What are the three elements of an effective legal system and how can they be achieved?

(Hint: F.A.T)

1. Entitlement to a fair and unbiased hearing
   - Everyone should be treated fairly before the law and the adjudicators should be independent and unbiased. It is also important for the accused person to be treated as being innocent until proven guilty 
2. Effective access to the legal system
   -Everyone should be aware of their right to take their dispute to a court or tribunal. This also includes having the ability to appeal a case. 
3. Timely resolution of disputes
   -Pre-trial procedures help to ensure that when a case goes on trial it will be dealt with in a timely manner because all the facts within the case should be clear and the evidence of sufficient weight. 

How did F.A.T apply to the Dupas case and how were the elements achieved for the accused and the victim?

• the right to a fair and unbiased trial: 
• publicity of Dupas' previous convictions and how the facts of all the cases were quite similar - "innocent until proven guilty"
• effective access to the legal system:
• Dupas abusing his right to appeals - cost he caused the state and delays he placed on his conviction 
• Supreme Court reforms allowing "frivolous" cases to be dismissed without the need for a hearing
• timely dispute resolution:
• Dupas prolonging the outcome of the case by appealing - over thirteen years there were two trials, a High Court appealand a million-dollar reward to finally have Peter Dupas convicted of Mersina's murder

What are some examples of criminal pre-trial procedures within the Dupas case?

• What is bail?
• Who can grant bail?
• What is the purpose of bail? 
• Which areas of an effective legal system does bail uphold?

• Bail is the release of an accused person awaiting a hearing or trial on the undertaking that the person will attend the hearing or trial. This often involves placing money with the court that will be forfeited if the accused fails to attend court; a surety will sometimes post someone's bail for them.
• Bail can be granted by a policer officer who was present at the station when the accused person was charged, a magistrate at a bail hearing in the Magistrate's Court, and by a bail justice.
• Bail upholds the presumption of being "innocent until proven guilty" and allows the accused person with sufficient time to plan with a legal team before the trial.
• Bail upholds the the right to an entitlement to a fair trial through maintaining that the accused person is seen as innocent until proven guilty. Bail also through giving the accused person better access to legal representation upholds the notion of effective access to the legal system which furthermore helps to provide timely resolution because there has been sufficient planning time.

• What is remand?
• What is the effect if an accused person is held in remand?
• When would it be necessary for someone to be held in remand?

• Remand occurrs when an accused person isn't granted bail and is therefore held in custody pending the final decision in a trial or until bail is granted.
• It is considered very serious if a person is held in remand because it means that person is denied their right to freedom while still presumed innocent.
• A person may be refused bail and therefore held in remand if they are charged with murder or treason or if they are already in custody for another crime - outlined in the Bail Act 1997 (as amended by the Criminal Procedure Act 2009 (Vic.)). A person may also be held in remand if the court believes the person is at risk of posing a danger to the community/re-offending. 

• What is the purpose of a committal hearing?
• How do committal hearings contribute to achievement of an effective and efficient legal system?

• Committal hearings are held in the Magistrates' Court and help to determine if a prima facie case exists - whether the evidence is of sufficient weight to support a conviction by jury at the trial of an indictable offence. This is determined through deciding whether the evidence against the defendant is admissible or not.
• Committal hearings contribute to the right to a fair trial because it helps to determine if the evidence that will be used in court is useful or not before the trial process begins. By weighing up the evidence and having this process, it demonstrates effective access to the legal system because the committal hearings process takes some of the stress off the trial process. Because committal hearings determine the evidence within a case, any case without sufficient evidence will not be sent to trial which can therefore remove delays for other cases trying to attain justice.

• What is meant by a 'direct indictment'?
• What is the effect of a direct indictment on the defence party and the elements of an effective legal system. 

• A direct indictment can be ordered by the Director of Public Prosecutions. The process bypasses the procedure of a committal hearing.
• A direct indictment can make it hard for the accused person to gain access to a fair and timely trial. This is because it is decided that there is evidence of sufficient weight to convict the defendant without the evidence having been analysed by the defendant to determine if it is admissible. This can put a delay on the trial proceedings because the evidence can be inadmissible without it having been determined before going to court which can make it difficult for the judge/jury to make rulings. This also makes it difficult to attain effective access to the legal system because of the bypassing of the committal proceedings.

