Answers Booklet 1.1 Unit 4

1. Answers Booklet 1.1 Unit 4

2. Civil actions are…The purpose and aim of civil actions • Civil actions are disputes between two or more individuals or groups taking a person to court if they believe that their rights have been infringed. • The purpose of civil action is to return the person or party (plaintiff) to their original position before their rights had been infringed. • Civil action can be heard before the courts, tribunals and through alternative dispute resolution methods. • Civil action can be taken for torts such as defamation, nuisance and contract law. • Judicial determination refers to the judges capacity to make a decision/ruling on the case before him/her.

3. Describe five differences between civil law and criminal law • There is overlap between criminal law and civil law as actions can give rise to a criminal prosecution as the action was against the criminal law and harmed society as a whole as well as a civil action instigated by a victim in order to return them to the position held before the action. • A person bringing action in criminal is prosecution whereas person bringing the civil action to court is the plaintiff. • In a criminal case, the main aim is to protect society whereas in a civil case the aim is to regulate the conduct between the parties involved and provide compensation. • In criminal law the aim is punish the offender through sanctions such as jail whereas in a civil case the aim is to restore the person to their original position through remedies such as monetary compensation. • In a criminal case, the standard of proof is guilty beyond reasonable doubt whereas in a civil case the standard of proof is on the balance of probabilities.

4. Explain what is meant by original jurisdiction • Refers to the power that the courts have to hear cases arising from particular areas of law. Jurisdiction also refers to the geographical boundaries of the courts power. • Original jurisdiction is where a matter has been taken to the court for the first time and the court has the power to hear the case for the first time.

5. Explain what is meant by appellate jurisdiction • The power of the court has to hear a case on appeal when a party is not happy with the decision made by the court with the original jurisdiction. • People can appeal on: • Point of law • Severity of sentence or remedy awarded • Conviction

6. Could a one-court system work? Justify • Due to the demands of court hearings and appeals with a one court system there would be an immense backlog of cases and many people’s cases would not be resolved in a timely way. • It would prevent the doctrine of precedent from operating. The doctrine of precedent enables judges to follow decisions made by a higher court, which allows for consistency in the law in that judges are bound to follow the legal principles established in cases in the same hierarchy with similar fact situations. It also allows for predictability in the law as judges tend to follow past decisions so a party can look to previous cases to predict/determine the outcome of their case. • Can’t appeal – decision is final. This undermines the idea of ‘fairness’ in the legal system. • Positive – less complicated in that people would know where to go to have their problem resolved. • Doesn’t allow for specialisation.

7. The court hierarchy allows for doctrine of precedent to operate • The court hierarchy allows for decisions made in higher courts to be binding on lower courts in the same hierarchy. The ratio decidendi (reason for the decision) must be followed by courts lower in the court hierarchy and this establishes a precedent that must be followed in the future. This establishes consistency………….. And predictability…………in the law.

8. The court hierarchy allows people to appeal a decision made in court • When someone is dissatisfied with the decision and has grounds for appeal the court hierarchy allows for that decision to be taken to a higher court and tested in another court of law. This allows for fairness in the legal system and for the judiciary to correct any mistakes in their decision.

9. The court hierarchy provides for administrative convenience • Administrative convenience allows for the more severe cases (indictable offences) dealing with complex areas of law to be heard in the higher courts and less serious cases are heard in the lower courts. This means that cases are distributed between the court hierarchy resulting in less delays in decision making and reduced administrative burden on the lower courts.

10. The court hierarchy allows the courts to specialise • The court hierarchy allows the courts to develop their own area of expertise so that the lower courts are familiar with less serious cases and the higher courts are familiar with dealing with serious and complex cases and questions of law.

11. Some advantages/disadvantages of court hierarchy

12. Magistrates’ Court criminal jurisdictions • The Magistrates’ Court has criminal jurisdiction over: • Summary offences • Indictable offences heard summarily • Committal hearings • Issuing warrants • Bail applications

13. Magistrates’ Court civil jurisdictions * The Magistrates’ Court can hear all civil disputes up to $100,000 (if it is less than 10,000 the Magistrates’ Court can order complaints to arbitration).

14. Appeals from the Magistrates’ Court – criminal cases • Can appeal to the County Court against a CONVICTION or the SEVERITY OF A SENTENCE. • The County Court can: • Reduce the sentence • Increase the sentence • Set conviction aside and dismiss the case. • Can appeal to the Supreme Court on points of law. • The Supreme Court can: • Overturn the magistrates’ decision because there was an error in the law • State the law on the issue and send it back to the Magistrates’ Court • Discharge the appeal and allow the decision in the Magistrates’ Court to stand.

