VCE Legal Studies Question Thread

[nacho]

Alright, thought of something interesting. .
When there is disapproval of a precedent by a judge in the same court - both precedents remain intact until a judge from the higher court has to make the decision right?
But what if this disapproval Is in the high court?
Does that just mean new judges will come and go disapproving as they wish and no real precedent is made?

Edit: in regards to
judicial determination it does In actuality refer to using courts
for BOTH civil and criminal cases, not as billius has previously mentioned

[RandomEgg]

Discuss why parliament retains the power to abrogate or codify law made by courts. (4 marks)


also:

‘The only effective way to influence parliament is through the Victorian Law Reform Commission.’
a.   Do you agree? In your answer, evaluate how effective demonstrations are in influencing parliament to change the law. (4 marks)

^ what aspects of that question would you discuss in your answer? (just briefly if you could)

also:
Briefly, how do juries hepl achieve effective access to the legal system?
i cant see how they in anyway increase accessibility to the legal system..

For the first question, I would probably talk about the supremacy of parliament.

For the second question, I would first state that I disagree with the statement, explain the other methods of influencing the law that can be effective then that leads towards discussing a strength and a weaknes of demonstrations.

In the A+ book the only feature it mentions to help achieve effective access is that in a criminal trial the cost of the jury is borne by the state (taxpayers) not the parties. Can't think of anything else though. Hope this helps. 

[Tragesty]

Hey guys, help would be appreciated in regards to my responses for a practice exam my teacher marked - were the lost marks justifiable? I know it's a long read, but i'd really appreciate it! Hoping to make a comeback off my crap SAC marks this year.

Explain the role of the VLRC - 1 out of 2 marks
The Victorian Law Reform Commision (VLRC) is an independant, government funded law reform body. Their role is to investigate matters referred to it by the attorney general, monitor law reform activity in Victoria and to offer suggestions to the attorney general for matters to be reffered to it.

My teacher took off a mark for not mentioning discussion papers and forums (as per her remark). Is my answer worth 1 or 2 marks?

Reccomend two ways in which a group can influence change in the law. Evaluatet the effectiveness of each of these two methods.

My response first outlined two ways - petitions and demonstrations. I briefly explained what a petition was during my evaluation of it, and did not explain what a demonstration involves  - I went straight to evaluation. As such, my response was:

Petitions - strength
Petition - weakness
Demonstrations - strength
Demonstrations - weakness

The question was worth 4 marks, I got 2 and a half out of 4 (lost marks for not talking about demonstrations. Do I have too? It doesn't say explain - only reccomend and evaluate.)

Explain the three elements that are required to ensure our legal system is effective and achieves just outcomes.

I stated all three elements (F.A.T), and a detailed explanation of each respectively. However, perhaps because I was rushed or didn't notice, they were all in a large paragraph separated by 'as well as' and commas (I know, I know...) - I got 2/3 for this response - is a mark off justifiable due to no paragraph spacing? (response was 10 lines total).

Evaluate whether the adversarial system of trial is an effective method of dispute resolution.
3/5 marks. (5 mark question for evaluating adversary system, seriously?)

The marks weren't that many for something with so much to cover, and as such rather than going over two strengths and weaknesses in great depth, I went with:

The adversary system allows for parties to initiate proceedings, gather evidence and decide on the mode of trial. As such, parties are likely to feel more satisfied with the outcome of the case, as they play a main role. However, this may lead to parties only submitting beneficial evidence, so the truth may not entirely emerge.
The use of an impartial and unbiased adjudicator ensures parties are treated fairly, and follow the strict rules of evidence and procedure. However, despite the judge's legal expertise, they remain quite passive in their role.
The use of legal representation by parties ensures parties are presented in the best possible light, and are on equal footing. However, legal representation is quite costly and parties facing financial hardship be disadvantaged.


My teacher wanted me to elaborate more, and I would have loved to if it was an 8 or 10 marker (plenty more could be said), however is my response worthy of 4 marks? Or was 3 correct?

Help would be greatly appreciated (I know my responses aren't nearly as good as most on these forums) - thank you!

