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Non-legal rules
● Non-legal rules are rules established within a group that are not generally enforceable in the
community; basically, they apply to a group but not the community as a whole
● Norms are social expectations that are clearly communicated but not usually written, and can be
values instilled by family or religious beliefs
● As you cannot be made to join a particular group, you cannot be forced to abide by non-legal rules
Legal rules
● Legal rules are laws created by legal institutions within the legal system and enforced by the legal
system that apply to the whole community
● Laws set out our rights as members of the community and establish our responsibilities to the
community
● The law gives us a way to justly and peacefully settle any conflicts that arise in our society
● Laws specify a particular type of behaviour, either to prohibit or regulate it
● Laws are enforceable by courts and tribunals
● Laws provide a sanction (penalty) or remedy against anyone who violates the law
● Laws are formed by an authority recognised by the community i.e. parliament
A legal system
● The Commonwealth and State parliaments are responsible for making laws
● The courts have the responsibilities to both interpret the law and resolve disputes where it is
claimed that the law has been breached
● The police etc. can enforce the law
Types of Law
Criminal Law
● Criminal law is concerned not only with the rights of the individuals directly involved but also with
the welfare of society as a whole
● Criminal law aims to regulate the behaviour of individuals as members of the community and to
protect the interests of society
● Types of crimes:
○ Offences against the person are relating to actions that result in some form of personal
injury e.g. murder, assault, rape, kidnapping
○ Offences against property involve conduct that results in damage to or loss of property e.g.
theft, acts of vandalism
○ Offences against morality are concerned with maintaining certain values in our society e.g.
incest, street prostitution, bigamy
○ Offences against the legal system are regarding our responsibility to participate as
responsible citizens in the administration of justice e.g. perjury, failure to appear for jury
service
Civil law
Sources of law
● In criminal law, this involves aggressive behaviour, the use of property, the use of roads etc.
● In civil law, protects individuals’ rights from other individuals and provides remedies
Resolving disputes
● The law establishes a range of dispute settlement bodies to deal with disputes that may arise in
the community
Reflecting values
● ‘Values’ refers to the basis of right or wrong within a community or society
● The law reflects a variety of values such as:
○ Social values: the way in which members of society relate to others
○ Moral values: the fundamental beliefs about right and wrong
○ Economic values: the rights of individuals in the economic system
○ Political values: the rights of individuals in the organisation of our legal system
● The law must be able to deal with the changing needs of the community
● Social Justice: based on the concept of human rights and equality, fairness in the distribution of
wealth and opportunities
● Procedural Justice: fairness in the process used to resolve disputes and access to dispute
resolution processes
Symbols of justice:
● The blindfold symbolises blind justice, which represents the concept that justice must include
equality
● The scales represent the fact that the needs of individuals must be balanced against the needs of
society
● The double-edged sword is a symbol of power and authority that can be wielded for or against
each party
Fairness
Equality
● The justice system endeavours to provide equal treatment for all individuals
● This does not mean that all individuals are treated in exactly the same manner, but rather that the
system recognises the value, ability and merit of all individuals
● Rather than being treated the same, individuals are all given an equal opportunity to exercise their
rights
Access
● Fairness: natural justice (or procedural fairness) includes the rule against bias and the right to a
fair hearing
○ The rule against bias: a judge or magistrate cannot allow actual bias, or an apprehension of
bias, to impact upon any decision
■ Actual bias is when there is evidence that bias has affected a decision
■ An apprehension of bias is when it appears that bias has occurred
○ The hearing rule ensures that a party is given the chance to present their side of the case
■ The hearing rule has mostly developed through common law
■ The prosecution can present their case against the accused and the accused is able
to respond to the allegations
● Equality: the criminal justice system seeks to achieve equality by treating participants uniformly
○ Vulnerable participants: some participants in the criminal justice system need to be
assisted with specialised procedures and facilities
■ Participants classified as vulnerable are children, people with cognitive impairment,
victims of sexual assault, and victims of family violence
■ Vulnerable witnesses can be able to give their evidence under special conditions and
be informed of the status of the proceedings
○ Cultural differences: inequalities between different cultural groups in society often need to
be addressed by the criminal justice system, for example, Indigenous offenders may qualify
to have their matter heard in a Koori Court
● Access: in the criminal justice system, it is important to have access to information and legal
representation and advice
○ Access to financial assistance: the high cost of the criminal justice system can affect an
individual’s ability to gain proper access
■ Victoria Legal Aid aims to help those who qualify to gain better access to legal advice
and legal representation within the criminal justice system, however, due to limited
funding it can usually only be utilised by the most needy
■ In a criminal case, the entire procedure can take a lot of time, which makes
maintaining legal representation very expensive
○ Access to information: in the criminal justice system, access to information is important to
both the accused and the victim of the crime
■ The accused must be aware of the allegations against them
■ A victim has a general right to access information about the status of an
investigation and, if applicable, the release date of the offender
Key concepts in the criminal justice system
● Most crimes require two elements to be established: the mens rea and the actus reus
● The purposes of criminal law include punishing the offender while still upholding their rights, and
protecting the community
● Summary offence: a less serious crime which is heard in the Magistrates’ Court
● Indictable offence: a more serious crime which is usually heard before a judge and jury at a county
or supreme court
● Indictable offence heard summarily: a magistrate in the Magistrates’ Court can hear and
determine some indictable offences if the accused gives their consent
○ Indictable offences that can be heard summarily by a Magistrate must be a level 5 or level 6
offence, punishable by a level 5 or level 6 imprisonment, a fine or both
○ The court will consider
■ The seriousness of the offence
■ The adequacy of the sentences available to the court
■ Whether a co-accused is charged with the same offence
■ Any other matter of relevance to the court
○ An accused person will consider
■ Cost
■ Efficiency
■ Sentencing options
■ Whether or not forgoing a trial by jury is a benefit
Criminal procedures
● Pre-trial procedures: these procedures aim to balance civil liberties with the need for policing
authorities to investigate crime
○ Police investigation
○ Charge sheet and listing of the matter
○ Committal proceedings
○ Bail granted or accused held on remand
○ Filing of an indictment
○ Directions hearing
○ Sentence indication
● Trial procedures: the procedures used by the courts in hearing a criminal offence; the procedures
used for hearing a summary offence differ from those used in the hearing of an indictable offence
○ Arraignment: the formal reading of the charges against an accused person
○ The accused enters a plea
○ The jury is empanelled
○ The prosecution and defence put forward their cases, including an opening and closing
address; witnesses are subject to:
■ Examination-in-chief
■ Cross-examination
■ Re-examination
○ The judge directs the jury
○ The jury reaches a verdict
● Post-trial procedures: these include the procedures used to determine an appropriate sanction,
given the aims of sanctioning
○ Court considers victim impact statement if one is submitted
○ Sanction is determined in line with the purposes of sentencing
● Burden of proof: in criminal cases, the prosecution generally has the responsibility of proving the
case against the defendant
○ This is thought to be fair as the prosecution is making the allegations so they should have
to prove them
○ Some Acts of Parliament reverse the burden of proof and place the onus on the defendant
in cases such as terrorism and drug offences
○ This also is an attempt to minimise the possibility of a person being convicted for a crime
they did not commit
● Standard of proof: the level of proof that must be reached in order to determine guilt or liability; in
a criminal case, the standard of proof is ‘beyond reasonable doubt’
Presumption of innocence
● Under the principle of the presumption of innocence, a person has a right to be presumed
innocent until proven guilty
● Presumption of innocence directly relates to burden of proof
● This principle is established through common law
● The presumption of innocence is included in the International Covenant on Civil and Political
Rights (ICCPR) and the Victorian Charter of Human Rights and Responsibilities
An accused is a person who has not yet been found guilty of a crime and, aside from the presumption of
innocence, has a number of other rights
● The Charter of Human Rights and Responsibilities Act 2006 (Vic) requires a person who is arrested
or detained on a criminal charge to be promptly brought before the court and be brought to trial
without unreasonable delay
● The Criminal Procedure Act 2009 (Vic) creates time limits for the starts of trials, which underline
the importance of bail, as a person cannot really be detained for 12 months in preparation of their
trial
○ If an accused is charged with a sexual offence, the trial must commence within three
months of the day on which the person is committed for trial
○ If an accused is charged with an offence other than a sexual offence, the trial must start
within 12 months of the day on which the person is committed for trial
● The right to silence is an important safeguard of a defendant’s right to a fair and unbiased hearing;
the defendant can choose whether or not to exercise this right
● The Charter of Human Rights and Responsibilities Act 2006 (Vic), as well as protecting the right to
silence, gives an accused person the right to not be compelled to testify against him/herself or to
confess guilt in a criminal trial
● The Victims’ Charter sets out principles on how the Victorian criminal justice system should best
respond to the victim/s of a crime
● Victims of crime should be treated fairly by all the parties involved in the case, such as police, the
prosecution, and victims’ services providers
○ There are many things that the police should inform a victim, or witness, about, which
include the police telling the victim
■ About his or her rights and the services that are available
■ How they are progressing with the case, as much as they can
■ If a person has been charged with the crime
■ Any court dates and times, and if the victim will be required as a witness
■ If an accused has received bail, and what steps have been taken, or will be taken, to
keep the victim safe
○ Additionally, the victim should be informed
■ By the prosecutors about how the court system works, including what needs to
happen if the victim is called as a witness
■ About his or her right to be kept safe in court
■ Of the right to tell the judge or magistrate about how the crime affected him or her
through a Victim Impact Statement, if the accused is found guilty
■ Of the right to seek compensation from the person who committed the crime and to
