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January 21, 2021, 12:55:41 am

Author Topic: Free Legal Essay Marking!  (Read 76267 times)

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jamonwindeyer

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Free Legal Essay Marking!
« on: February 19, 2016, 09:05:47 pm »
If you'd like your essay marked, you won't be able to post it until you make an ATAR Notes account here. Once you've done that, a little 'reply' button will come up when you're viewing threads, and you'll be able to copy and paste your essay and post it up here for us to mark!

Hey everyone!! Welcome to the Legal Studies Marking Thread. This thread is here for you to get feedback on your essays from a Band 6 student. This resource exists to help you guys make huge improvements on your essay writing... Too often, teachers just write "good" or "needs explaining" or "expand". SUPER. FRUSTRATING. This is a place to properly improve :) :) :)

Before posting, please read the essay marking rules/rationale here.

I hope this thread becomes a useful resource throughout your HSC Year. Happy study!
« Last Edit: August 04, 2017, 08:42:44 pm by jamonwindeyer »

Jemimared

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Re: Free Legal Essay Marking!
« Reply #1 on: February 20, 2016, 08:40:15 pm »
Hi there, I haven't written a conclusion to this yet, but I'm not sure if I am on the right track in what I am writing- or more importantly if  I'm even answering the question!
The question is- Evaluate the law’s effectiveness in encouraging cooperation to achieve justice for parties involved in relationship breakdown.
The other thing is there is so much involved in this question that I am not sure what to add in and what to leave out. E.g. I haven't talked about ADVOs but that is a pretty big part of it.
Let me know what you think.
Thanks :)



The Australian Family Law Act 1975 (Cth) (FLA) defines the family as ‘the natural and fundamental group unit of society, especially in relation to the upbringing of children”. This definition mirrors Article 23 of the International Covenant on Civil and Political Rights (ICCPR) which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The law’s effectiveness in encouraging cooperation in relationship breakdown can be effective when parties involved are willing to comply. In cases where one or both parties are hostile and not willing to comply, achieving justice becomes much harder. In a relationship breakdown it is important that the best interests of the child is paramount in the outcome of the breakdown. However this is not always seen in relationship breakdowns.

When a relationship breaks down two of the most significant issues that need to be resolved are the care of children and the division of property. If the relationship breakdown is relatively amicable these issues can be quite straightforward, and in 95% of cases, divorces are settled out of court via mediation. However, if not, the parties must rely on the family law system to try to achieve just outcomes not just for the parties in the relationship but also for the best interests of the children (in line with Convention on the Rights of the Child (CROC) who are part of the families formed by these relationships.The system of family law in Australia has developed over time on the basis of trying to protect the individuals that make up a particular family unit regardless of whether they are married as defined by the Marriage Act 1961 (Cth) or whether they are in a de-facto relationship.  The law system has had to change over the years to accomodate the changing nature of families. The traditional view of a nuclear family of a married mother and father plus children was too narrow to encompass the variety of families that exist, including de-facto couples, single parent families, same sex couples and Aboriginal and Torres Strait Islander customary marriage.
Achieving justice for all parties and encouraging cooperation in relationship breakdown has become more attainable through key reforms in family law including; The FLA ’No fault’ divorce, the Family Courts reduction in the formality of proceedings in 1987 (with the focus shifting from winning to resolution), and the Family Law Reform Act 1995 (Cth) (FLRA) moving away from parents ‘rights’ towards parental responsibility (In line with CROC).