[playsimme]

Well by just looking @ the adversary question, it's a little brief. I'd plump it up a little more personally. Stuff I'd add in the (brackets) to get full marks

The adversary system allows for parties to initiate proceedings, gather evidence and decide on the mode of trial. As such, parties are likely to feel more satisfied with the outcome of the case, as they play a main role. (Additionally, it upholds fairness as it ensures each party can put forward the best case to represent themselves) However, this may lead to parties only submitting beneficial evidence, so the truth may not entirely emerge. (Furthermore, this is rather dependent on the parties financial standing, as they only have themselves to boost their case as opposed to say a prosecution who can rely on police evidence and external sources.)
The use of an impartial and unbiased adjudicator ensures parties are treated fairly, and follow the strict rules of evidence and procedure (and they only rule on evidence that comes before them)  However, despite the judge's legal expertise, they remain quite passive in their role (they are unable to assist unrepresented parties which puts poorer parties at a clear disadvantage and furthermore, they cannot investigate to find the truth).
The use of legal representation by parties ensures parties are presented in the best possible light, and are on equal footing. (Legal representatives are skilled and highly regarded at their job - hence presenting a coherent and professional case. Further they allow for language impaired clients to be represented well) However, legal representation is quite costly and parties facing financial hardship be disadvantaged. (Quality is dependent on cost)

(Despite these weaknesses, the adversary system remains a solid system which advantages counterbalance it's downfalls).

[Tragesty]

Fair enough, thanks

[burbs]

Q. Evaluate the extent to which the following responses answer the questions being asked. Please highlight areas that are not addressed. xoxo.

But seriously, any pointers etc. would be sah-weet.

“Our adversary system of trial needs to be reformed and features of the inquisitorial system could be considered.”
To what extent do you agree with this statement? Give reasons for your decision.

The adversary system of trial is where two opposing parties fight in court to win a legal battle, with the judge playing the role of an independent, impartial umpire. The inquisitorial system is an alternative approach where the court is more actively involved in determining the facts and conduct of a trial.

One reform that could be made to the adversary system would be to give the judge or magistrate a greater investigative role. In the adversary system, the judge’s role is to be an impartial arbitrator and ensure the parties are treated equally, and that the rules of evidence and procedure are followed. In contrast, a judge in the inquisitorial system has an active role in defining the issues of the case and controlling the investigation, aiming to uncover the truth.  In doing so, the judge’s expertise is better utilised in comparison to the adversary system, which can be considered a weakness of the latter. Whilst giving the judge a more active role could be seen as a better use of their knowledge and experience, it risks reducing their impartialness. As a result, it is possible both parties will not be treated equally and a fair and unbiased hearing will hence not occur. As such, this reform is better suited for certain circumstances, such as in directions hearings where judges are more involved in the process.

Another possible reform would be to allow written statements and evidence. Currently, the adversary system relies on oral evidence, with strict rules of evidence and procedure protecting and guiding what is and isn’t admissible. This promotes consistency and fair treatment of both parties, with cross-examination highlighting false evidence and allowing parties to assess the sincerity of witnesses. These are all strengths of the adversary system as they complement each other so that a fair outcome is reached. However, they also increase the amount of time spent in a trial due to delays associated with witnesses and cross-examination. The adversary system could be altered to incorporate the approach used in the inquisitorial system, where evidence is mainly written, with no strict rules. Witnesses are still allowed and tell their story without interruption, instead of responding to questions as in the adversary system. Using written evidence would reduce delays in trials and aid the timely resolution of disputes. However, written evidence cannot be cross-examined and witnesses may still need to be called in to ask questions. Written evidence is therefore not suitable in higher courts, although the hand-up brief method used in committal hearings is a good use of this inquisitorial feature.