apply for financial assistance from the government
■ That he or she can receive information about an offender sent to prison for a violent
crime from the victims’ register
● A Victim impact statement is an opportunity for the victim to tell the court how he or she was
affected by the crime; it could include
○ The emotional impact of the crime, such as the victim’s general feelings and enjoyment of
life
○ The physical impact of the crime, such as how any injuries from the crime have affected the
victim’s life
○ The financial impact of the crime, such as any loss of earnings or expenses caused by the
crime
○ The social impact of the crime, such as how the crime has affected the victim’s social life
● The Victims’ Charter requires that a victim must be kept reasonably informed about the progress
of a criminal investigation
● A victim is to be provided with the following information from the prosecution
○ The charges against the person accused of the criminal offence
○ If there are no charges against any person, the reason for this
○ Any decisions to substantially modify charges, not proceed with some or all of the charges,
or to accept a plea of guilty to a lesser charge
○ How to find out the date, time and place of the hearing, or the charges against the accused
person
○ The outcome of the criminal proceeding against the accused person, including any
sentence imposed
○ Details of an appeal if one is initiated
● A victim may have to leave the courtroom until they are required to give evidence if they are also a
witness
● Victims of a criminal act of violence qualify under the Corrections Act 1986 (Vic) to receive
information about the offender, if they are also on the victims’ register
● Victims who are placed on the register are able to learn of
○ The length of the offender’s sentence
○ The offender’s earliest possible release date
○ If the length of the offender’s sentence changes
○ The offender’s parole status and conditions
○ An offender’s transfer to another State of Australia
○ An offender’s escape from prison
○ An offender’s death during his or her sentence
● A victim who has been included on the victims’ register is able to write a victim submission to the
Adult Parole Board, where the victim is able to express how he or she might be affected by the
offender’s possible release on parole (parole is the conditional release of a prisoner before the
end of the original sentence)
Cost
● The financial cost of accessing the criminal justice system impacts upon our ability to achieve
justice
● Court fees and legal representation are too expensive for many people
● Victorian Legal Aid (VLA) can provide legal assistance to those who qualify, but limited funding
means that there are limits to who can utilise this
Time
● Delays and the backlog of cases also impact upon the criminal justice system’s ability to achieve
justice for both the accused and the victims of crime
● Criminal pre-trial procedures, such as committal hearings, are designed to reduce delays in the
criminal justice system by ensuring a case is not heard unless there is sufficient evidence to make
a decision
● Additionally, the current overcrowding in Victoria’s prisons has been reported to be causing delays
in matters being heard
Cultural differences
● Indigenous Australians are one group who may experience disadvantage in the criminal justice
system
○ Discrimination and prejudice have been experienced by many members of the Indigenous
community, including in their dealings with the criminal justice system
○ These difficulties have been addressed, to some degree, through initiatives such as the
Koori Court and the Aboriginal Community Liaison Officer (ACLO) Program offered by the
Victorian Police
● Non-English speakers are another group who may experience disadvantage in the criminal justice
system
○ Cultural and linguistic differences can reduce the ability of the criminal justice system to
achieve justice for an offender and/or victims
○ Parties with limited proficiency in the English language can experience disadvantage
○ To address this, to at least some degree, the Magistrates’ Court provides interpreters, free
of charge, for an accused in a criminal matter
● Recent changes have been made to try to improve the criminal justice system
● Changes made to improve the criminal justice system may come from members of the
community, the media, police, the courts, parliament and other stakeholders in the criminal justice
system
● One recent reform that has impacted on the ability of the criminal justice system to achieve justice
is the change to Victorian Legal Aid’s means testing
● Means testing means that a person applying for legal assistance has their income and the value of
their assets assessed, to ensure that funding goes to those with the greatest financial need
● Recommended reforms are suggestions to improve the criminal justice system that have not yet
been adopted
● Due to an increase in the number of people being held on remand, significant delays in the
transport of prisoners were reported in early 2016
● This caused a backlog of cases, which caused unreasonable delays for those held on remand
awaiting trial
● This problem was addressed by putting more offenders on bail, which led to an added risk to the
community
● Criminal law sets out the boundaries of acceptable behaviour of individuals in society for the
protection and benefit of the community
● When the law is broken, the criminal justice system ensures that the correct person is charged and
dealt with in a manner that is effective, but also fair and equitable
● Victoria’s criminal justice system is based on the presumption of innocence, meaning that the
accused person is presumed to be innocent until their guilt is proven ‘beyond reasonable doubt’
Types of crimes
● Specialisation: a court hierarchy enables the workload of the courts to be divided which allows
courts, legal personnel and judges or magistrates to develop an area of expertise which can
ensure that justice is fulfilled
● Appeals: the right to appeal is fundamental to the concept of justice, but appeals would not be
possible unless there were higher courts to appeal to, which have the power to overrule decisions
made by lower courts
● Administrative convenience: a hierarchy provides a means of allocating cases quickly, reducing
delays and making effective use of limited physical and financial resources
● Doctrine of precedent: this provides consistency in laws by ensuring they are interpreted the same
way, whichever judge oversees the case; the court hierarchy ensures that more experienced
judges from higher courts make precedents
● Time and money: summary offenses that can be heard quickly are heard in the Magistrates’ Court,
which hears many cases in one day, which saves the longer and more complex cases for the
higher courts
● Expertise and experience: higher courts have more experienced and even specially qualified
judges, so they hear more complex cases, while lower courts, with less experienced judges or
magistrates, hear cases that are not very complex and do not require as much experience
● Minor matters determined locally: a court hierarchy allows for the idea of a local court to settle
minor disputes
State courts
The Magistrates’ Court
● A Magistrates’ Court
○ Is presided over by a single magistrate
○ Has original jurisdiction over criminal matters that are summary offenses
○ Processes 90% of all criminal cases in Victoria
○ Cannot hear appeals, as it is the lowest court in the hierarchy
● In relation to criminal offenses, the Magistrates’ Court hears
○ Summary offenses: a less serious offense
■ Summary offenses include traffic offenses, minor assault and property damage
■ There is no right to trial by judge and jury for summary offenses
○ Indictable offenses heard summarily: a more serious offense that is triable before a
magistrate without a jury
■ A person accused of an indictable offense has the right to trial by judge and jury, but
in certain circumstances the case can be determined summarily in the Magistrates’
Court
■ The indictable offenses that may be heard summarily are those that are
● Listed in Schedule 2 of the Criminal Procedure Act 2009 (Vic), including drug
offenses, robbery and handling stolen goods
● Punishable by terms of imprisonment of up to 10 years (level 5) or a
maximum fine of $186,552 (level 5) or both
■ For an indictable offense to be tried summarily
● The prosecutor or the defendant must apply to have the offense heard
summarily (or the court can decide to have the matter determined
summarily)
● The court must be satisfied that the matter is suitable to be determined
summarily
● The defendant must consent to having the case heard summarily
○ Committal proceedings: the first time an accused appears in court
■ The accused is formally charged with the crime
■ The evidence is assessed to establish if it is sufficient to support a conviction
○ Bail applications: where it is decided whether or not the suspect will be held in remand
until the trial
○ Warrants: a legal document used by the court to authorise a particular act e.g. a warrant to
arrest, a remand warrant or a search warrant
● Appeals can be made by either party from the Magistrates’ Court
○ In criminal cases, the County Court can hear appeals against a conviction or sentence from
the Magistrates’ Court
○ The County Court may decide to
■ Reduce the sentence
■ Increase the sentence
■ Set aside the conviction and dismiss the case
○ The Supreme Court can hear appeals from the Magistrates’ Court concerning a point of law
○ The Supreme Court may decide
■ To discharge the appeal and allow the decision of the magistrate to stand
■ That the decision of the magistrate was an error in law and quash or overturn the
magistrate’s decision
■ To send the matter back to the Magistrates’ Court, directing the magistrate to apply
the law as stated by the Supreme Court
● Specialist courts are courts that apply different approaches in an attempt to solve the problems
caused by mainstream courts, such as:
○ Outdated court processes that are seen as unnecessary
○ Increasing court workloads
○ A growing prison population
○ A breakdown in institutions that have supported individuals in the past
○ Difficulties in providing offenders with adequate or effective services
○ The realisation that the causes of reoffending can be addressed using methods other than
punishments
● The Drug Court (DCV) was created in response to the failure of the traditional justice system to
successfully deal with drug and alcohol offending
● The DCV focuses on the rehabilitation of offenders and provides offenders with the assistance
needed to be reintegrated into society
● The DCV is concerned with the sentencing and supervision of offenders who have a drug or
alcohol dependency or have committed an offense either under the influence of drugs or alcohol
or to support a drug or alcohol habit
● The DCV does not hear cases of actual bodily harm or sexual offenses
● To have their case heard in the DCV, the offender must plead guilty as the DCV is a sentencing
court
● The aim of the DCV is to rehabilitate the offender, reduce the level of criminal activity and reduce
the health risks associated with the offender’s dependency
● A drug treatment order (DTO) can include both treatment with supervision and a custodial
sentence
● The conditions of a DTO can include
○ Submitting to drug and/or alcohol testing, detoxification and other treatment
○ Attending the Drug Court when required
○ Not committing another offense that is punishable by a prison sentence
○ Undergoing drug and/or alcohol treatment
○ Reporting to and obeying all lawful directions of the Drug Court, Drug Court officers and
community corrections officers
○ Giving notice of a change of address and not leaving Victoria
○ Attending educational, vocational or employment programs
○ Not associating with particular persons
● The DCV is not only cost-effective in comparison to the traditional court system, but it has been a
success in reducing recidivism
● The Koori Court was created in response to the overrepresentation of Indigenous Australian
people in the criminal justice system both as offenders and victims
● While the magistrate/judge is still in charge of proceedings, members of the Indigenous
community such as Elders and Respected Persons contribute and family members can also be