When a relationship breaks down there are three pathways to resolve the issues of care of children and division of property. These are: Private negotiation, Family Dispute Resolution (FDR) or litigation. FDR includes negotiation, mediation, arbitration and child-inclusive processes. FDR is resource effective as it is a cheaper and quicker method of resolving disputes than litigation. A report by in 2009 by the Attorney-Generals Department, found that for every $1 invested by the government in FDR, approx. $1.50 is saved in court time and related costs. It has been proven that voluntarily reached agreements made by separating parties are much more effective in the long term rather than adversarial court processes, due to the encouragement of cooperation in coming to an agreement. FDR also allows parents to focus on their child’s best interests in line with CROC and community values. However, if parties in FDR (due to compulsory nature) fail to cooperate with the process, or in the case of a significant power imbalance between the parties, FDR might not result in a fair outcome. Finally, because agreements and parenting plans are non-binding, they are not fully safe-guarded in a court hearing. However, a consent order can be made enforcing the parenting plan. Through consent orders, the law has been able to encourage parents to cooperate by creating a consequence if the parenting plan is not followed.
In 2006, the Australian Government introduced a series of changes to the family law system.
These included changes to the FLA through the Family Law Amendment
(Shared Parental Responsibility) Act 2006 (Cth) (FLASPRA) and changes to the family
relationship services system.These changes were a step in the right direction for achieving justice and encouraging cooperation for parties involved in relationship breakdown. The aim of the 2006 reforms were to create a generational change in family law and a cultural shift in the management of parental separation, away from litigation and towards shared and cooperative parenting.
These changes were a result of the need for laws in line with CROC and with the best interests of the child. The legislation was also important to respond to community concern that children should have meaningful contact with both parents.
It is important to note that, the presumption of equal shared parental responsibility does not apply where the court has reasonable grounds to believe there has been family violence or abuse.
The 2006 reforms have had a range of positive impacts, encouragement of cooperation between both parties has aided in achieving justice for parties involved in relationship breakdown, and for the broader community. The introduction of family relationship centres (FRCs) and the requirement for compulsory mediation before court action in post-separation disputes have seen a decline in court filings for children’s cases, and a shift away from automatic recourse to court litigation.
Through the use of compulsory mediation, the law has encouraged cooperation from both parties in relationship breakdown to make a genuine effort at resolving post separation issues. This is both in line with CROC and the best interests of the child and in line with contemporary community values.

However, the 2006 reforms have also created problems for parties involved in relationship breakdown. The reforms have in some cases discouraged fathers to cooperate in the long-term decisions about the child, by raising the expectations of fathers that they would be granted 50/50 equal time in parental responsibility. This has consequently reinforced the idea that parents have a right to their child rather than considering their needs and what is in the best interest for them. It has also created an expectation amongst mothers that they should agree to equal sharing.
As the 2010 SMH article “Reports show shared care needs fixing” discussed, shared parenting reforms are sometimes used in a way that is harmful to both children and to partners subject to family violence (discouraging mothers from raising family violence concerns due to the emphasis on facilitating the child's relationship with the father).
While in general the laws encouraging of shared parenting is positive, and has proved successful experts, particularly in family violence have raised concerns that shared parenting reforms, in particular the ‘hostile parent’ provision have made it harder for women to raise issues of family violence or abuse for fear that the court would view them as ‘uncooperative’ and grant them less time with the children as a result. There is also no guarantee that children will be protected from violent or abusive parents. For example, in the cases of Murphy & Murphy and Robins v Ruddock, the children were ordered to spend time with their fathers despite allegations of sexual abuse. cooperation  can only be effective if the system does not discourage parents from raising legitimate concerns about genuine risk of abuse or neglect.

In response to reports such as the 2010 Chisholm report ‘Family Courts Violence Review’, and cases such as Lewis v Wackett, the federal government passed the Family Law Legislation Amendment (Family Violence) Act 2011 (Cth) which aimed to provide better protection for families and children at risk of family violence and encourage cooperation of parents by removal of the ‘hostile parent’ provision, and applying firmer rules about dealing with family violence and child abuse.

mimi967

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Re: Free Legal Essay Marking!
« Reply #2 on: February 20, 2016, 09:21:32 pm »
Hey, I'm not sure where I should add case studies to this !! Also do you think I have covered everything?

gabriellav

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Re: Free Legal Essay Marking!
« Reply #3 on: February 21, 2016, 10:05:38 am »
Hi, I would love to receive feedback regarding this essay. I would love to know how I could further improve it so that it is of high quality yet is able to be written under examination time!!!
Thank you