Legal representation is necessary in the adversary system due to the complex nature of rules of evidence and procedure. However, in the inquisitorial system legal representatives are less essential as the judge leads the investigation, thus legal representatives play a more advisory role. As such, the inquisitorial system tends to generally avoid the high costs associated with legal representation (costs can range between $3000 – 9000 a day in court), thus providing better access to justice as people who cannot afford representation are less disadvantaged. This weakness of the adversary system could be managed by improving the availability of legal aid. There is currently a funding cap at $12 000 for adults and $18 000 for children in family court cases, but costs are likely to exceed these in lengthy cases. Similarly, there is a $40 000 limit in superior courts for criminal cases, which is often insufficient in complex cases. Providing more aid in these circumstances would improve access to the legal system, and ensure both parties have a chance to present the best case possible and hence receive a fair and unbiased hearing.

I agree with this statement to a low extent. Whilst some changes would be beneficial, especially in the lower courts and in pre-trial procedures, majorly reforming the adversary system to incorporate features of the inquisitorial system risks reducing the unbiased and fair nature of trial this system provides. Furthermore, the strengths of the adversary system generally outweigh the limitations, and therefore major reforms are unnecessary.

Critically evaluate the extent to which the jury system contributes to an effective legal system and justify your conclusion.

An effective legal system is one which is able to provide effective access to the legal system, an entitlement to a fair and unbiased hearing and timely resolution of disputes.

A fair and unbiased hearing refers to each party in a case being treated equally before the law, and for adjudicators to be independent and unbiased. The jury system is a mechanism to ensure this element is fulfilled by allowing parties to be trialed by their peers, amongst other reasons. A jury is a cross-section of the community who is unbiased and decides on the facts of a case. Their impartialness is ensured by the fact that they are randomly selected from the community. In addition, by having certain individuals ineligible or disqualified, the system ensures that no jury member can have any connection with a case or be biased against the legal system as a result of past experiences, such as having a criminal record. Moreover, they are a buffer between the state and the individual, as the jury reaches the verdict instead of the state that prosecute the accused in a criminal case. As a result, the jury is able to be independent and impartial. However, a jury is not necessarily a cross-section of the community due to the system of challenges and the fact that some people are ineligible, disqualified or excused. Therefore, a jury isn’t a true cross-section. Furthermore, a juror may have personal biases which they cannot set aside during a case, which would not allow for a fair hearing as they won’t be deciding on the facts of a case alone. Juries may also have difficulty following and understanding a case due to complicated nature of trial and the possibility of evidence being complex, meaning the accused is not given a fair hearing on the evidence of a trial. In these ways, a fair and unbiased hearing may actually be hindered by a jury.

Effective access to the legal system refers to everyone being able to take a dispute to a court or tribunal and be able to access justice. This is accounted for by the jury system as, in criminal trials, the cost is borne by the state and not the individual themselves, meaning they are not required to pay for a jury. However, juries in civil trials are optional and the party who wishes to have one must pay. Civil juries are expensive, costing around $550 for the first day and further costs for each subsequent day. This is yet another cost individuals have to pay with other administrative fees which may dissuade parties from using a jury if they cannot afford one, denying them the right to effective access.

Timely resolution of disputes is achieved when they are resolved in a timely manner with as few delays as possible. Juries tend to increase the length of a trial as the empanelment process can take hours or days in long trials, adding time before a trial has even commenced. Throughout a trial, legal counsels and judges are required to explain legal terms and concepts and ensure the evidence is understandable for the jury. In addition, jury deliberations can take time, and in the case of a hung jury delays are exacerbated due to the fact that a case must be retried in front of a new jury, meaning that the whole empanelment process must also be redone. However, whilst a jury does add time, it is essential that evidence is clearly explained to a jury to ensure they can properly deliberate it so a fair trial occurs. The empanelment process is also necessary to ensure no jurors have any personal stake in the trial or are disqualified. As such, the delays can generally be excused as they are important for a fair and unbiased hearing.

I believe juries contribute to an effective legal system to a substantial amount. They provide for a  fair and unbiased hearing and effective access in criminal law; however they are expensive for civil cases and generally add delays to a trial. Overall, the benefits of a jury outweigh these limitations to ensuring an effective legal system.

EDIT: One more. I don't think I distributed the word count well.