present
● The case is heard with the participants of the court sitting around a table rather than in the
traditional court setting, which can be intimidating
● Participants speak using ‘plain English’ rather than legal jargon
● The Koori Court is also a sentencing court, meaning the offender must plead guilty, and it also
does not hear sexual offenses
● The main aim of the Koori Court is that the Indigenous community better engages with the justice
system and the causes of offending is addressed to prevent the offender reoffending
● The Koori Court increases Indigenous ownership of the court system, increases community
awareness, breaks the cycle of frequent Indigenous offenders, makes court hearings more
personal, makes the court system easier to understand, encourages the offender to participate,
helps the victim’s statement to be heard and reduces racial bias
The Family Violence Court deals with both the offender and victim, and aims to
This program provides mainly first-time offenders with the opportunity to avoid a criminal record by
complying to certain conditions; the benefits of the program include:
To be eligible:
● The Neighbourhood Justice Centre (NJC) is a multijurisdictional court in the City of Yarra that
includes in its criminal jurisdiction a Magistrates’ Court, a Children’s Court and a Victims of Crime
Assistance Tribunal (VOCAT)
● It aims to provide new ways of dealing with crime and related issues by creating a more
integrated, responsive and accessible justice system
● To use the NJC, the accused must
○ Reside within the City of Yarra, or
○ Be a homeless person who either lives in the area or is alleged to have committed the
crime in the area, or
○ Be an Indigenous person with a close connection to the area and be alleged to have
committed the offense in the area
● The NJC runs a process called Problem Solving which involves addressing the problems of the
defendant in an effort to help them ‘back on track’
● The NJC has one magistrate, meaning that any reoffender has their case heard by the same
magistrate as previously, so the magistrate already has knowledge of the individual and their
circumstances, which maximises the ability of this court to help offenders
● The County Court has original jurisdiction in criminal matters to hear most indictable offenses in
Victoria
● The County Court also has appellate jurisdiction as it hears appeals from the Magistrates’ Court
concerning a point of law, a question of fact or the severity or leniency of a sentence
● A judge presides over the County Court and there is a jury of 12 when a defendant pleads not
guilty
● The Supreme Court is the highest court in Victoria; it is presided over by a judge
Trial Division
● The Supreme Court - Trial Division hears the most serious criminal matters, such as murder or
treason
● If the accused pleads not guilty, there is a jury of 12
● This court can also hear appeals from the Magistrates’ Court (they are heard by a single judge) and
bail applications
Court of Appeal
● The Supreme Court - Court of Appeal hears criminal appeals from the County Court and from a
single judge of the Supreme Court
● This court is usually presided over by three judges, but it can have five judges on ‘matters of
significant importance’ and it can have as few as two judges
● The High Court is the highest court in Australia and it exercises both original and appellate
jurisdiction
● This court hears matters relating to the Constitution, the Commonwealth and disputes between
States, as well as appeals from State and Territory Supreme Courts, which are heard by at least
two judges
● Parties who wish to have their appeal heard in the High Court must convince the court in a
preliminary hearing to hear their case
● Decisions made by the High Court are final
● As our legal system has complex processes and procedures, legal representation is seen as being
essential to the achievement of justice, however, as it is very expensive, not everyone can afford it,
which can result in an injustice; institutions have been established to help people who cannot
afford legal representation
● Legal aid is a service that helps people who are dealing with the criminal justice system access
legal information, advice and representation
● VLA is a government funded agency established to ensure that Victorians who cannot afford a
private lawyer receive assistance with their legal problems
● VLA has lawyers on staff, however most cases that go through legal aid are assigned to private
lawyers who charge VLA at a discount rate
● VLA can provide legal advice, provide assistance to a person in court and organise a case, which
can include representing a person in court
● VLA can help people who
○ Cannot afford a private lawyer
○ Have an intellectual disability, an acquired brain-injury or mental illness
○ Are in a psychiatric in-patient unit
○ Are experiencing or are at risk of homelessness
○ Are a person under 18 years of age going to the Children’s Court
○ Cannot speak, read or write well in English
○ Are Indigenous Australians
○ Are in custody or facing serious penalty
● VLA gives priority to those charged with serious criminal offenses, people who experience severe
disadvantage and accused children
● Eligibility for VLA is determined based on assessable income, other assets and weekly living
expenses
● VLA must consider
○ The effects of granting or refusing aid will have on the individual or the public
○ Whether the matter is likely to end up in favour of the defendant
○ How much a person actually can afford to pay for legal services, and whether they must
pay a percentage of costs
● VLA also has information and resources such as a free telephone helpline for those who need
legal advice which caters for people who do not speak English
Community Legal Centres (CLCs)
● CLCs are staffed by paid and volunteer lawyers and are funded by the government, local councils,
universities and other organisations
● CLCs offer free legal advice and help for disadvantaged Victorians, determine eligibility for legal
assistance and arrange or provide representation in court proceedings
● Although CLCs are not as strict as VLA, a person asking for help is expected to demonstrate that
they are in some form of financial difficulty
● The VALS provides services to Aboriginal and Torres Strait Islander people who require legal
assistance, such as legal advice, the assistance of a duty lawyer and legal casework services,
including representation
● Victoria Police are required to notify VALS when a person of Aboriginal or Torres Strait Islander
descent is taken into custody
● Priority is given
○ To a person in custody
○ Where there is a real risk to a person’s physical safety
○ Where personal or cultural wellbeing is at risk
○ To a family who has a member who has died in custody and is inquiring into the death
○ Where a client would be significantly disadvantaged if assistance is not given
● The client must prove their Aboriginality and either be under 18 years of age, have their main
source of income coming from Centrelink (or equivalent) benefits, or have a gross household
income of under $46 000
● This service can provide a lawyer or other legal help free of charge at many courts to help people
who are at the court for a hearing, but do not have their own lawyer
● Priority is given to people who
○ Cannot afford a private lawyer
○ Have an intellectual disability, an acquired brain-injury or mental illness
○ Are experiencing or are at risk of homelessness
○ Cannot speak, read or write well in English
○ Are Indigenous Australians
○ Are in custody or facing serious penalty
● Assistance is automatically given to anyone going before the Children’s Court
Justice Connect
● This is a not-for-profit organisation which is committed to improving access to the legal system
and protecting human rights
● Justice Connect often aids those experiencing homelessness or at risk of homelessness, especially
if the offenses they are being tried for are directly related to this
Magistrates’ Court
● Registrars in the Magistrates’ Court are able to give procedural advice, although they must be
impartial
● Through the Law Institute of Victoria, this scheme gives pro bono legal service for those who
cannot afford a private lawyer but are not eligible for VLA
Committal proceedings
● A committal hearing is a pre-trial hearing conducted in the Magistrates’ Court to determine if the
prosecution has enough evidence to commit the accused to trial in a higher court
● The prosecution must establish that there is a ‘prima facie’ (at first appearance) case or sufficient
evidence against the defendant to support a conviction; if there is not sufficient evidence, the
defendant is discharged
● The committal hearing also allows the defendant to see the prosecution’s evidence
● The cross examination of some witnesses is limited during a committal, including victims of a
sexual offense, children, a person with a cognitive impairment or a witness who has already made
a statement or given a testimony
● The purposes of committal hearings are
○ Determining whether there is evidence of sufficient weight to support a conviction for the
offense charged
○ Determining whether a charge for an offense is appropriate to be heard and determined
summarily
○ Determining how the accused proposes to plead
○ Ensuring that the prosecution’s case is adequately disclosed
○ Ensuring that the accused can hear the evidence against them and cross-examine
witnesses
○ Enabling an accused to put forward a case at an early stage
○ Enabling the issues in contention to be adequately defined
● A committal mention identifies those cases in which the defendant intends to plead guilty
○ If the defendant pleads guilty, a date is set for the case to be heard in a higher court for the
defendant to be sentenced
○ If the defendant pleads not guilty, the magistrate may
■ Require information about the number of witnesses to be called and the likely
length of the hearing
■ Adjourn the hearing of the committal proceedings to enable the defendant to obtain
legal representation
■ Set a date for the contested committal mention (in some cases)
■ Set a date for a committal hearing in the Magistrates’ Court
■ Conduct a committal proceeding immediately (if the magistrate believes that there
is sufficient evidence)
‘Hand-up brief’
● Most committals are conducted as hand-up briefs, where written documents are used instead of
hearing witnesses
● The main purpose of a hand-up brief is to inform defendants of the case against them
● Hand-up briefs also save court time, as the evidence being used by the prosecution is sent to the
defendant so they can make an informed decision on whether they should plead guilty or not
guilty
Committal hearing
● A committal hearing involves the hearing of the prosecution case in court; the defendant may
elect to not present a defense
● In a committal hearing, witnesses are examined under oath and their evidence is recorded in
writing
● After the evidence for the prosecution is heard, the defendant must decide whether they are
going to plead guilty or not guilty, and, if they are pleading not guilty, if they will present a defense
at the committal hearing (usually, the defendant does not present a case at the committal hearing)
● After all the evidence has been heard, the court decides if there is sufficient evidence to support a
conviction in a higher court; if there is insufficient evidence, the case is dismissed and the
defendant is discharged, but if there is sufficient evidence, the defendant will be directed to stand
trial in a higher court
Pre-trial negotiations
● Pre-trial negotiations involve finding a way to settle criminal disputes not only effectively, but also
quickly, in an attempt to obtain justice not only for the accused, but also the victim(s) and the
community
Plea negotiations
● Plea negotiations are where the defense counsel and prosecutor negotiate as to which charge will
stand up in court and/or the defendants plea
● Plea negotiations are informal processes as they are not formalised in Victorian law
● The accused and their legal representative can offer to plead guilty to a lesser charge if the more
serious charge is withdrawn
● Appropriateness of plea negotiation
○ The prosecution is able to get a conviction for the crime/s and the offender receives a