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #4 on: February 21, 2016, 11:15:50 am »
Hi there, I haven't written a conclusion to this yet, but I'm not sure if I am on the right track in what I am writing- or more importantly if  I'm even answering the question!
The question is- Evaluate the law’s effectiveness in encouraging cooperation to achieve justice for parties involved in relationship breakdown.
The other thing is there is so much involved in this question that I am not sure what to add in and what to leave out. E.g. I haven't talked about ADVOs but that is a pretty big part of it.
Let me know what you think.
Thanks :)

Sure thing Jemimared! I've popped your essay below with some helpful comments throughout:

Spoiler
The Australian Family Law Act 1975 (Cth) (FLA) defines the family as ‘the natural and fundamental group unit of society, especially in relation to the upbringing of children”. This definition mirrors Article 23 of the International Covenant on Civil and Political Rights (ICCPR) which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The law’s effectiveness in encouraging cooperation in relationship breakdown can be effective when parties involved are willing to comply. In cases where one or both parties are hostile and not willing to comply, achieving justice becomes much harder. In a relationship breakdown it is important that the best interests of the child is paramount in the outcome of the breakdown. However this is not always seen in relationship breakdowns. I think the use of definitions here creates an excellent introduction! I would say that it is missing some kind of evaluative statement which directly sets your judgement on the issue. This is an evaluate question, make your judgement. Further, be sure to set out the arguments for the rest of your essay in the introduction, that is, identify what areas you will be discussing.

When a relationship breaks down two of the most significant issues that need to be resolved are the care of children and the division of property. If the relationship breakdown is relatively amicable these issues can be quite straightforward, and in 95% of cases, divorces are settled out of court via mediation. However, if not, the parties must rely on the family law system to try to achieve just outcomes not just for the parties in the relationship but also for the best interests of the children (in line with Convention on the Rights of the Child (CROC) who are part of the families formed by these relationships.The system of family law in Australia has developed over time on the basis of trying to protect the individuals that make up a particular family unit regardless of whether they are married as defined by the Marriage Act 1961 (Cth) or whether they are in a de-facto relationship (As defined by?).  The law system has had to change over the years to accomodate the changing nature of families. The traditional view of a nuclear family of a married mother and father plus children was too narrow to encompass the variety of families that exist, including de-facto couples, single parent families, same sex couples and Aboriginal and Torres Strait Islander customary marriage. This amount of detail on the actual 'theory' behind these laws is less important than actually evaluating them as mechanisms for justice. Try and cut this section down.
Achieving justice for all parties and encouraging cooperation in relationship breakdown has become more attainable through key reforms in family law including; The FLA ’No fault’ divorce, the Family Courts reduction in the formality of proceedings in 1987 (with the focus shifting from winning to resolution), and the Family Law Reform Act 1995 (Cth) (FLRA) moving away from parents ‘rights’ towards parental responsibility (In line with CROC). THIS LITTLE BIT HERE is what you needed at the end of your introduction!

When a relationship breaks down there are three pathways to resolve the issues of care of children and division of property. These are: Private negotiation, Family Dispute Resolution (FDR) or litigation. FDR includes negotiation, mediation, arbitration and child-inclusive processes. I'm missing the evaluative statement, which normally falls in your amplification (in a MATES paragraph). Make a judgement as to how effective these things are. FDR is resource effective as it is a cheaper and quicker method of resolving disputes than litigation. A report by in 2009 by the Attorney-Generals Department, found that for every $1 invested by the government in FDR, approx. $1.50 is saved in court time and related costs. It has been proven that voluntarily reached agreements made by separating parties are much more effective in the long term rather than adversarial court processes, due to the encouragement of cooperation in coming to an agreement. FDR also allows parents to focus on their child’s best interests in line with CROC and community values. However, if parties in FDR (due to compulsory nature) fail to cooperate with the process, or in the case of a significant power imbalance between the parties, FDR might not result in a fair outcome. Finally, because agreements and parenting plans are non-binding, they are not fully safe-guarded in a court hearing. However, a consent order can be made enforcing the parenting plan. Through consent orders, the law has been able to encourage parents to cooperate by creating a consequence if the parenting plan is not followed. Again, missing a conclusion which evaluates the measure and links back to your thesis.