15. Appeals from Magistrates’ Court – civil cases • Cannot appeal to the County Court but can appeal to the Supreme Court on a point of law. • The Supreme Court judge may decide to: • Reverse the decision • State the law on the issue and send the case back to the Magistrates’ Court to be dealt with • Discharge the appeal and allow the decision of Magistrates’ Court to stand.

16. Specialist divisions of Magistrates’ Court • The Drug Court. - The Drug Court is responsible for supervising the treatment or support to offenders who have drug problems, and have committed an offence while under the influence of drugs or to support a drug habit. The main aim of the Drug Court is to rehabilitate offenders from drug or alcohol addiction and break the cycle of offending.

17. The Koori Court Division • The Koori court was established to provide fair, equitable and culturally relevant and sensitive justice services to the Aboriginal community. The court aims to operate with as little formality and technicality as possible and must ensure that the proceedings are able to be clearly understood by the accused, their family and any member of the Aboriginal community. This is one way in which the Koori Court provides culturally relevant justice services.

18. The Family Violence Division • Simplify access to the justice system for people affected by family violence. • Juris – over matters to do with civil proceedings, damages for personal injury. Criminal proceedings for summary offences and application for crime compensation, intervention orders.

19. Neighborhood Justice Centre • The NJC is a one stop court that offers access to legal assistance and services such as drug, alcohol and mental health assistance, legal aid, mediations and staff to address the needs of women, youth and Koori people. It has shared jurisdiction with the Magistrates’ Court, Children’s Court, Family Violence Court, Koori Court, VCAT, community corrections.

20. Sexual Offences List • Provides specialised approach to these kinds of cases and the recognition of the difficulties faced by victims in these kinds of cases.

21. The County Court – criminal jurisdiction • Indictable offences such as: rape and serious assault. It cannot hear murder, child homicide attempted murder, treason.

22. The County Court – civil jurisdiction • The County Court has unlimited jurisdiction to hear all civil disputes, irrespective of the amount claimed. The County Court can also hear claims against local councils for loss or injury sustained while using roads, lands under the control of the council.

23. Appeals from County Court • Can hear appeal from Magist Court for appeals against severity of sentence or conviction. • If an appeal against conviction is successful it overturns the original decision made in the lower courts. The case is dismissed. • If an appeal against a penalty is successful the penalty may be reduced. • Does the County Court have the jurisdiction to hear appeals in civil matters? No. • County Court can appeal to the Court of Appeal for criminal matters on points of law, severity or leniency of a sanction. • County Court can appeal to the Court of Appeal on a civil matter for points of law, questions of fact and damages.

24. Specialist division of County Court • Koori County Court The main aim of the Koori County Court is to ensure greater participation of the Aboriginal community in the sentencing process. This is achieved through Indigenous elders and others such as Koori Court officer providing Aboriginal and Torres Strait Islander people with a more culturally relevant justice process.

25. The Supreme Court • Deals with the most serious matters. It is divided into two divisions – Trial Division and Court of Appeal.

26. The Supreme Court – criminal jurisdiction • The Supreme Court hears the most serious of cases such as murder, attempted murder, defensive homicide, child homicide, treason.

27. The Supreme Court – civil jurisdiction • The Supreme Court has unlimited civil jurisdiction and can hear civil cases claiming any amount.

28. Appeals from the Supreme CourtThe Court of Appeal • In criminal cases, the Supreme Court can hear appeals from the Magistrates’ Court on a point of law. • In civil cases, the Supreme Court can hear appeals from the Magistrates’ Court on a point of law. • In civil matters, the Supreme Court (Trial Division) can appeal to the Supreme Court of appeal on a point of law, question of fact and damages sought. • In criminal matters, the Supreme Court (Trial Division) can appeal to the Supreme Court of Appeal on points of law, severity of a crime or leniency of a sentence.

29. Criminal jurisdiction of The Court of Appeal • A person who has been found guilty in the County Court or Supreme Court may appeal to the Court of Appeal on: • A point of law • A conviction • The severity of the sanction.

30. Civil jurisdiction of the Court of Appeal • The Court of Appeal hears appeals in its civil jurisdiction from the County Court and a single judge of the Supreme Court. Grounds for appeal in a civil matter include: • A point of law • A question of fact • The amount of damages

31. Case transfers • Courts normally hear cases in their own jurisdiction. Occasionally, due to the complexity or seriousness of a case, or to spread the workload courts cases can be transferred between the Magistrates’ Court, County Court and Supreme Court.

32. Additional notes