Because a hand up brief contains all the written evidence to be used in trial, it removes the need for oral evidence to be used within the committal process. This can speed up the trial process because the witnesses and accused person only need to provide any oral evidence only once, in open court at trial.

Explain these criminal sanction purposes:

• Punishment
• Deterrence
• Rehabilitation
• Denunciation
• Protection of community

Evaluate (strengths and weaknesses) the purpose of imprisonment.

• Refer to at least two purposes: punishment, deterrence, rehabilitation, denunciation, and protection

Imprisonment is generally handed down as a sanction of last resort because it removes a person's freedoms and liberties however, it aims to protect society from dangerous criminals. Imprisonment allows also for criminals to gain access to rehabilitation through various programs that are offered. These programs aim teach offenders how to deal with their addictions in order to help them get back in to a normal life after serving their sentence. However, because of other criminals within the prison, it is possible that rehabilitation will not be effective because of the influence of such criminals (recidivists) and the difficulty that ex-prisoners do face when adapting back to "normal" life. By sentencing a person to a period of imprisonment (for such crimes as a violent rape), which may be considered harsh, the court aims to demonstrate that there is a strong disapproval of that type of behaviour (denunciation).

Explain these types of sanctions and how their purposes.

• Refer to at least two purposes: punishment, deterrence, rehabilitation, denunciation, and protection

Pre-trial procedure promote out of court dispute resolution because if a decision is made out of court by the parties to the dispute, there is a higher level of satisfaction. This is because the parties know that they had a say in the outcome rather than having a decision imposed on them.
Pre-trial procedures also enable the key issues and facts of the case to be clearly understood before the commencement of the case so that there is no confusion. This may also lead to the parties re-considering taking that case to court.

• Define the term 'pleadings'.
• Explain two general purposes of pleadings.

• Pleadings are documents exchanged between the parties to a civil dispute to establish the reason for the claim and which facts are in dispute. Pleadings involve a writ, a statement of claim, statement of defence (and counterclaim if there is one and further and better particulars.
• Pleadings give the court written evidence of the case because all the information and facts about the case is combined in to one document. This helps to avoid delays in the court process because the court won't have to have the parties go searching for certain facts. Pleadings also assists in reaching an out of court resolution through the encouraged communication between parties and the breakdoen of facts.

Explain the terms:

• Writ
• Statements of claim
• Notice of appearance
• Defence
• Counterclaim
• Further and better particulars

·        Writ: Main method of commencing proceedings in the Supreme Court. The document explains to the defendant that an action is being brought against them, informs the defendant of where the trial will take place as well as the mode of the trial (whether it will be heard by a judge alone or a judge and jury).

·        Statement of claim: Usually attached to the writ and explains the nature of the claim and the remedy or relief sought.

·        Notice of appearance: Informs the court and the plaintiff that the defendant wishes to defend the claim.

·        Defence: Sets out a response to each of the allegations contained in the plaintiff’s statement of claim.

·        Counterclaim: Often attached to the end of a defence, a counterclaim is an optional step in the pleadings process which allows for the defendant to claim against the defendant. For example, the plaintiff may be claiming that the defendant owes $20,000 for services provided but not paid for. The defendant may counterclaim that the plaintiff did not provide good quality service and therefore order that the plaintiff complete the services to the appropriate standard.

·        Further and better particulars: This is a request for further details. For example if the plaintiff may claim within the statement of claim that there was a contract between the plaintiff and defendant. The defendant may request further and better particulars of this ‘contract’ which means that they want details about when the contract was made and in what circumstances – whether it was in writing or oral, and any other details such as the terms of the contract.

What is the purpose of a directions hearing  within civil pre-trial procedures?

• explain the term and refer to the elements of an effective legal system

(Do not confuse directions hearings with committal hearings. Committal hearings are a process in criminal pre-trial proceedings where directions hearings are in civil pre-trial proceedings.)

Define the term 'discovery' and explain at least two of its general purposes.