In 2006, the Australian Government introduced a series of changes to the family law system.These included changes to the FLA through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (FLASPRA) and changes to the family
relationship services system. These changes were a step in the right direction for achieving justice and encouraging cooperation for parties involved in relationship breakdown. There we go, this is what I was missing earlier. The aim of the 2006 reforms were to create a generational change in family law and a cultural shift in the management of parental separation, away from litigation and towards shared and cooperative parenting.  These changes were a result of the need for laws in line with CROC and with the best interests of the child. The legislation was also important to respond to community concern that children should have meaningful contact with both parents.  It is important to note that, the presumption of equal shared parental responsibility does not apply where the court has reasonable grounds to believe there has been family violence or abuse.  Again, too much content, not much evaluation/analysis .

The 2006 reforms have had a range of positive impacts, encouragement of cooperation between both parties has aided in achieving justice for parties involved in relationship breakdown, and for the broader community. The introduction of family relationship centres (FRCs) and the requirement for compulsory mediation before court action in post-separation disputes have seen a decline in court filings for children’s cases, and a shift away from automatic recourse to court litigation.

Through the use of compulsory mediation, the law has encouraged cooperation from both parties in relationship breakdown to make a genuine effort at resolving post separation issues. This is both in line with CROC and the best interests of the child and in line with contemporary community values. "Contemporary community values', excellent inclusion of a Preliminary Theme here

However, the 2006 reforms have also created problems for parties involved in relationship breakdown. The reforms have in some cases discouraged fathers to cooperate in the long-term decisions about the child, by raising the expectations of fathers that they would be granted 50/50 equal time in parental responsibility. This has consequently reinforced the idea that parents have a right to their child rather than considering their needs and what is in the best interest for them. It has also created an expectation amongst mothers that they should agree to equal sharing.

As the 2010 SMH article “Reports show shared care needs fixing” discussed, shared parenting reforms are sometimes used in a way that is harmful to both children and to partners subject to family violence (discouraging mothers from raising family violence concerns due to the emphasis on facilitating the child's relationship with the father). Good media reference

While in general the laws encouraging of shared parenting is positive, and has proved successful experts, particularly in family violence have raised concerns that shared parenting reforms, in particular the ‘hostile parent’ provision have made it harder for women to raise issues of family violence or abuse for fear that the court would view them as ‘uncooperative’ and grant them less time with the children as a result. There is also no guarantee that children will be protected from violent or abusive parents. For example, in the cases of Murphy & Murphy and Robins v Ruddock, the children were ordered to spend time with their fathers despite allegations of sexual abuse. cooperation  can only be effective if the system does not discourage parents from raising legitimate concerns about genuine risk of abuse or neglect. Excellent high modality evaluative statement here.

In response to reports such as the 2010 Chisholm report ‘Family Courts Violence Review’, and cases such as Lewis v Wackett, the federal government passed the Family Law Legislation Amendment (Family Violence) Act 2011 (Cth) which aimed to provide better protection for families and children at risk of family violence and encourage cooperation of parents by removal of the ‘hostile parent’ provision, and applying firmer rules about dealing with family violence and child abuse.


From reading this essay (even without conclusion) I can tell that you have an excellent grasp of the content. The details you include are excellent and form the foundations of an extremely effective response. You use Laws, Reports and Statistics excellently as evidence for your points. (Cases and Media were less effective, maybe add a bit more here?)