sanction
○ The process streamlines pre-trial and trial procedures and reduces delays in the legal
system
○ Plea negotiations save costs to the taxpayer
○ The victim is saved the prolonged proceedings of a trial
● Weakness of plea negotiation
○ Serious charges can be downgraded
○ Negotiations are not subject to review or appeal and are not reported, resulting in a lack of
transparency
○ The victim does not get to testify against the accused
○ Criminals who have committed serious crimes are released back into the community
sooner, as they have received reduced sentences
● The Diversion Program is a way for an accused to avoid a criminal record or a plea of guilty,
instead focusing on their rehabilitation to help them not break the law again
● If the magistrate approves, the offender can be put on a diversion plan, which usually lasts for 12
months, which can include conditions like writing a letter of apology to the victim, making a
donation, doing community work and attending counselling, doing a drug or alcohol awareness
course or doing a driving course
● An offender may be eligible for a diversion if
○ The offense is to be heard in the Magistrates’ Court
○ The offense does not have a minimum or fixed sentence or penalty
○ The offender agrees that they were responsible for the crime
● If the conditions of the plan are followed, the charges will be dropped
● The Diversion program is usually for the first offense that is not too serious
Sentence indication
● A sentencing indication scheme is another way of encouraging an early guilty plea by giving the
offender information concerning what type (custodial or non-custodial) and duration of sentence
they will get if they plead guilty as opposed to if they plead not guilty (sentence discounts apply if
the offender pleads guilty)
● The Criminal Procedure Act 2009 (Vic) provides that
○ If a non-custodial indication is given, and the accused pleads guilty at the next available
opportunity (either immediately after the indication or at the next pre-trial hearing), this is
then binding on the judge in sentencing so a custodial sentence cannot be given
○ If a person pleads guilty after a custodial indication is given, this can be changed to a
non-custodial penalty after the revelation of all material at a later plea hearing examination
○ If an indication is given, but the accused does not plead guilty, the case must be relisted
with a different judge, unless all parties agree otherwise
● Criticisms of the sentencing indication scheme include
○ The negative impact on the victims who are unable to ‘have their day in court’ and may feel
that the accused has been given a light sentence
○ Much of the accused’s mitigating and aggravating factors may be unknown to the judge at
the time of sentencing
○ Society’s increasing pressure for harsh sentences may not be reflected in the sentence
indication
○ Court efficiency may be prioritised above the interests of justice
○ It seems incompatible with other legislation, which states that offenders must ‘not be
compelled...to plead guilty’
● The use of the jury is based on the idea that you have the right to be judged by your peers, and it
also supports the idea that everyone in the community is responsible for the administration of
justice
● The accused can challenge a juror before they are seated in the jury box; the accused has the right
to challenge peremptorily (without a given reason)
○ Six jurors if only one person is arraigned (on trial)
○ Five jurors if two people are arraigned
○ Four jurors if more than two people are arraigned
● The Crown can also stand aside jurors; the Crown can stand aside
○ Six jurors if only one person is arraigned
○ Ten jurors if two people are arraigned
○ Four jurors per person arraigned if more than two people are arraigned
● The accused and the Crown also have an unlimited number of challenges for cause (where there is
a good reason for the juror not being selected); the judge decides whether the reasons given for
the challenge are valid
● The jury performs the following functions
○ Attends the trial for as long as required
○ Listens to all evidence and submissions presented by counsel for both sides
○ Remembers, collates and analyses arguments presented for both sides
○ Decides questions of fact
○ Follows instructions given by the judge on questions of evidence, procedure and points of
law
○ Follows the judge’s direction, if issued, to acquit the accused
○ Takes note of the judge’s final summary of the case
○ Reaches and delivers a verdict (in a criminal case, the verdict must be ‘beyond reasonable
doubt’ for the accused to be found guilty)
● After hearing the case, the jury retires to the jury room to consider the evidence and reach a
verdict
○ When the jury reach a verdict, the foreperson reads the verdict out to the court
○ If a verdict cannot be reached, the judge may declare the jury to be hung jury and a new
one is empanelled
● In most instances the accused is responsible for arranging and paying for a legal representative
● If a person does not hire a lawyer to present their case they may be disadvantaged
● Solicitors are lawyers who prepare the case and barristers are lawyers who present the case in
court
● A criminal trial begins with the arraignment of the accused: this is when the judge's associate
reads out the charge/s and asked if defendant to plead guilty or not guilty
Pleading guilty
● If an accused pleads not guilty, the trial is heard by a judge and twelve jurors
● When an offender pleads not guilty, a jury is empanelled
Prosecution opening
Defence response
● The defence presents a response to the prosecution opening, outlining the issues in the trial and
identifying the facts that are not contested
● This information should be consistent with what was disclosed or identified in the pre trial stages
Address to the jury
● The trial judge may then address the jury on the issues in the trial and the relevance of any
admissions, directions or matters determined before the start of the trial
Prosecution case
● At the end of the prosecution’s evidence, the defense may argue that there is no case to answer
● If the judge agrees, the jury will be directed to acquit the accused
Defense case
● If the case is still proceeding, the defense can then present witnesses, which are examined in the
same way as prosecution witnesses
● The accused has the right to remain silent, and no inference as to whether or not the accused is
guilty can be drawn from this
Final addresses
● Both the defense and the prosecution summarise the evidence presented, drawing attention to
the strengths of their arguments and highlighting the weaknesses in the other side’s arguments
● The jury then retires to the jury room to consider its verdict
● If the jury cannot reach a unanimous verdict after six hours (this time is sometimes extended), in
some cases a majority verdict can be accepted
● If the jury cannot make a decision the judge will declare the jury a hung jury and have it replaced
and the case reheard
● Because of the costs involved, it is preferable that the jury reaches a decision rather than the case
having to be reheard
● A legal system can only operate if it has the support of the majority and the community will only
support the legal system if justice is provided
Fairness
● Everyone has the right to a lawful hearing and procedural fairness or impartiality
● Our basic values are reflected in
○ The right to be considered innocent until proven guilty: the burden of proof is on the
accuser to prove the guilt of the accused ‘beyond reasonable doubt’
○ The right to silence: there are many reasons for reticence – fear of the police, lack of
understanding of the legal system, of what is being asked, lack of confidence in expressing
oneself; guilt cannot be assumed if a person chooses not to speak in court
○ The right to trial by jury: a cross-section of the community means a range of values, making
sure the law remains relevant and meaningful
● The rules of evidence and procedure used in a trial ensure that the prosecution and the defence
have an equal opportunity to present their case
● The use of the jury means that the final decision is made by unbiased and impartial
representatives of the community
Equality
● Equality is reflected through non-discriminatory processes and procedures that treat everyone in
the criminal justice system the same way
● Equal treatment is reflected in
○ The use of interpreters for people with language difficulties
○ Specialist courts, such as the Koori Court, that recognise cultural differences and their
importance
○ Evidence being given orally in court so that it can be tested through cross-examination
Access
● A criminal justice system must be accessible to all members of society for it to be considered fair
and just
● However, a person without effective legal representation could be considered unlikely to receive a
fair trial
● The laws in our criminal justice system reflect the values and culture of a mainly white
Anglo-Saxon society, whereas Australia is made up of many different cultures; injustices can be
created in the legal system if our differences are not recognised
Indigenous Australians
● Usually an interpreter is used in the courts if any member of proceedings cannot speak or
understand English, however, because there are so many Indigenous languages, it can be difficult
to find a suitable interpreter; even when English is used, there are enough differences between
Australian Aboriginal English and Standard Australian English that there are still issues
● Further cultural differences that have caused injustices in the legal system include
○ The way direct questioning is done with Indigenous witnesses or accused persons
○ The fact that it is seen as disrespectful to have or maintain direct eye contact with a
‘respected’ Indigenous person
○ The fact that it is not acceptable in Indigenous cultures to disagree with a ‘respected’
Indigenous person
○ The fact that it is not acceptable for a woman to discuss matters of a sexual nature,
particularly with a man (many police and legal personnel are men)
Time delays
● It is important that criminal procedures are conducted in a timely manner as the accused, victims
and witnesses can experience significant stress waiting for a case to be finalised, especially if the
accused has been denied bail and is being held in remand
● Delays can also result in an increase in costs for the court, the prosecution, the defense, the
witnesses and any victims
● A number of pre-trial procedures have been introduced to reduce delays
● Delays are caused by
○ Delays in determining a plea
○ Delays in the preparation of cases
○ Court workloads
○ Delays in collecting evidence
○ Adjournments
○ Rules of evidence
● Delays are reduced by
○ Plea negotiations
○ Sentence discounts
○ Sentence indication
● Areas that contribute to trial efficiency include
○ Having legal representation available after arrest and before the defendant is charged
○ Providing improved incentives for defendants to plead guilty early
○ Verifying that prosecutors are involved at or before the charging process, so that they can
provide advice about the most appropriate charges so that charges are not withdrawn
prior to the trial
○ Ensuring that charges are examined by experienced lawyers, preferably those who will be
involved in the case
○ Guaranteeing that lawyers start plea negotiations before any court hearing
○ Ensuring that lawyers concentrate only on the issues in dispute: in other words, find as
much common ground as possible
○ Ensuring that communication between the parties’ lawyers involves sufficient expertise and
authority to make decisions
● The Sentencing Act 1991 (Vic) is the key legislation guiding sentencing in Victoria: it sets out the
purposes of sentencing, the hierarchy of sentencing options, the factors a court considers when
sentencing and a range of sanctions
● Just punishment
○ To inflict some kind of loss or burden on the offender in a manner that is just, given the
circumstances of the crime committed
○ Various degrees of loss can be imposed from a financial loss (fine) to deprivation of liberty
(imprisonment)
● Deterrence
○ General (public) deterrence is aimed at preventing crime in the general population for fear
of the perceived consequences