“To some extent our legal system achieves the elements of an effective legal system; however, some changes are needed.”

Discuss this comment .In your discussion explain how recent changes and/or recommendations for change attempt to achieve the three elements of an effective legal system.

The legal system is moderately effective in achieving the three elements of an effective legal system. However, recent changes and possible future changes can ensure that it best provides a fair and unbiased hearing, timely resolution of disputes and effective access to the legal system.

A fair and unbiased hearing refers to each party in a case being treated equally before the law, and for adjudicators to be independent and unbiased. This is achieved through procedures such as the impartial nature of judges who, by upholding rules of evidence and procedure, ensure that both parties are treated equally and fairly. Similarly, the jury system helps achieve this element by giving the opportunity for parties to be trialed by their peers. A fair and unbiased hearing is also upheld by pre-trial procedures. Civil pre-trial procedures ensure that both parties are aware of the other’s case and access to relevant information for a trial. This is enabled through the discovery stage where evidence is shared so that there is no element of surprise in court. Moreover, directions hearings in civil trials aim to make sure both parties understand the different stages of the course of the dispute and their responsibilities throughout this. In a similar manner, criminal pre-trial procedures also help achieve a fair and unbiased hearing. Bail upholds the presumption of innocence as an accused is released from custody until their trial. This also gives them a chance to prepare their case. Committal hearings also enable this by giving the accused a chance to hear the prosecution’s case against them so that they can prepare a defence and be put on equal footing with the other party. However, an accused is not always granted bail and the prosecution generally has greater access to resources, which reduces the fairness of a trial. Furthermore, civil pre-trial procedures are complex and if a party does not have legal representation they may be too complex for them to follow and they will not benefit from the same advice the other party is receiving. A recent change to the legal system is the introduction of the Koori County Court. This court is for indigenous Australians who are pleading guilty in criminal trials. It was deemed necessary as indigenous Australians make up 25% of the prisoner population but only 3% of the nation’s total population. Indigenous Australians may have trouble due to cultural differences, such as gratuitous concurrence which is the tendency to agree with a question regardless of how the individual feels and a tendency to be shy. By having an indigenous elder present, the legal system can ensure that these cultural differences are accounted for, and by taking part in the sentencing they show the indigenous Australian population’s distaste for the crimes committed.

Effective access to the legal system refers to everyone being able to take a dispute to a court or tribunal and be able to access justice. This is achieved through procedures such as tribunals, which provide cheaper and informal resolution of disputes, such as VCAT. VCAT costs are as low as around $37 whilst serving a writ in the County Court is around $500. However, access could be difficult due to language barriers, the high cost of proceedings and the high costs of legal representation. A recent change that addresses this is the increase in court conducted or ordered alternative methods of dispute resolution. Mediation, conciliation and arbitration are being used through processes like judge-led mediation. These are much cheaper in comparison to the courts. Furthermore, they tend to not require legal representation, which further reduces costs for those involved, hence improving access to the legal system.

Timely resolution of disputes is achieved when they are resolved in a timely manner with as few delays as possible. Committal hearings help provide for timely resolution by only allowing cases with sufficient evidence to proceed. However, pre-trial procedures in civil cases are time consuming, especially discovery and pleadings stages. Furthermore, committal hearings may reduce delays overall, but they increase time in court for specific cases. A suggested reform to improve timely resolution is to abolish committal hearings, and instead having an accused presented directly for tiral. This reduces delays as there is no need to prepare for committal hearings, and cases are resolved much sooner after they begin. However, this may lead to cases wasting the time of superior courts if there is insufficient evidence for them to proceed.

[playsimme]

Help! can someone please specify if the examples given when we discuss 'reasons for changes in the law' can be brief (like 5 words), or do they have to be specific case examples? Because a lot of the solutions just state 'for example, laws to accomodate stem cell research' but it's not an actual specific act? < will that do?

[Zafaraaaa]

What is the main difference between overriding and disapproving, in terms of judges choosing to avoid/develop law??
Thanks in advance!