I would say you have two points for improvement:
  • Structure: You need more clarity in how your ideas are organised. This includes a clear Thesis Paragraph which identifies the topics for your body paragraphs, clear body paragraphs focusing on different areas with appropriate motherhood statements (linking to the Thesis), and a solid conclusion (which I know you haven't written yet, but still). It should be very obvious when you move from one thing to the next, and it blended together a little bit for me.
  • Evaluation: You did this in a couple of areas, but you must focus your response on the evaluation of the mechanisms in achieving justice for parties involved in relationship breakdown. You had lots of content, lots of facts, lots of examples, but very few of them were evaluated as effective, not effective, partially effective, etc. Be sure that evaluative comments (EG - The law X was extremely effective in promoting justice for parties involved in relationship breakdown because Y) are the focus of your response

In reading your response, these two issues meant that it felt more like I was reading a "content drop" rather than a carefully planned evaluative response. Your content knowledge is obvious and extremely impressive, now focus on the evaluation itself  ;D

PS - In regard to what to include, the Domestic Violence content is definitely applicable here, but it is not a 'must include.' The focus is on what you are currently discussing, but DV can add some more variety to your discussion, if you choose.
« Last Edit: February 21, 2016, 11:21:58 am by jamonwindeyer »

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #5 on: February 21, 2016, 12:06:57 pm »
Hey, I'm not sure where I should add case studies to this !! Also do you think I have covered everything?

Hey mimi967! I've had a read and put some comments here:

Spoiler
Discuss (identify issues and provide points for and against) how the legal system has responded to the changing nature of parental responsibility

The Australian Family Law Act 1975 (Cth) (FLA) defines the family as ‘the natural and fundamental group unit of society, especially in relation to the upbringing of children”. This definition mirrors Article 23 of the International Covenant on Civil and Political Rights (ICCPR) which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Parental responsibilities are all the duties, powers, responsibilities and authority that, by law, parents have in relation to children. Laws regarding the care and responsibility of children after relationship breakdown are contained in the FLA, which was changed substantially by the Family Law Reform Act 1995 (Cth) (FLRA) and further by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (FLASPRA). Under the FLA, parents wether married or not, both have responsibility for the care and welfare of their children. This legislation emphasises the rights of children and the responsibilities of parents. A solid introduction, nice use of definitions! However, you are missing a breakdown of what the rest of the essay will be covering. You also need a point of discussion to carry through your essay, some kind of debate/argument/analysis you'll take through the remainder of your paragraphs.

In the twentieth century the idea of the ‘right to a child’ rather than ‘responsibility for a child’ was the main factor in deciding which parent was granted custody and guardianship of children.The Matrimonial Causes Act 1959 (Cth), was the first act to make laws in regard to divorce. the Matrimonial Causes Act provided fourteen grounds for divorce. When a couple obtained a divorce, one party (usually the mother) was given custody of the children and the other was ordered to pay maintenance. The party ‘at fault’ was usually not given custody of the children, this showed that the notion of parental responsibility was less important in the minds of many parents than the rights of access to the child. This is a solid content block, but it is just that. Content. Be sure each point is being discussed as part of a larger argument.

With the introduction of the FLA, came many changes to the way the law deals with divorce. Primarily the introduction of the ‘best interest of the child’ as the main consideration for deciding issues about custody and access to children. As well as the amendment so that the only grounds for divorce was the irretrievable breakdown of the marriage. Although the concept of fault was no longer relevant to the custody of children, parents still linked the idea of paying maintenance with access to the child, again emphasising parental rights over parental responsibility.

In the past ex-nuptial children were not given the same rights as nuptial children under the FLA, although In 1976 they were given the same rights under the Children (Equality of Status) Act 1976 (NSW). However it wasn't until 1988 that ex-nuptial children came under jurisdiction of the FLA. Before this, lots of mothers had difficulty collecting maintenance from the father of the child. But since 1988, it has become more difficult for father to ignore this responsibility. Good coverage of Law Reform and not just current laws. It is always relevant to cover the development of the current legal climate.

In 1988 the Child Support Scheme was introduced to address the problem that over 70% of parents avoided paying child maintenance. The scheme no longer took into account social security benefits when deciding how much maintenance should be payable. This made it far more difficult for liable parents to avoid paying maintenance, resulting in the numbers of non paying parents dropping to under 30%.Statistics are Awesome.

