Course like a Trial process with many case examples and notable trials discussed

Transcription

1 "THE LAW OR JUSTICE" SYNOPSIS OF U3A COURSE AN OVERVIEW/OUTLINE 1. Introduction and Explanation: Opening and Welcome to U3A course Course like a Trial process with many case examples and notable trials discussed Participation Duration Practical course on whether, and if so, how and why legal system works Chatham House Rule Aim of course is to raise awareness, enlighten, discuss and analyse No intention to give legal advice and not permitted [anymore] to do so End of course is a 2 hour written examination [LOL = only 1 hour oral!!!] Feedback, suggestions and fair criticism encouraged and welcomed 2. Administration of Justice: Westminster system of government separates Legislative, Executive and Judicial powers Parliament, the Executive & the Heads of the Public Service, and the Courts Administration of Criminal and Civil Justice Rule of Law Domestic Law International Law/Treaties Conflict between Executive and Judicial power [ R v Peter Robert Tait] < the Hawthorn connection > 1

2 3. Hierarchy of the Courts/ the Judicature and their Jurisdictions: Federal [High Court, Federal Court, Family Court, Fed Magistrate's Court] State [Supreme Court, Court of Appeal, County Court, Magistrate's Court] Federal Administrative Appeals Tribunal, VCAT, Human Rights & Equal Opportunity Commission Specialist Courts [Family Ct., Coroner's Ct, Children's Ct, Koori Court] Appeal process [by right or by leave], where to and how. Conflict of Laws between Commonwealth and States/Territories e.g. the "Same Sex Marriage case" [the Commonwealth v ACT] Dec Royal Commissions [Federal and/or State] 4. Open justice: Justice must not only be done, it must be seen to be done Justice delayed is Justice denied Courts and Tribunals are "open to the public" Open Courts Act 2013 [including Practice Note 4/2013 & Media Release] Suppression Orders and Pseudonym Orders Journalist Privilege relating to identity of informants [s.126 Evidence Act] Public records, access to and discretionary considerations to deny access See: Re Proceeding No 1451 of 1952 [2011] VSC 545 per Dixon J. Natural Justice and Procedural fairness Bias [actual and/or apprehended] and its outcome Contempt of Court Publication of decisions [criminal, civil and appeals]= citing Authority 2

3 Self represented litigants Vexatious litigants Austlii Media 5. Judges, Magistrates, Tribunal Members and Legal Practitioners: Appointment Removal Independence Statutory retirement age Salary and Pensions Solicitors Barristers Prosecutors & Public Defenders Governance of the Profession [LIV, Bar Council, Legal Services Board, and S/Ct] Admission to practice as an "Australian Legal Practitioner" Legal Practice Act Show me the money: Retaining a Solicitor/Barrister Costs agreements Court scales of costs Solicitor/client costs Party/party costs Indemnity costs Pro Bono representation

4 User pays process in civil litigation Litigation Funders [IMF Australia etc]: sharing the "bootie" 7. Wigs and Gowns and/or Lounge Suits: Whether Counsel wears a wig and gown, or only a gown; or a lounge suit, will be determined by which court in the hierarchy one appears. 8. Criminal jurisdictions: Presumption of innocence, the right to Bail and a fair trial Fundamental human right as to liberty, and its modification by legislation Summary jurisdiction in Magistrate's Court and the Children's Court Indictable offences triable summarily in the Magistrate's Court Indictable offences triable on Indictment in the County or Supreme Court/s Committals before trial in Magistrate's Court and Hand up Briefs Trials before a criminal Jury: the adversarial process Juries Evidence Standard of proof: the notion of "being satisfied beyond reasonable doubt" Onus of proof Prosecution Defence Fitness to plead and stand trial> fundamental to a fair trial Crimes (Mental Impairment and Unfitness to be tried) Act 1997 re: accused Witnesses Judicial discretion Admissible and Inadmissible evidence 4

5 Unanimous verdicts and Majority verdicts in criminal jury trials Pleas of guilty and reduction in sentencing outcome for pleas of guilty Plea bargaining Pleas in mitigation after conviction Victim Impact statements Sentencing [an in depth analysis and examination] Sentencing Act 1991 [as amended] Prior Convictions Maximum sentences Minimum sentences Mandatory sentencing Parole, the revised Parole Board and the new offence of breaching parole Confiscation of the proceeds of crime Penalties, other than gaol [Fines, Community Based Orders, Bonds] Compensation to victims of crime under the Sentencing Act Civil Jurisdictions: What is a "civil case"? Parties; the Plaintiff, the Defendant and Third/Joined Party Civil trials by Jury of 6 or Judge alone Civil onus and the civil standard of proof [on "the balance of probabilities"] Damages claims [personal injuries cases: motor car and industrial accidents, medical negligence cases or slipping in street or in a shop] Duty of care in tort 5

6 Breach of duty of care Breach of a Statutory Duty Causation in Law Injury, loss and damage [including statutory limits on damages] Statutory compensation schemes [ workcover and transport accidents] Contract disputes Wills, probate and family property cases = where' s my share of the money Administration and Probate Act 1958, Part IV claims Defamation Corporations Building and Technology Intellectual Property Injunctions Costs in favour of successful party, or costs follow the outcome Settlement of cases 10. Specialist Administrative Law Jurisdictions: Administrative Appeals Tribunal [Commonwealth/Federal] Migration Review Tribunal [Commonwealth/Federal] Fair Work Australia [Federal] Victorian Administrative and Civil Tribunal [VCAT] Planning and Environment Residential T errancies Guardianship and Administration Freedom of Information Health and Privacy 6

7 Transport Accident Commission decisions Civil disputes - small claims Human Rights, including discrimination cases [sexual or otherwise] Disciplinary Tribunals: Professional disciplinary jurisdictions Medical [doctors, physiotherapists, chiropractors, nurses etc] Legal [solicitors, barristers] Teaching Racing AFL Rule in Briginshaw v Briginshaw 11. Office of Public Prosecutions/ Director of Public Prosecutions and Victoria Legal Aid. 12. Class actions/group actions in Federal Court and Supreme Court. The new paradigm. 13. The Rule against "Self Incrimination": Police Records of Interviews ICAC, NCA & VCAT Australian Crime Commission v Stoddart (2011] HCA 47 7

8 14. The principle against "Double Jeopardy": Finality in litigation Reform of the Law 15. Mediation and other Alternate Dispute Resolution [ADR]: What is this procedure, and what is its purpose. Nature of ADR Arbitrations Mediations Non decision making resolution 16. Sources of the Law: Legislation Regulation & By-Laws Court decisions, and the concept of Precedent Common Law Judicial activism 16. Changing the Law: Law Reform Commissions Royal Commissions Victoria's Sentencing Advisory Council Pressure groups [e.g. victims of crime, sexual assault victims, trade unions and Insurance Companies] 8

9 The Media IRVING MILLER September