U3O1 Criminal Justice System
In a criminal case, who generally bears the burden of proof, and, what is the standard of proof?
The standard of proof is 'beyond reasonable doubt'.
Who generally bears the burden of proof in a civil dispute, and what is the standard of proof?
The plaintiff generally bears the burden of proof. The standard is on the balance of probabilities.
What is the term for the Crown’s formal approval of a bill after it has passed both houses of parliament?
Royal Assent.
New devices, programs and equipment create a problem that existing laws do not adequately address. Identify the reason for law reform illustrated here.
Advances in technology.
When is Ms Booth's birthday?
September 25
An accused person says, “Every criminal offence gives me the right to a jury.” Explain why this is incorrect.
Summary offences are heard by a magistrate without a jury. A jury generally determines guilt when an accused pleads not guilty to an indictable offence tried in the County or Supreme Court.
A business continues to use another business’s protected logo. The affected business wants the conduct stopped. Identify the most suitable remedy and explain its purpose.
An injunction, specifically a restrictive injunction, could order the business to stop using the logo. The purpose of this is to rectify the situation by preventing continual harm.
A valid Commonwealth law conflicts with a Victorian law. Under section 109 of the Australian Constitution, what happens?
The Commonwealth law prevails, and the Victorian law is invalid to the extent of the inconsistency. This does not necessarily invalidate the entire Victorian Act.
What TWO requirements make up the double majority needed for a referendum to succeed?
1. A majority of voters (over 50%) voting 'yes' across Australia, including territories.
2. A majority of voters (over 50%) in at least four of the six states must vote yes.
Who am I? I help resolve consumer disputes in Victoria, often through conciliation, but cannot impose a binding outcome.
Consumer Affairs Victoria (CAV).
Explain one benefit and one limitation of plea negotiations.
Answers may vary.
E.g. Benefit: A guilty plea can avoid a trial, reducing costs, delays and the stress of giving evidence.
Limitation: An accused may feel pressured to plead guilty or victims may feel that reduced charges do not adequately reflect the offending.
Outline TWO differences between mediation and arbitration.
In mediation, the third party facilitates the parties to negotiate but does not impose a decision, the parties control whether they settle.
Mediation is generally free and the mediator does not need to be specialised.
In arbitration, the arbitrator hears the parties’ cases and makes a binding decision.
Arbitration generally costs money and the arbitrator is specialised.
A judge identifies a binding precedent but finds that the current case has different material facts. What can the judge do, and why?
Distinguish the precedent. The difference in material facts means the earlier legal principle does not have to be applied to the current case.
Correct this statement: “The 1967 referendum gave Aboriginal people the right to vote.”
It did not grant voting rights. It removed the exclusion of Aboriginal people from the Commonwealth’s race power in section 51(xxvi) (allowing the Commonwealth to legislate for Aboriginal people) and removed section 127, which excluded Aboriginal people from the population.
Spot the mistake and correct it: “A victim impact statement allows the victim to decide the offender’s sentence.”
A victim impact statement informs the court about the harm caused by the offence. The judge or magistrate determines the sentence, taking relevant sentencing factors into account.
An offender receives a community corrections order (CCO) requiring treatment for drug addiction and unpaid community work. Justify two purposes this sanction could achieve.
Answers may vary.
E.g. Rehabilitation: Treatment addresses an underlying cause of offending and may reduce reoffending if there are conditions attached to the CCO.
Punishment: Unpaid community work and other conditions restrict the offender’s freedom and impose a burden penalising them for the offence committed.
A person has a strong civil claim, but the defendant has no money or assets. Identify the relevant factor to consider before starting the claim and explain why it matters.
Enforcement issues. Even if the plaintiff wins and receives an award of damages, they may be unable to recover the money. The costs of pursuing the claim could outweigh what they can realistically recover.
Explain how the separation of powers acts as a check on Commonwealth Parliament in law making. Use an example in your response.
Judicial power held by the Courts is exercised independently of Parliament. Courts can determine whether Parliament has acted beyond its law making powers (ultra vires) and declare legislation invalid, preventing Parliament from making any laws it wants to.
Using an example, discuss the ability of the VLRC to influence law reform.
Answers will vary.
A court interprets the word “vehicle” in an Act to include electric scooters. Has the court changed the wording of the Act? Explain one effect of its interpretation.
No. The wording remains unchanged, but the court has clarified its meaning. The interpretation brings electric scooters within the provision’s operation and may establish a precedent for future similar cases.
An accused cannot afford a lawyer and does not qualify for funded legal representation or pro-bono assistance.
Explain how this could undermine TWO principles of justice.
Fairness: They may not be able to present their case in the best light or participate in processes such as pre-trial procedures, cross examination, opening and closing addresses etc.
Access: They may struggle to understand their rights and will not be able to engage in the process on an informed basis.
Equality: The accused will likely be at a disadvantage because the Prosecution (represented by the state) has unlimited funds
OTHER ANSWERS ACCEPTED!
Hundreds of consumers suffer loss from the same defective product and bring forward a class action in the Supreme Court. Discuss one way this could impact access.
Strength: Sharing costs and using a lead plaintiff can make pursuing claims more achievable, including claims too small to bring individually.
Limitation: Class actions take up significant court time and resources hindering access for other cases. Class actions can be a large financial burden on the lead plaintiff if there is no litigation funder.
“Parliament and courts work together to develop the law.” Explain the relationship of Codification referring to the Mabo case.
Courts can develop common law, which parliament can then codify by incorporating it into legislation. In Mabo v Queensland (No 2) (1992), the High Court recognised native title in Australian common law. Parliament subsequently passed the Native Title Act 1993 (Cth), giving statutory recognition and protection to native title. This demonstrates how parliament can reinforce and build on legal principles established by courts.
“A parliamentary committee inquiry will always lead to law reform.” Evaluate this statement using a parliamentary committee inquiry you have studied.
Answers will vary - suggestions: Parliamentary committees can influence law reform by gathering evidence, consulting experts and making informed recommendations. However, recommendations are not binding, and parliament may reject them, adopt only some or delay reform. Therefore, an inquiry does not guarantee law reform, as its influence depends on parliament acting on its recommendations.
Identify the factors that affect the ability of courts to make law.
Discuss how one of these factors affects the ability of courts to make law.
Cost, time, Standing, Judicial Conservatism, Judicial Activism, Doctrine of Precedent