In 1995, after the ratification of Convention on the Rights of the Child (CROC), the FLA was changed substantially by the FLRA. These changes reflected the ‘best interest of the child’ and emphasised parental responsibility rather than parental rights to see or have custody of the child. The terms custody, guardianship and access were replaced with residence, parental responsibility and contact. These terminology changes have tried to emphasise the changing nature from parental rights to parental responsibility. The FLRA also introduced the consideration of family violence as a factor in determining parental responsibility, residence and contact for a child. This reduced the winner/loser mentality that has previously existed in custody disputes and as a consequence has reduced conflict between parents in decision making processes. However there have been criticisms about the reform including; concerns that the terminology changes were not actually changing parents idea about parenting, concerns of women making false allegations about family violence in order to prevent the father from seeing his children. Although research has shown that in the majority of cases such allegations are true. Another concern was that in 2005, a report written by the Australian Institute of Family Studies (AIFS) found that only 6% of children were spending close to equal time with both parents.

These concerns show the disconnect between the idea of parental rights and parental responsibilities for a considerable number of separating couples. These concerns and lobbying from father’s groups such as the Lone Fathers Association and Dads In Distress led to the idea of equal shared parental responsibility, which was introduced in the FLASPRA.
The 2006 reforms included major changes to the FLA through FLASPRA and changes to the family relationship services system. The aim of the 2006 reforms was to create a generational change in family law and a cultural shift in the management of parental separation, away from litigation and towards responsible, shared and cooperative parenting. The most significant features of the 2006 reforms are: the emphasis on the best interests of the child as the paramount consideration in family law matters and the right of children to know both parents and to be protected from harm.
Significant changes under the 2006 reforms were made about Family Dispute Resolution (FDR). The set up of Family Relationship Centres (FRC) and in particular the emphasis (and requirement in most cases) on mediation has been important in achieving quicker, cheaper and often more effective solutions for families. However dispute resolution is not safe guarded by court, so can in some cases be less effective. These sorts of evaluative comments should be more prevalent in your response.
Since 2006, there has been a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, however that does not necessarily mean a child must spend equal time with both parents. This has caused much confusion for some parents who believed they would be granted 50/50 equal shared parenting. As reported in the ABC article “Shared parenting 'hurting children’”, the reforms have raised the expectation of fathers and also created an expectation amongst mothers that they should agree to equal sharing. Overall the reforms have taken the focus away from what is in the best interest of the child.
There's also the risk that violence may be overlooked in the quest for shared-parenting responsibility. There are two provisions of the FLASPRA that are potentially putting women and children at risk of family violence. The first is that women may be afraid to raise issues of family violence or abuse for fear that the court would view them as ‘unfriendly’ or ‘uncooperative’ and grant them less time with the children as a result. The second is the provision of costs against a parent who makes false accusations of violence or makes untrue denials. Reports such as the Family Courts Violence Review and the Evaluation of the 2006 Family Law Reforms have found that both these provisions discourage women from raising concerns about family violence. These last two chunks, blended together with an appropriate point of argument, would form an extremely effective paragraph.

Right, so I didn't add to many comments in the essay because your content is solid, your writing is clear, and you are covering the right things. You use legal terminology really well throughout your response. I would say your response is lacking in a few areas, however:

  • You need more clarity in how your ideas are organised. This includes a clear Thesis Paragraph which identifies the topics for your body paragraphs, clear body paragraphs focusing on different areas with appropriate motherhood statements (linking to the Thesis), and a conclusion which brings everything together. Your paragraphs do not have motherhood statements that link to your Thesis, and this makes it difficult for the reader to link everything you are saying together.
  • While you do use Cases/Media/Report in your response, you do need more.
  • You need a central point of discussion (A Thesis) to carry through your response. This is up to you to come up with, but it should involve a central theme (EG - Justice, effective reform), which you then argue throughout the response. 'Discuss' implies points for and against, so pick a specific argument (you are alluding to how well children are protected throughout your response, this works!), and argue the good and bad in various areas of the legal response.

