Legal studies flashcards total

Legal toolkit — What is the purpose of a describe question?

State the relevant features or characteristics of a concept clearly and accurately.

Legal toolkit — What is the purpose of an identify question?

Name the relevant concept, feature, factor, party, process, evidence or provision.

Legal toolkit — When is a describe question appropriate?

When the question asks you to state what something is like, including its key features or characteristics.

Legal toolkit — When is an identify question appropriate?

When the question asks you to name or recognise a specific item without requiring a developed explanation.

2.1 Overview — What makes up the Australian legal system?

Laws, procedures and bodies that make or enforce laws.

2.2 Criminal and civil law — Who brings a criminal case?

The prosecution brings a criminal case against an accused person.

2.2 Criminal and civil law — Who does the prosecution generally represent?

The community.

2.2 Criminal and civil law — Who is the accused?

The person charged with the criminal offence.

2.3 Rule of law — What should laws be like?

Clear, knowable, accessible and capable of being understood so people know their rights and obligations.

2.3 Rule of law — How should laws be enforced?

They should be applied and enforced fairly.

2.3 Rule of law — What presumption protects an accused?

The presumption of innocence: a person is presumed innocent until proven guilty in a fair and public trial.

2.3 Rule of law — When can a person be punished?

Only after a court has determined that they have broken the law.

2.3 Rule of law — What is the position on retrospective criminal laws?

Criminal law should not retrospectively make previously lawful conduct unlawful.

2.3 Rule of law — How does the rule of law constrain government?

Government is subject to the law and government action can be challenged through the courts.

2.3 Rule of law — Why can laws be reviewed or changed?

So they can remain fair and reflect changing social values.

2.3 Rule of law — What does the rule of law promote?

Fairness, equality, accountability, order and predictability.

2.3 Rule of law — How does it limit government power?

It places government under the law and allows government action to be challenged through the courts.

2.3 Rule of law — How does an independent judiciary support it?

An independent judiciary can apply the law fairly and review government action without being directed by government or Parliament.

2.3 Rule of law — How can it link to Unit 4?

It links to separation of powers, constitutional limits on government and judicial review.

3.1 Criminal justice system — What does the criminal justice system include?

Parties, types of offences, pre-trial processes, hearings/trials, courts, juries and sentencing.

3.2 Summary offences — What are summary offences?

Minor or less serious offences generally heard in the Magistrates Court.

3.2 Summary offences — Give examples.

Drink-driving, disorderly conduct and minor assaults.

3.3 Key principles — What is the burden of proof?

The obligation of the prosecution to prove the accused is guilty.

3.3 Key principles — What is the standard of proof?

The level of certainty or strength of evidence required to prove a case.

3.3 Key principles — What does equality mean in the justice system?

People should be treated in a way that avoids disparity or disadvantage; where identical treatment would create disadvantage, adequate measures should be used.

3.3 Key principles — How can equality involve different treatment?

Different measures may be needed where identical treatment would create disadvantage.

3.4 Rights of accused — What is the right to be tried without unreasonable delay?

Charges should be heard in a timely manner and only reasonable delays should occur.

3.5 Rights of victims — What is the right to give evidence by alternative arrangements?

A victim may give evidence using alternative arrangements in specified cases, including sexual offences and family violence offences.

3.5 Rights of victims — What types of offences can trigger alternative arrangements?

Sexual offences, family violence offences, specified obscene/indecent/threatening language or behaviour offences, and sexual exposure in a public place.

4.1 Principles of justice — What is fairness?

All people can participate and processes are impartial and open.

4.1 Principles of justice — What is equality?

People should not experience unjust disparity or disadvantage when using the justice system.

4.1 Principles of justice — What is access?

People should be able to physically, technologically and financially access justice and participate on an informed basis.

4.2 Victorian Legal Aid — What is VLA?

A government agency providing free legal information to the community and legal representation for people who cannot afford a lawyer.