○ Specific deterrence is designed to discourage a particular offender from reoffending
● Rehabilitation
○ To establish conditions where the offender’s behaviour would be altered so that they
abandon their wrongdoing and and reintegrate into society as law-abiding citizens
○ Includes general education programs and counselling
● Denunciation
○ To condemn and criticise publicly the conduct of the offender as wrong and inexcusable
● Community protection
○ While imprisonment is seen as a last resort, sometimes it is necessary to remove an
offender from society because they are a threat to others
● A sentencing hearing is part of the post-trial process and is where the offender is given a sentence
by the judge
● The court will already have heard evidence which can affect the sentence, such as
○ The nature and circumstances of the offense: some crimes are planned while some are
committed on the spur of the moment and some crimes cause a lot of damage, while
others do not
○ The degree of criminality: the extent of misconduct relates to the number of offenses and
their seriousness
○ Injury, loss or damage: the extent and degree of injury or loss will affect the sentence
● Mitigating factors
○ Evidence about the offender or the circumstances of the crime which may reduce the
sentence
○ Examples include the offender showing remorse, the crime not harming or presenting the
risk of harming anyone, or the offender pleading guilty
● Aggravating factors
○ Evidence about the offender or the circumstances of the crime which may increase the
sentence
○ Examples include the offender having a criminal record or the use of a weapon
● Guilty pleas
○ Guilty pleas or intentions to plead guilty must be taken into account when sentencing
○ A guilty plea can result in a reduced sentence
○ Guilty pleas are treated as mitigating factors: they may be taken as a sign of remorse, they
spare the community the cost of conducting a full trial and they can spare any victims or
witnesses the potential trauma of giving evidence
Types of sanctions
● The Sentencing Act sets out a hierarchy of sanctions: dismissal/discharge (least serious),
adjournment undertaking, fine, community correction order (CCO), drug treatment order (DTO), to
imprisonment (most serious)
● Where possible, the aim is not to record a conviction against the defendant, even if they are found
guilty, mainly because a criminal conviction can have a number of negative effects to an offender
● Dismissal, discharge and adjournments give courts the discretion to not record a conviction
and/or not impose a sanction (usually for very minor or first offenses)
● A court will consider the nature of the offense, the character and record of the offender and any
impacts a conviction could have in relation to imposing or not imposing a recorded conviction
● A dismissal is an order by which the court finds an offender guilty of an offence but does not
record a conviction or impose a sanction
● A discharge is when the court finds an offender guilty of an offence and records a conviction but
does not impose a sanction
● An adjournment, which allows a person to be released into the community, can be made with or
without recording a conviction
○ An adjournment without conviction is where the court finds a defendant guilty of an
offense, but adjourns the hearing for up to 60 months and releases the defendant, and
after the period of time has passed, not conviction is recorded if the defendant is ‘of good
behaviour’
○ A court can convict an offender for an offense but adjourn the case for up to 60 months,
where the offender is released after giving the court an undertaking to ‘be of good
behaviour’; the court can also impose special conditions during the adjournment period
● The Criminal Justice Diversion Program (CJDP) provides a diversion program for offenders
convicted for the first time and those convicted of minor offenses
○ The program allows offenders to avoid a criminal record by accepting conditions, such as
making (usually financial) reparation to a victim or complete volunteer work
○ The diversion program can be used where
■ The offense is triable summarily
■ The defendant admits to the facts
■ There is sufficient evidence to gain a conviction
■ A diversion is appropriate in the circumstances
○ Using a diversion program requires the consent of the prosecution, and the view of the
victim is also considered
● The only purpose these types of sanctions fulfil is rehabilitation of the offender, which is why they
are only used for minor crimes, where it is not necessary to deter people from committing crime,
denounce the behaviour or protect the community from the offender, and where rehabilitation is
more important than just punishment
Fines
Fines and the purposes of criminal sanctions
● Just punishment: fines inflict a burden on the offender, so it satisfies the purpose of punishment
● Deterrence: the concern over losing money would act as a deterrent for most people
● Rehabilitation: aside from the WDP scheme for people who are unable to pay fines, this sanction
does not rehabilitate the offender
● Denunciation: taking away an offender’s money denounces their behaviour to a degree
● Community protection: fines do not protect the community from the offender, so they would not
be an appropriate sanction for a dangerous or serious offender
● CCOs are a flexible sentencing option introduced in 2012 that can be used alone or in addition to
imprisonment or a fine
● They aim to provide non-custodial sentence options which can be applied to a wide range of
offending behaviours
● They can be tailored to meet the particular circumstances of the offender and the crime and
different conditions
● The courts can attach a range of conditions to a CCO
● All those sentenced to a CCO must abide by basic conditions, such as not reoffending, not leaving
Victoria without permission and abiding by any order of the Secretary of the Department of Justice
● Other possible conditions attached to a CCO can require the offender to
○ undertake medical treatment or other rehabilitation
○ remain free of alcohol and/or drugs
○ not enter, remain within or consume alcohol in a licensed premise (hotel, club, restaurant)
○ complete unpaid community work up to a total of 600 hours
○ be supervised, monitored and managed by a Corrections worker
○ abstain from contact or association with particular people (for example, their co-offenders)
○ live (or not live) at a specified address
○ stay away from nominated places or areas
○ abide by a curfew, remaining at a specified place for 2 to 12 hours each day
○ be monitored and reviewed by the court to ensure compliance with the order
○ pay a bond – a sum of money that may be forfeited wholly or partly if the offender fails to
comply with any condition imposed
● The court may set an intensive compliance period for a CCO of 6 months or longer, where the
offender must complete one or more of the conditions within that period
● An offender who breaches the conditions of their CCO may be resentenced for the original offence
and face an additional 3 months’ imprisonment or a fine of 30 penalty units
Community Correction Orders (CCOs) and other court orders and the purposes of criminal sanctions
● Just punishment: CCOs inflict a burden on the offender, so it satisfies the purpose of punishment
● Deterrence: while any form of punishment would act as a deterrent, CCOs would not really deter
an offender as effectively as another type of sentence
● Rehabilitation: conditions of a CCO can be aimed at rehabilitation; the main purpose of a DTO is to
rehabilitate the offender
● Denunciation: while any form of punishment would denounce a crime, CCOs would not really
denounce a crime as effectively as another type of sentence
● Community protection: CCOs do not protect the community from the offender as effectively as
imprisonment, so they would not be an appropriate sanction for a dangerous or serious offender
Imprisonment
● Imprisonment removes an offender from the community and denies them their liberty
● Judges must consider all other sentencing options before imposing a prison term, as
imprisonment is recognised as a last resort
● Maximum terms are put in place for offenses punishable by imprisonment
● A minimum term of imprisonment refers to the time an offender must serve before they can apply
for parole (parole is the conditional release of a prisoner before the end of the original sentence)
● Sentencing options
○ Concurrent sentencing is where the offender serves multiple sentences at the same time
○ Cumulative sentencing is where all terms of imprisonment are added together to form a
total period of imprisonment; it is usually only applied for serious offenses or if the
offender has a long history of offending
○ Serious offenders (i.e. offenders who have repeatedly committed an arson, serious drug
offense or serious sexual offense) will often receive a longer sentence in order to protect
the community
○ Serious sex offenders (i.e. sex offenders who is proven guilty for two or more sex offenses)
must serve multiple jail terms consecutively, except in exceptional circumstances
○ Indefinite sentences can be imposed on offenders who are seen as a serious danger to
society; after serving their nominal sentence, the offender’s case is reviewed every three
years and they are only released if the court decides that they are no longer a danger to
society
● Just punishment: imprisonment inflicts a burden on the offender, so it satisfies the purpose of
punishment
● Deterrence: the fear of going to prison or going back to prison would act as a deterrent
● Rehabilitation: in some cases, there are programs offered within a prison that aim to rehabilitate
an offender, however sometimes imprisonment does not satisfy this purpose
● Denunciation: taking away an offender’s liberty denounces their behaviour
● Community protection: imprisonment protects the community from a dangerous person by
removing them from society
Other court orders
● Compensation orders: if a defendant has been convicted of an offense that caused a victim to
suffer loss or property damage, the court can order the defendant to compensate the victim
● Restitution orders: courts may order a defendant who has been found guilty of stealing goods or
being in possession of stolen goods to return the goods (or how much money the goods were
worth, if they have already been sold) to the owner
● Hospital orders: once a defendant has been found guilty the court can make a diagnosis,
assessment and treatment order for a period of up to three months; the court can also have a
defendant believed to be suffering from a mental illness admitted as an involuntary patient
● Cancellation or suspension of licences or permits: the courts and VicRoads have the power to
suspend, cancel or vary licences or permits
● Drug offender cautioning scheme: under this scheme, first-time offenders for possession of drugs
are formally cautioned by the police rather than being charged with an offence
● Sanctioning options aim to treat offenders fairly, with the sanctions reflecting the seriousness of
the offense, as well as degree of culpability and other circumstances surrounding the offender, the
victim or the crime itself
● Sentencing guidelines promote fair and equitable sentencing for all offenders, and ensure that
sanctions are
○ Not unnecessarily severe to achieve the purpose for which the sanction is imposed
○ Proportional and measured in relation to the offending behaviour
○ Equitable and similar to sanctions imposed on like offenders in like circumstances
○ Just and appropriate in circumstances where an offender is sentenced for multiple offenses
● Traditional sentencing options (i.e. imprisonment) often fail to address the underlying cause of
criminal behaviour and do not rehabilitate offenders or prepare them to re-enter society
● In 2015, of all offenders serving a prison sentence
○ Only 14% of prisoners completed secondary school
○ 75% of male and 83% of female prisoners have a history of substance abuse and the
average prisoner was unemployed at the time of offending
○ 40% of prisoners suffer from mental illness and cognitive disabilities and were homeless
● Inequality in sentencing outcomes may occur because of an offender’s cultural background
● Minority groups may have difficulty understanding and effectively contributing to the sentencing
