decisions made on criminal or civil matters in the County Court and Supreme Court (trial division where a single judge operates. Appeals are heard on questions of law, on matters of fact and sentences or remedies. The court also hears appeals about orders issued by the President of Vice President of VCAT (appeals against orders issued by other members of VCAT are heard by a single Supreme Court judge). The Court of Appeal can dismiss the appeal, overturn the decision of the previous judge or change the penalty or amount of compensation. It is also possible for the court to order a new trial. The School For Excellence 2011 The Essentials Legal Studies Book 2 Page 20