4.2 Victorian Legal Aid — Who does VLA prioritise?

People who need assistance most and cannot obtain it elsewhere.

4.2 VLA — What is one strength of VLA?

Free legal information is available to everyone.

4.2 VLA — What is another strength?

Eligible people can receive free legal advice or assistance.

4.2 VLA — What language-access evidence can you use?

Some information is available in more than 30 languages.

4.2 VLA — Why are there eligibility criteria?

VLA does not have unlimited resources, so assistance must be prioritised.

4.2 VLA — What limitation affects VLA services?

VLA has limited resources and funding must continue to meet demand.

4.2 VLA — What can affect the usefulness of online VLA tools?

Community awareness of the tools affects whether people use them.

4.3 Plea negotiations — What are plea negotiations?

Pre-trial discussions between the prosecution and accused aimed at resolving criminal charges by agreement.

4.3 Plea negotiations — What factors can affect a plea negotiation?

Willingness to cooperate, strength of evidence, willingness to plead guilty, representation, witness reluctance, possible consequences, time and expense, and the victim’s views.

4.4 Court hierarchy — What are an appellant and respondent?

The appellant is the party bringing an appeal; the respondent is the party responding to it.

4.5 Judge and magistrate — Are Victorian judges and magistrates elected?

No. They are appointed.

4.5 Judge and magistrate — What qualification is identified in the source?

An eligible person needs a law degree and at least eight years’ experience as a lawyer.

4.6 Jury — What is a jury?

A trial by peers.

4.6 Jury — Why can random selection support fairness?

Random selection and lack of connection to the parties can support decisions based on the facts.

4.6 Jury — What is a weakness of juries?

Jurors may have unconscious bias or prejudice.

4.6 Jury — Why can jury decisions be difficult to scrutinise?

Jurors do not give reasons, so it can be difficult to know whether bias affected the decision.

4.6 Jury — What historical evidence supports the importance of jury trial?

The jury is described as a fundamental right linked to the Magna Carta.

4.7 Parties — Who are the two main parties in a criminal case?

The prosecution and the accused.

4.8 Legal practitioners — What is a generalist community legal centre?

A centre providing a broad range of legal services.

4.8 Legal practitioners — What is a specialist community legal centre?

A centre focusing on a particular group of people or area of law.

4.8 Legal practitioners — What legislation can support the importance of legal representation?

The Criminal Procedure Act 2009 gives courts power to adjourn a trial for serious offences until legal representation has been given.

4.9 Costs, time and cultural differences — What is a major source of legal cost?

Legal representation.

4.9 Costs, time and cultural differences — How can committal proceedings reduce cost?

They can filter weak cases before a full trial.

4.9 Costs, time and cultural differences — How can plea negotiations reduce cost?

They can resolve cases without the expense of a full trial.

5.1 Sanctions — What legislation governs sentencing sanctions?

The Sentencing Act 1991 sets the powers of the court to impose sanctions and provides a hierarchy of sanctions.

5.2 Purpose of sanctions — What is rehabilitation?

Addressing the underlying causes of offending and treating those causes.

5.2 Rehabilitation — Give the example used in the source.

Treating drug or alcohol addiction that contributed to offending.

5.2 Rehabilitation — What does the source say the offender must show?

Remorse.

5.3 Fines — What is a fine?

An amount of money paid to the state and expressed in levels.

5.4 Community correction order — What is a CCO?

A non-custodial, supervised sentence served in the community.

5.5 Imprisonment — What does imprisonment involve?

A conviction and serving time in prison.

5.5 Imprisonment — What is a non-parole period?

The minimum time an offender must serve in custody before becoming eligible to apply for parole.

5.5 Imprisonment — When may a court impose a non-parole period?

For a prison sentence longer than 12 months, subject to statutory exceptions and offence-specific rules.

5.5 Imprisonment — When must a court impose a non-parole period?

For a prison sentence longer than two years, subject to statutory exceptions and offence-specific rules.