process because of their cultural background, language barriers and different expectations of the
legal system, which can result in unfair and unjust sentencing outcomes
● Prison is a costly option for the community and the current rates of recidivism indicate that
imprisonment as a sanction may not be effective
Sentencing reforms
● The changing nature of crime and sentencing and community values means that sentencing policy
is continuously undergoing refinement and change
● Sentencing options must remain flexible if they are to be effective
● Understanding criminal behaviour and how best to respond to it in a manner that is fair, just and
equal is an ongoing challenge for the criminal justice system
● There are concerns within the community regarding some aspects of sentencing
● Sentencing ranges are broad, and this sometimes creates inconsistency in sentencing and may
cause the public to question the sentencing
● Vulnerable, disabled and mentally impaired victims of crime may have difficulty communicating
the impact of a crime/s in court and/or in an impact statement
● Constant changes in criminal behaviour may result in outdated and ineffective sentencing laws,
and thus inappropriate and unjust outcomes
● Politically motivated agendas may result in the introduction of ‘tough on crime’ sentencing laws ‘to
protect and promote the safety of the community’
● Sentencing practices have traditionally focused on punishment and deterrence for adult
offenders, but this approach has not effectively reduced crime rates or rehabilitated offenders
● High-profile cases involving well-known personalities, or particularly horrifying cases, attract social
media attention and can lead to close public scrutiny of the sentence options meaning the
community may form opinions without a full understanding of the facts or of the sentencing
considerations judicial officers must consider
Civil law and justice
● A civil action arises when an individual suffers damage as a result of their rights being infringed by
the actions or omissions of another party; the individual (the plaintiff) affected by the breach is
responsible for taking the case to court
● A remedy is sought from the party (the defendant) responsible for the breach
● The law of torts includes actions for negligence, defamation, trespass or nuisance; a monetary
award of damages or compensation is the most common remedy in such actions
● Contract law involves a legally binding agreement between two or more parties; most civil
disputes concerning contract law involve a breach of contract
● In Australia, the legal system provides institutions and processes to resolve civil disputes, including
Consumer Affairs Victoria (CAV), the Victorian Civil and Administrative Tribunal (VCAT) and the
courts
Both the defendant and the plaintiff are entitled to justice in a civil case
● Fairness: natural justice (or procedural fairness) includes the rule against bias and the right to a
fair hearing
○ The principle of a fair and unbiased hearing is central to the idea of ‘fair play’ in a civil case
○ The community expects that the key features of the civil justice system will apply fairly to all
and that an impartial adjudicator (judge or magistrate) will produce an outcome
○ In our civil justice system, individuals are free to initiate legal actions to resolve disputes
about their rights
● Equality: the civil justice system seeks to achieve equality by treating participants uniformly
○ The processes and procedures and the rules of evidence and procedure ensure that all
parties are treated in a uniform manner
● Access: in the civil justice system, it is important to have access to information and legal
representation and advice
○ The justice system provides alternate means to resolve disputes (CAV, VCAT, the courts) in
an attempt to ensure that all individuals have access to the legal system
● A civil case is concerned with a dispute between two individuals and was initiated by one of the
parties
● A civil case aims to restore the injured party to their original position through a remedy
● In a civil case, the court has provided a remedy to the dispute (usually monetary compensation)
● The costs of a civil action are borne by the parties in dispute, and the party who loses the dispute
may be ordered to pay the costs of both parties
● In a civil case, the plaintiff has the burden of proof to present the necessary evidence to establish
a case against the defendant
● In a civil case, the standard of proof is the ‘balance of probabilities’, meaning that the plaintiff and
the defendant are each trying to prove that their version of the facts is more likely
Representative proceedings
● The term ‘representative proceedings’, also known as ‘class action’, refer to a claim brought by a
group of people and that arises out of a similar or related legal interest
● Representative proceedings help promote access to justice while providing a more time and cost
effective way to bring multiple cases to court
● The plaintiff(s) representing the group must demonstrate that
○ The claims arise from the same transaction or series of transactions
○ There is a common question of fact or law
○ It is convenient for the claims to be heard together
○ A claim is being made for damages
○ Each group member has consented in writing to be named in the case
● Representative proceedings improve access to the law because
○ Individuals with a claim do not have to file or fund a separate lawsuit
○ Individuals with claims too small to warrant an individual lawsuit may still have access to
the law for their case
○ Individuals have the opportunity to hold powerful firms and organisations accountable for
their actions
● Negotiation options: there are several ways to resolve civil disputes without going to trial,
including informal discussion (with legal representation), mediation, conciliation and arbitration
● Negotiation processes are particularly advantageous where parties wish to maintain a relationship
after the negotiation
● Before a plaintiff agrees to a negotiated settlement, they should consider
○ Decisions and settlements in similar cases
○ The monetary value of the case
○ The chances of winning
○ The possible delay in going to trial
○ Personal information that may be revealed at trial
○ The merits and weaknesses of the case
○ The possibility of having to agree to give up the right to pursue any other legal action in
exchange for a sum of money
● Negotiation processes are the least costly and most time-efficient dispute resolution processes
● Cost considerations: parties need to consider the cost of taking a civil claim and possible financial
consequences if they are unsuccessful; they should consider
○ What it will cost to bring a case to court
○ Whether the costs could be recovered by damages (if the case is won)
○ Whether the defendant would be able to pay the costs and damages if the case is
successful
● Limitation of actions: the plaintiff should consider that a variety of statutes put time limits on
initiating civil actions to
○ Ensure that cases are initiated while recollections of events are fresh
○ Provide for personal and business certainty
○ Ensure that plaintiffs act within a timely manner to resolve issues
● Limitation periods vary depending on the type of action claimed
○ For breaches of contract: within 6 years
○ For torts within six years of the date that the damage occurred
○ For personal injury tort: within 3 years of the date of ‘discoverability’; within 12 years of the
date of the act/omission that caused injury/death; special provisions are made for minors
where the act/omission is made by a parent/guardian; no limitation period for
acts/omissions relating to death/personal injury resulting from child abuse
○ Courts can grant an extension to the limitation period where it is ‘just and reasonable’ to do
so
● Scope of liability: the plaintiff must establish a causal link between the defendant’s action and the
harm caused and in a negligence case it must also be shown that it is appropriate for the scope of
the defendant’s liability to extend to the harm caused
● Enforcement issues: the plaintiff should consider that there could be difficulty in enforcing any
order or award of damages made by the court; the court can enforce an order or award by
ordering one of the following
○ A warrant for distress: the court can order that property owned by the defendant is seized
and sold to pay the amount owed
○ A garnishee order: this compels a third party who owes money to the defendant to pay the
plaintiff
○ An attachment of earnings: this is where the defendant’s employer deducts the amount
owing from the defendant’s wages or salary
○ Sequestration: this is a document that enables the court to appoint no fewer than four
people to seize or control land or property owned by the defendant until the defendant
complies with a judgement or until another court order is made
○ Bankruptcy or liquidation: the plaintiff can apply to have the defendant’s assets placed
under the control of an independent
○ Imprisonment: if the defendant fails to comply with a court order, the plaintiff can take
action and have the defendant imprisoned in addition to complying with the order
● Publicity: in some cases, especially for public personalities, publicity may be more damaging than
any other aspect of a court case
● Likelihood of success: in cases involving complex or unique circumstances, common law may be
uncertain and there is a risk in taking this type of case to court as the outcome is in doubt
● Time and inconvenience: a person should consider whether or not the possible results are worth
the time and inconvenience of making a civil claim
● Which court will hear the case: the Magistrates’ Court will hear cases for less than $100,000 and
the County and Supreme Courts will hear cases for unlimited amounts
● Institutions such as complaints bodies, tribunals and courts offer other avenues for dispute
resolution
● These processes are less expensive and more efficient than going to trial
● While these methods enable parties to have their say in the resolution, they rely on the goodwill of
both parties
● Using these dispute resolution methods means there is more privacy for both parties, as unlike in
the courts, mediation can be confidential so there is no public scrutiny of the process
● These methods have more of an informal atmosphere (in comparison to a court) which
encourages compromise and gives both parties an opportunity to state their own case, however
this informality can result in a more powerful party having an advantage
Mediation
● Mediation is a process in which an impartial third person (the mediator) helps the parties identify
the issues in dispute and facilitates discussion of possible solutions
● The mediator does not make suggestions or take sides in the discussion, ensuring that the parties
in dispute come to an agreement themselves
● This helps the two parties cooperate, which is helpful when the parties need an ongoing
relationship
● In mediation both parties can gain from the decision, unlike in a traditional court case where there
is a winner and a loser
● A decision made by mediation is not necessarily binding
● Mediation is used by a range of bodies in the community, including the courts and VCAT
Conciliation
● Conciliation is a process in which an impartial third person (the conciliator), who is an expert in the
relevant area of law, helps the parties identify the issues in dispute, facilitates discussion of
possible solutions and makes suggestions as to ways the dispute could be solved
● In conciliation both parties can gain from the decision, unlike in a traditional court case where
there is a winner and a loser
● A decision made by conciliation is not necessarily binding
● Because the conciliator is an expert, conciliation can be more expensive that mediation
Arbitration
● Arbitration is a process in which an impartial third person (the arbitrator), who is an expert in the
relevant area of law, hears the facts of the case and makes a binding decision; arbitration is
essentially a less formal version of a court case
● Arbitration is usually less expensive and more efficient than having a case heard in court, but not
always
● Arbitration can have the same disadvantages as having a case heard in a court (cost, time etc.)