Discovery enables the parties to a civil dispute to gain access to all information that may not yet be clear to them. The purpose of the discovery process is for both parties to disclose all relevant material and documents to the other side, reduce the element of surprise at trial, ensure all parties have copies of relevant documents, allow each party to determine the strength of the other side’s case and determine their likelihood of success, and assist in reaching out-of-court settlement where appropriate.

Explain the terms:

• Discovery of documents
• Interrogatories
• Discovery by oral examination
• Medical examination

·        Discovery of documents: Either side may ask the other side to disclose any relevant documents that are or have been in their possession. It is common practice now rather than serving a notice for discovery that the court instead orders the parties to make discovery at the first directions hearing. The party who is served with the notice of discovery must prepare an affidavit of documents however this is now commonly filed as a list of documents rather than as an affidavit. The discovery of documents stage assists the parties in finding out whether particular documents in possession of the other party are strong enough to establish a claim or defence.

·        Interrogatories: Either side may serve interrogatories which require the other party to disclose any information through answering questions relating to the known facts of the case. The process saves court time and expense by dealing with matters before going to court and by reducing the element of surprise. The answers provided by the opposing party can be referred to in the trial and can be used to question credibility of witnesses.

·        Discovery by oral examination: As a result of the interrogatories, a party may request that the other party answer some questions. If consented to in writing by the court, there questions are put to the arty as if the party were being examined-in-chief (questioned by their barrister).

·        Medical examination: If the plaintiff is claiming damages for bodily injury, the defendant may ask the plaintiff to submit to appropriate examination by a medical expert or experts at specified times and places. This situation may be reversed if a counterclaim has been made by the defendant.

A remedy is the desired outcome of a civl dispute such as the awarding of damages or an injunction.

Remedies aim to restore the plaintiff to their original position prior to the civil wrong.

Explain these different types of damages:

• Compensatory:
• Specific damages:
• General damages:
• Aggravated damages:
• Exemplary:
• Nominal:
• Contemptuous:

• Compensatory: most common sought damages with aim to restore the party whose rights have been infringed to the position they were in before the infringement by awarding them money. 
• Specific damages: can be given a precise monetary value. These can be listed, such as medical expenses or loss of wages - easily quantifiable.
• General damages: will be assessed by the court according to the magnitude of the wrong and the long-term consequences of the wrong, taking in to consideration such matters as future loss of wages, long-term job prospects and pain and suffering (past and future). They are a general estimate and not readily quantifiable.
• Aggravated damages: can be awarded to compensate the plaintiff further if the court believes that the defendant's conduct injured the plaintiff's feelings by causing humiliation or insult.
• Exemplary: (punitive damages, vindictive damages) The aim of exemplary damages is to punish and deter where conduct is wanton, malicios, violent, cruel, insolent or in scornful disregard for the plaintiff's rights. - Seeks to punish
• Nominal: only a small amount is paid by way of damages. The plaintiff may be seeking to make a point about being legally in the right to show their rightshad been infringed, but may not be seeking a large amount of compensation. E.g.: in a defamation case where the plaintiff's character has been maligned but little damage is done to their reputation.
• Contemptuous: the court may find that the plaintiff has legal right to damages but not the moral right. Small amounts may be awarded.

What is an 'injunction' and what is the purpose of an injunction?

• Distinguish between mandatory and restrictive injunctions
• Explain the difference between perpetual and interim/interlocutory injunctions

An injunction is a court order directing someone to stop doing something or to do something. Injunctions aim to rectify a situation caused by the person who was found to be in the wrong.

A mandatory injunction is where a person is ordered to do a particular act, such as performing their part of the contract they have breached. Whereas a restrictive or prohibitive injunction orders a person to stop (or refrain from) doing something, such as pulling down a building, or an ex-spouse visiting a child at school.

Perpetual injunctions are permanent injunctions which are granted after the case has been heard whereas interim or interlocutory injunctions are only temporary. They are awarded quickly and only apply until a final court decision has been made after a proper hearing. Interim injunctions may be necessary if it is required to act quickly such as if someone has already started to pull down a historic building.

Explain the standard and burden of proof in criminal law and civil law.