In terms of cases to add, this topic is difficult because not a lot of information is shared about Cases to do with Family Matters. Try Mulvany v Lane [2009] as a starting point, and besides that, search for Family Court cases. This specific case deals with the best interests of the child, so it suits where your essay is heading.

Besides this. I would say you need a little more emphasis on CROC (based on the arguments you are making in your essay), and perhaps even the Children/Young Persons Care and Protection Act.

Your essay is quite rich in content, you clearly know your stuff! You now just need to work on the finer points to bring everything together.

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #6 on: February 21, 2016, 12:50:19 pm »
Hi, I would love to receive feedback regarding this essay. I would love to know how I could further improve it so that it is of high quality yet is able to be written under examination time!!!
Thank you

Hi Gabriella! I've attached your essay with some comments throughout:

Spoiler
The law’s primary objective is to provide justice for all parties involved in legal disputes; however, through assessment in the R V Chio Rai Tang and Gordon Wood case, it is evident that the law has been ineffective in balancing the rights of those concerns and deliver just outcomes.  The R V Chio Rai Tang case involves Choi Kia Tang and three young companions who were stealing mangoes from a tree in the backyard of David Laxalle in February 1997 which lead to his death being stabbed several times. That sentence needs some breaking up with commas/full stops. The Gordon Wood Case commenced in June 1995, when a model and girlfriend of Gordon Wood, Caroline Byrne was found at the bottom of the cliffs at the Gap, Watson’s Bay.  These cases are examined through the criminal investigation process, criminal trial process and criminal sentencing process which constitutes the evaluation as to whether the criminal legal system delivers just outcomes for the victims, offenders and society. Good intro, though it may be appropriate to include your definition of a just outcome, how do you define successfully achieving justice?

The criminal investigation process (CIP), in the reporting of a crime, puts into motion the machinery of the criminal justice system. It therefore must be effective, as to achieve justice for the victim, offender and society.   The investigation process involved in the R v Choi Kia Tang case was marginally successful, purporting significant issues for the offender. When Tang was interviewed by the police he provided a false date of birth with NSW Police force, failing to comply to police responsibility to obtain the right identification in the Code of Practice for CRIME  and the Enforcement ( Powers and Responsibility) Act 2002 ( NSW) (LEPRA). Accordingly, when the offender was sentenced by Justice Hidden, it was erroneously believed that he was 18 years of age at the time of the killing. In fact he was 17 years and 4 months. This meant that at the time of the interview he had gained no legal advice or guardian and this meant the evidence was illegally obtained which in the form of a interview video, was presented before a jury that accused him guilty of murder. “ His three companions were sixteen years old at the time” and received good behaviour bonds because as stated by the judge “ the prisoner stood in a very different position from them”. Clearly, he was treated unfairly and his rights were neglected. This error made the successful appeal against conviction because it had an impact upon the admissibility of statement made by the prisoner to investigating police, judge and jury.

Another example which supports my stance is the R V Wood case in which demonstrates the ineffectiveness of achieving justice, however for all, in the investigation process.  Definitely avoid the first person statements. Essays must be written objectively, no 'my' or 'I.' Essentially, Wood appealed his seventeen year sentence in 2012 due to the evidence presented in 2008 to charge him was deemed circumstantial and poorly documented. The entirety of the appeal was based on the standing that suicide could not be ruled out as a case of death and therefore, the prosecution was unable to prove beyond reasonable doubt that Wood is guilty of murder. As signified in the case, Wood had multiple grounds to combat his miscarriage of justice, some of which include “Ground 3: The evidence and the opinions of A/Prof Cross caused the trial to miscarry.” and “Ground 6: The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor. According to the SMH news article ‘Wood appeals cliff plunge conviction’ (2011) which addresses ground 3, “Wood's murder trial miscarried as scientific evidence about his lover's cliff plunge was based on flawed assumptions”. Wood challenged that the testimonies that Ms. Byrne had been “spear thrown” from the “northern ledge of the Gap” (Wood v R [2012] NSWCCA 21) was used as evidence without admissible proof as foundation. This therefore, fails to uphold the Evidence Act 1995 and thus demonstrates that the law is ineffective in providing just outcomes for the accused.