5.5 Imprisonment — What is the difference between a total sentence and the non-parole period?

The total sentence is the overall term of imprisonment; the non-parole period is the minimum time that must be served before parole eligibility.

5.6 Sentencing factors — What legislation requires courts to consider sentencing factors?

The Sentencing Act 1991 (Vic).

5.6 Sentencing factors — What are examples of sentencing factors?

Maximum penalty, standard sentence, current sentencing practices, nature and gravity of the offence, offender culpability and responsibility, victim impact, injury/loss/damage, guilty plea, previous character, and aggravating or mitigating factors.

5.6 Sentencing — How can hatred or prejudice affect sentencing?

Whether the offence was motivated by hatred or prejudice is a factor the court must take into account.

5.6 Sentencing — How can a guilty plea affect sentencing?

Whether the offender pleaded guilty is a sentencing factor.

5.6 Sentencing — How can victim impact affect sentencing?

The impact and personal circumstances of victims and the injury, loss or damage caused can be considered.

5.6 Sentencing principles — What is proportionality?

The punishment should correspond to the gravity of the offending.

5.6 Sentencing principles — What is parity?

Similar offenders in similar circumstances should generally receive similar sentences.

5.6 Sentencing principles — What is totality?

The overall sentence for multiple offences should be just and appropriate.

5.6 Sentencing principles — What is parsimony?

The sentence should be no more severe than necessary to achieve its purposes.

6.1 Victorian civil justice system — What is it?

A set of processes, methods and institutions providing mechanisms for people to assert legal rights.

6.2 Civil justice principles — What principles apply?

Fairness, impartiality, open processes, equality, access and informed participation.

6.2 Civil justice — What is formal equality?

Treating people the same.

6.2 Civil justice — What is substantive equality?

Providing different treatment where identical treatment would create disadvantage.

6.2 Civil justice — Give examples of substantive equality measures.

Assistance, interpreters, changes to court processes and different ways of giving evidence.

6.3 Civil claim — What costs should a person consider before starting a claim?

Solicitor/barrister fees, court fees, mediation fees, expert-witness fees and technology costs.

6.3 Civil claim — What is a limitation of actions period?

The period within which a civil action must be commenced.

6.3 Civil claim — Why do limitation periods exist?

To avoid stale claims, loss of evidence and delayed resolution.

6.3 Civil claim — What legislation is relevant to limitation periods?

The Limitations of Actions Act 1958.

7.1 Principles of justice — What is fairness?

All people can participate and processes should be impartial and open.

7.2 Dispute resolution — What is mediation?

A cooperative, structured problem-solving process in which parties discuss issues, develop options, consider alternatives and negotiate or compromise.

7.2 Mediation — Who can appoint mediation?

A court can appoint it or the parties can agree to it; associate judges can also mediate.

7.2 Mediation/conciliation — What are common strengths?

Less formality, a supportive setting, privacy, and potential savings of time and costs if successful.

7.2 Mediation/conciliation — What are common weaknesses?

A settlement may be difficult to enforce, one party may feel pressured to compromise, a party may refuse to participate, unsuccessful mediation can waste costs, and there is reduced public scrutiny.

7.2 Mediation — When may preserving a relationship matter?

Where parties want an ongoing relationship, mediation may be appropriate because it encourages cooperation and compromise.

7.2 Mediation — When may mediation be inappropriate?

Where there is violent or threatening behaviour, an extreme power imbalance, or insufficient willingness to compromise.

7.2 Mediation — Why can timing matter?

Mediation that occurs too early or too late can be less effective.

7.2 Mediation — What privacy issue can affect method choice?

Parties may prefer a private/confidential outcome or may prefer a public record.

7.2 Arbitration — What is arbitration?

A dispute-resolution process in which an impartial arbitrator makes a determination for the parties, generally with a binding and enforceable outcome.