● CAV is a government body that provides information and advice to consumers, traders, tenants
and landlords about their rights and responsibilities
● The purpose of CAV is to
○ Review consumer legislation
○ Provide advice and education on rights and responsibilities
○ Register and issues licences to businesses and occupations
○ Conciliate disputes
○ Enforce compliance with consumer laws
Conciliation at CAV
Institutions for resolving civil disputes: Victorian Civil and Administrative Tribunal
● VCAT is a tribunal that provides civil dispute resolution in an alternative way to the traditional
court system
● VCAT is split into four divisions - the Civil Division, the Human Rights Division, the Administrative,
Executive and Registry Division, and the Residential Tenancies Division - and each division handles
different types of cases, referred to as lists
● VCAT uses a range of processes to provide cost-effective, informal, fair, consistent, accessible,
timely and impartial dispute resolution
● VCAT is headed by a president, who is also a Supreme Court judge, then there are vice-presidents,
who are County Court judges, and members which are allocated to each list and are responsible
for settling individual disputes
● VCAT’s dispute resolution processes vary from list to list as different types of disputes require
different approaches
● Generally, VCAT dispute resolution methods include
○ Mediation
■ Before a hearing commences, VCAT can arrange for a case to be mediated free of
charge
■ If the mediation is successful and the case is settled, the mediator notifies VCAT and
VCAT then makes the necessary orders to give effect to the settlement
■ If the mediation is unsuccessful, the matter is referred back to a hearing
■ If a party does not attend the mediation, a decision can be made without them
○ Compulsory conferences
■ VCAT may direct the parties to attend a compulsory conference, which is an informal
pre-hearing used to
● Identify and clarify the issues in dispute
● Promote a settlement
● Identify the questions of fact and law to be decided
● Allow directions to be given concerning the conduct of the hearing (i.e.
witnesses)
■ If a party does not attend the compulsory conference, a decision can be made
without them
○ Hearings
■ A VCAT hearing is very similar to a court case
■ When a hearing is held, it takes place before a member of VCAT
■ Hearings at VCAT are heard in a fairly informal manner
■ VCAT is bound by the rules of natural justice
■ Although generally hearings are public, VCAT can order that the hearing is in private
■ VCAT can sit at any place in Victoria, or else a hearing can be conducted over the
phone, by a video call or entirely on paper (the parties do not have to make an
appearance)
■ Legal representation can be used depending on the type of case
○ Orders
■ Decisions made by VCAT are binding
■ VCAT also has the power to make a range of orders such as dismissing a claim, or
require that a party do or not do something
○ Appeals
■ Either party can lodge an appeal if they are dissatisfied with VCAT’s decision: if the
president or vice-president of VCAT made the decision, then the appeal is heard in
the Supreme Court - Court of Appeal, otherwise it would be heard by the Supreme
Court - Trial Division
■ When the appeal is heard, the court can either affirm, vary or set aside the order,
make an order that VCAT could have made in the proceedings, or send the case
back to VCAT to be heard again
Strengths of VCAT
Weaknesses of VCAT
There are different levels of courts for a number of reasons: the lowest court is the Magistrates’ Court,
then the County Court, then the Supreme Court - Trial Division, then the Supreme Court - Court of
Appeal, then finally the High Court
● Administrative convenience
○ A court hierarchy makes efficient use of the limited financial and physical resources
○ The courts have different jurisdictions so highly experienced judges do not waste their time
deciding small, simple cases and less experienced judges do not waste time and resources
trying to make a decision on cases that are too complex for them
○ Less complex cases can be heard quickly in the Magistrates’ Court which isn’t used to hear
longer, complex cases, meaning there would be less time to wait to have a minor case
resolved
● Appeals
○ The right to appeal is fundamental in the achievement of justice
○ Appeals are where court decisions are reviewed by other courts; the court hierarchy means
that there are higher courts with the power to overturn decisions if they are unjust
○ Also, the system of precedent is largely reliant on appeals
● Precedent
○ The doctrine of precedent is where a decision made in a court must be applied to all cases
of similar circumstances in lower courts
○ This process could not operate without the hierarchy of courts
○ The doctrine of precedent helps achieve justice by providing consistency in decisions
across the court system
● Specialisation
○ A court hierarchy enables the workload of the courts to be spread
○ It also allows courts to develop expertise in hearing particular types of disputes
● Time and money
○ A court hierarchy enables minor matters to be dealt with relatively quickly and in a
cost-effective manner
○ Minor cases can be heard in the Magistrates’ Court rather than in the County Court or
Supreme Court, where it may cost thousands of dollars and take years before the case is
finally determined
Strengths of courts
Weaknesses of courts
Courts VCAT
Decision making The judge makes a decision Parties are encouraged to come
to an agreement (otherwise the
decision will be made for them)
Effect on relationship with other The decision of the court is Parties are encouraged to come
party (relevant if an ongoing adversarial (winner and loser) to their own agreement meaning
relationship is required) which may cause further tension there is a possibility for a future
relationship
Attendance If the defendant does not If one of the parties does not
appear, the court can still make appear, VCAT can still make a
a decision decision
Appeal A decision made by a court can VCAT has limited rights to appeal
be appealed
● The Civil Procedure Act 2010 (Vic) guides civil pre-trial, trial and post-trial procedure in Victoria with
the purpose to facilitate ‘the just, efficient, timely and cost-effective resolution of the real issues in
dispute’ (s 7)
● Civil proceedings are usually started after the plaintiff has consulted a solicitor and the solicitor
may send a letter of demand to the defendant in the hope that the dispute will be resolved
without the need for litigation; the purposes of a letter of demand are
○ Informs the defendant that the solicitor is acting on behalf of the plaintiff
○ Establishes the nature of the plaintiff’s claim and the remedy sought
○ Indicates a time limit (usually about 2 weeks) within which the defendant must respond
○ Informs the defendant that a writ will be issued and served for failure to respond
○ Explains that if the defendant does not reply to the letter, or responds by denying the claim
and/or informs the solicitor of an intention to defend the claim, legal proceedings will
commence
● In Supreme Court proceedings, a writ informs the defendant of the nature of the claim, the
remedy sought, the date and time of the court hearing, and the mode of trial; the purposes of a
writ are
○ Informs the defendant of the case against them, the particular court in which the matter
will be heard and the mode of trial (either party may choose to have a jury)
○ Outlines the title of the action, the full names and addresses of the parties, and an
endorsement of the claim: the endorsement of the claim is either the formal statement of
claim or a statement that gives sufficient details of the nature of the plaintiff’s claim
○ Provides a timeline for execution of the writ (within 12 months), however, this time can be
extended by the court for up to an additional 12 months – if a writ is not served within the
prescribed time limit, it is deemed to have ‘gone stale’ and becomes invalid
○ Explains the protocol for issuing a writ either served on the defendant or the defendant’s
solicitor personally: the Supreme Court rules also allow for service by fax or telephone
● A Notice of Appearance tells the plaintiff and the court that the defendant intends to defend the
claim; the purposes of a Notice of Appearance are
○ Allows the defendant to choose whether they will represent themselves by filing a Notice of
Appearance or ignore the writ (this may result in a default judgment being made against
the defendant)
○ Informs the plaintiff that the action will be defended
● Pleadings provide for an exchange of information between the plaintiff and the defendant and
consist of a number of stages; the purposes of pleadings are
○ Outlines the precise nature of the claim: defines the issues in dispute and the remedy
sought by the plaintiff
○ Provides the defendant with a fair opportunity to deny, defend, admit or counter the
plaintiff’s claim
○ Provides both parties with insights into the opposing case and enables the parties to know
what evidence it will be necessary to have available – this provides procedural fairness
○ Prevents injustices that may occur if a party is taken by surprise
○ Avoids wasting court time with unnecessary questions that are not in dispute – this reduces
the cost of the claim
○ Allows the parties to weigh the strength of their case and helps the parties reach an
out-of-court settlement
● The statement of claim is the first document exchanged as part of the pleading process which
clearly sets out the precise details of the plaintiff’s claim; the purposes of a statement of claim are
○ Informs the defendant of the full details of the cause of action
○ States the facts alleged by the plaintiff
○ Informs the defendant of the remedy being sought or the amount of compensation being
claimed
○ Enables the court to assess if there is reason to strike out the case – this may occur if there
are insufficient facts to prove the claim
● The defence is sent by the defendant to the plaintiff and it sets out details of the defence; the
purposes of a defence are
○ Allows the defendant to present their version of the facts and defend any of the claims
being made against them: the defendant may admit to some allegations and deny others
○ Sets out the extent to which the defendant considers they are liable: where a defendant
files an appearance, a defence should generally be served within 30 days of receiving either
the indorsed writ or a statement of claim
● In some cases the plaintiff may send the defendant a reply to the defence claimed; the purpose of
a reply is
○ Allows the plaintiff to clarify any allegation made in the defence