[nacho]

it's actually overruling
for an example of how overruling works, think of this:
There is a case in the county court.
The justice/judge creates a precedent, which is : "The manufacturer owes the customer a duty of care"
and then finds for the plaintiff who wins the case and sues the manufacturer for $1000000000000000000 x 10^23

Anyway, a while later, there is a very similar case, however this time in the Supreme Court (trial division)
The justice/judge overrules the precedent made by the one from the country court, in effect meaning that "The manufacturer does NOT owe a duty of care to the customer".
And therefore a new binding precedent is made.

That's overruling.

Disapproving occurs in two cases:
- when a judge may refuse to follow an earlier decision of another judge in the same court, in effect meaning both precedets remain enforceable until another case on the issue is taken to a higher court.
- When a judge in a lower court disapproves with a precedent, that he/she must follow, but must follow it regardless.
So they are saying 'I'll follow it, but i do not want too because it is inappropriate..' or something like that.


MY own question,
do we need to know any three types of sanctions?
I just saw a question asking for the purpose of fines, and i only studied CBO's, home detention and imprisonment!

additionally;
when you are asked 'how does the commonwealth constitution protect human rights'
how do you guys elaborate on structural protections?
This is what i do, would it be right? Is it excessive or is it perhaps lacking?

Structural protections are those given from the wording of the constitution which prevent the commonwealth parliament from abusing its' power. The structural protection provides that there must be a separation of powers, so that no one body has absolute power which is unchecked. Furthermore, there must be representative government, so that the government is elected by the people and it must represent the views of the majority of the people. finally thre must be responsible government[b/] (i absolutely hate explaining responsible government, it always sounds like im parroting the textbook..) so that the government is responsible for it actions and when required must justify them to the people.

[Zafaraaaa]

MY own question,
do we need to know any three types of sanctions?
I just saw a question asking for the purpose of fines, and i only studied CBO's, home detention and imprisonment!

Thanks for clearing that up! and yepp, from what I know, any 3 would be fine - but you know regarding those kinds of questions where they're like
"explain the purpose of one sanction"
would you always have to answer it in terms of Denunication, Detterence, Protection, Punishment and Rehabilitation (with ALL those aspects mentioned?) because for some sanctions there isn't really a rehabilitation aspect...

[Zafaraaaa]

Could someone pleaseee explain the suggested reforms and suggested alternatives to the Jury system?? and how many of these would we have to know for each??

Thanks in advance!

[eeps]

Could someone pleaseee explain the suggested reforms and suggested alternatives to the Jury system?? and how many of these would we have to know for each??

Thanks in advance!

Reforms are minor changes to the jury system, whereas alternatives are changes which completely overhaul the jury system. Some reforms include: employing a professional foreperson, more training for jurors, jurors giving reasons for their verdicts etc. Whereas, some alternatives are: abolishing the jury system altogether or employing specialist jurors. With these sorts of questions, try to link your reform/and or alternative to an element of an effective legal system and how it improves/enhances it. I’d say know two or three reforms and alternatives for each (really well), because VCAA can ask for either in a question. Note, try not to get confused between the two. Hope this helps and good luck for the exam.

[eeps]

when you are asked 'how does the commonwealth constitution protect human rights'
how do you guys elaborate on structural protections?

Provide examples of structural protections. For example, when discussing the separation of powers as a structural protection, explain what each arm/function is. It is better, in my opinion, to give more than required in the bigger-mark questions just to be safe, because it is difficult to tell the mark allocation for those questions.

[Tragesty]

When explaining the doctrine of precedent, when I state that precedent can be developed or avoided through reversing, overruling and distinguishing, would I be correct in assuming to not include disapproving? As that merely shows a judge's disapproval but doesn't create a new precedent, or avoid a past one? I've always remembered RODD as the four together, but should I include disapproving?

-michael.

[Liuy]

Correct, disapproval is merely expressing that a past precedent needs to be changed, but the court still follows this precedent due to factors such as the conservative nature of the judges. I would still mention it when talking about RODD as it gives your answer more depth, but yes, it is not a method of avoiding past precedent.