● A counter-claim is the defendant’s response to a claim, in the form of a claim against the plaintiff;
the purpose of a counter-claim is
○ Provides the defendant with the opportunity to bring an action against the plaintiff,
claiming that the plaintiff was either partly or completely responsible for the damage or
injury
● The discovery process includes more information relevant to the case by including the inspection
of relevant documents such as copies of medical reports or reports by expert witnesses; the
purposes of a discovery process are
○ Allows the parties to request more information and inspection of documents relevant to
the facts of the case
○ Ensures that parties disclose all relevant documents in their possession to the other party
○ Parties can inspect the documents listed and demand that copies of documents relevant to
the case be produced; generally, a party cannot refuse to produce documentary evidence if
requested to do so by the other party, however the court has the power to prevent
unnecessary discovery
○ Promotes an out-of-court settlement, since the parties gain a greater understanding of
their chances of success in court
● Discovery can include asking specific questions, known as interrogatories; the purposes of a
discovery process are
○ Provides the parties with more detailed and specific information
○ Encourages an out-of-court settlement as parties gain greater understanding of
inconsistencies of the evidence in the case
○ Cross-checks evidence given in court with that presented in the interrogatories:
inconsistencies between information in the interrogatory and evidence given in court may
weaken an individual’s case
● Discovery can also include oral examination
● Case management is a system of rules introduced to reduce costs and delays in the court system
and enhances the ability of the civil justice system to achieve justice
● Case management allows
○ Each case to be assessed on the basis of its needs and complexity
○ Early planning, scheduling and control over proceedings by a judicial officer
○ Ongoing communication between the court and the parties
● The Victorian Civil Procedures Act 2010 (Vic) guides the development of case management rules
and practices
● A directions hearing allows the court to give directions about the conduct of the case; matters
dealt with at a directions hearing include
○ The state of the pleadings
○ Any disputes concerning the state of the pleadings, requests for details or complaints
○ Timeframes for discovery (documents, interrogatories, oral examination), mediation, filing
of court books (a compilation of documents relevant to the case)
○ Referral to mediation
○ Ordering the parties to provide each other with a list of witnesses and a summary of the
evidence of each witness
○ Fixing the date for trial or a further directions hearing
● In some civil matters, the Supreme Court provides that there may be two directions hearings
● The Supreme Court now refers all civil matters to mediation to promote out-of-court settlements
and reduce the backlog of civil cases waiting for trial
● At any point in the proceedings, the court may, with or without the parties’ consent, order the
parties to mediation or arbitration
● The purpose of a civil trial is to facilitate the just resolution of disputes, ‘as quickly, inexpensively
and efficiently as possible’
● The jury is not an essential feature of the civil trial process and is used in only approximately 2% of
cases in the County and Supreme Courts; their responsibilities include
○ Listening to and evaluating evidence
○ Determining questions of fact and applying the law as explained by the judge
○ Deciding fault and awarding damages
○ Remaining unbiased and making a decision on the evidence presented
● The jury safeguards the rights of the parties by reflecting community standards and thus
promoting justice that is in line with community values
● The random selection process and the checks to excuse potential jurors ensure a fair trial
● Under the Defamation Act 2005 (Vic) juries cannot determine damages in defamation cases
● The individual (plaintiff and defendant) is responsible both for preparing and for presenting their
case in court, including conducting the pre-trial stages and presenting the case in court
● The role played by parties in civil proceedings is referred to as ‘party control’; they decide all
matters relating to
○ Initiating the action and nominating the relevant court or dispute resolution body
○ If a jury will be used
○ Pre-trial processes
○ Identifying key issues to be presented in court
○ Researching and controlling the evidence, the law and its presentation
○ The type and number of witnesses to be called
● Parties to a civil action may decide to use a legal practitioner to present the case on their behalf
● The complexity and number of rules regulating court procedures and the admissibility of evidence
mean that parties may choose to use legal representation; legal representatives have a number of
responsibilities, including
○ Representing the parties in court
○ Protecting the rights of individuals by ensuring fair and equal treatment in court
○ Researching the facts and the relevant law
○ Deciding the order and presentation of relevant material and witnesses
Civil remedies
● The aim of civil remedies is to restore the parties to their position before the wrong
● The plaintiff will specify the type of remedy and the amount sought in the statement of claim
Damages
● The most common remedy for any civil action is an award of damages
● The court generally orders the defendant to pay a sum of money to restore the plaintiff to their
original position by providing compensation for the injury or damage suffered
● Damages fall into the following categories
○ Compensatory damages: the most common form of damages is an award that attempts to
compensate the plaintiff for the injury or damage suffered; compensatory damages are of
two main types
■ Specific or special damages: this type of award is made to compensate the plaintiff
for items that can be easily measured in terms of money, such as medical and
hospital expenses and loss of income
■ General damages: this type of damages are calculated according to the degree that
the injury or damage has affected the plaintiff’s lifestyle
○ Exemplary damages: sometimes the court may intend to make the defendant an example
to the rest of the community; in such cases, the defendant may be ordered to pay a large
amount of money, either to punish them or to deter others from acting in the same way
○ Nominal damages: in some instances the plaintiff may not have suffered any significant
injury, loss or damage and the principle of the matter is more important than the amount
of compensation required, so nominal damages are paid to reinforce the legal interest of
the plaintiff
○ Contemptuous damages: in some cases the plaintiff may have a valid claim and may even
be successful in exercising such rights, however, the court may not be particularly
sympathetic and consequently, the plaintiff may be awarded an amount that may seem to
make a mockery of the court action
● In some instances Acts of Parliament, such as the Wrongs Act, place restrictions on the amounts
that can be awarded which may mean that the plaintiff is not fully compensated for the damage
suffered
Other remedies
● An injunction is a court order that requires the defendant to do something or to refrain from
doing something
● A specific performance order requires that the defendant fulfil a contract rather than pay
damages
● Restitution requires the defendant to return property to the plaintiff
● Rescission cancels a contract in circumstances where the plaintiff can be returned to their original
position
● To evaluate the effectiveness of the civil justice system we need to consider the extent to which
these procedures contribute to justice
● The critical tests for our justice system are whether it provides for fairness, equality and access
Costs
● A number of options are available to help individuals with the cost of legal assistance
○ Victoria Legal Aid offers free advice on how to resolve legal problems
○ Community legal services help by recommending free services for those facing economic or
social disadvantage
○ The Office of Public Advocate advises on topics affecting individuals with a disability
○ The Victorian Aboriginal Legal Service offers free advice to the Indigenous community
○ The Law Institute of Victoria assists with referrals to member solicitors in relevant areas of
law
○ Consumer Affairs Victoria provides advice and information to business and consumers
● A judgment will usually provide for the payment of legal costs; in most cases, the unsuccessful
party will have to pay the legal costs for both parties
● The costs of initiating civil actions can be prohibitive, and this barrier means that many citizens are
denied access to justice
Timely resolution of disputes
● The time it takes to resolve civil disputes has been an ongoing concern for those seeking to
improve our civil system of justice, as delays can result in further suffering for the plaintiff
● If disputes are not settled reasonably quickly, people may lose respect for the law and take the law
into their own hands
● Also, unnecessary delays in resolving disputes can result in hardship for individuals and the
community
● Civil pre-trial procedures help speed up the resolution of disputes by allowing the parties to clarify
issues
● Alternatively, pre-trial procedures may result in the parties reaching an out-of-court settlement
and avoiding going to court altogether
● Directions hearings allow the courts to monitor the progress of the pre-trial procedures
● Delays can be due to the actions of the parties, the range of pre-trial procedures that need to be
completed, or the workload of the courts
Accessibility
● The growing demand for legal aid services means that not everyone is able to get the assistance
they need
● The legal system provides a number of dispute resolution processes: depending on the nature of
the dispute, the parties may choose to use one of a range of dispute resolution methods or take
an action through the courts; alternative dispute resolution methods are relatively cheap and
quick
● The legal system provides a range of institutions to resolve disputes: the courts are structured so
that more complex cases are heard in the higher courts and minor disputes are heard in lower
courts, however, taking a civil dispute to court is costly
● The legal system provides for a system of review: in some circumstances individuals who feel that
they have not been dealt with fairly may appeal their case to a higher court, however, the right of
appeal is limited if the dispute is heard by a tribunal or the Magistrates’ Court