Another determinant which helps to establish why the criminal justice system has not achieved justice is through examination of the criminal trial process.  This system includes a contest between two adversaries, which presumes that all are equal before court. The criminal trial process involved in the R v Choi Kia Tang case was ineffective, significantly affecting all. The court process was extremely time consuming, draining and unfair for both Tang and Laxalls family , which prevented them from progressing their lives. Tang had “spent seven years on remand before being freed after 80 minutes of jury deliberation”.  ( Sun Herald- Young people should shun weapons). At the conclusion of the second trial, the Judge made a crucial error giving “Jones v Dunkel” directions to the jury which influenced their decision. This conflicts with the very basis of the criminal trial process in NSW, whereby the accused has the presumption of innocence on his side. As a result, the Appeal Court overturned Tangs convection yet a new trial was ordered. Additionally, plea- bargaining promoted inequality between Tang and his friends as he was found of a more serious crime and severe sentences. Although it reduced the cost and delay in the court system, it reduced the sentences for the other offenders as mentioned previously, which essentially affected the victims. By the third trial in 2004, he had suffered from depression and the victim’s family where extremely “ angry” and “exhausted”.  The court process affected The greater society was also effect by the court process as resources and time had unfairly been used, due to preventable court errors causing distrust in the justice system had been generated.

Furthermore, in regards to the Gordon Wood case, there has been a miscarriage of justice through the time taken for the case to be brought to court and the failure to concrete of a cause of death, justifying the ineffectiveness of the judicial system, especially for the victims. The court case took twelve years for any sort of progress to be made regarding the case, at the end of these twelve years Wood was trialed and convicted. However, during those twelve years the case was treated as a suicide, with a coronial inquest in 1997 and an open finding in 1998 before any evidence could substantiate a conviction for the accused. There were three separate court cases regarding Wood, the first two (R v Wood [2008] NSWSC 817, 6 August 2008 & R v Wood [2008] NSWSC 1273, 4 December 2008) were his trials and eventual conviction, lasting just over three months combined. The final case (Wood v R [2012] NSWCCA 21, 24 February 2012) consisted of Wood appealing his conviction to be acquitted, taking approximately nine months to achieve. Yet, after fifteen years of court cases and inquests, the question of Ms. Byrne’s death has not been finalised, leaving the family with emotional distress from fighting in the legal dispute. This evidences that the legal system fails to support the victims yet again. I want to suggest after reading this paragraph that you cut back on explanations of the case circumstances. Focus on your evaluation/analysis, you do not need to describe the case in full detail in an essay written for an exam.

Moreover, the criminal justice system failed to be effective in the criminal sentencing process impacting all in a negative light. This is justified through the R v Choi Rai Tang case where Tang through all 3 trials was found guilty by jury of the murder of David Laxalle and was sentenced to imprisonment for 15 years, with a non-parole period (minimum) of 11 years.  Before passing the sentence the judge made a comment that he felt “Tang’s spontaneous reaction to protect his younger friends, and while that explained his actions, it certainly did not justify them.” He felt that Tang did not intend to kill Mr. Laxale, but had nevertheless intended to cause him very serious harm. ( Actus rea). Jean- Pierre Laxale was outraged with the sentences stating that “Judges gave no consideration to victims or their families when making decisions. You can serve more time in prison for fraud then for murder- that doesn’t add up”. ( ABC Archives Transcript). However in July 2004, a jury acquitted Tang and he walked free after an appeal to allow the jury to hear evidence by a witness. This case, at the time, did not reflect community standards.  Clearly four people were involved in the murder of the victim, the 3 boys were accomplices in the stabbing and evidence proved that one other boy apart from Tang was in possession of a knife. As such the community were in outcry at the prospect of only one person taking the fall for the crime and continually supported Tang.  Explicitly explored, justice was not served as all of the accused were acquitted, a situation that could have been avoided if the justice system was effective.

This deficiency of the criminal sentencing process is further evidenced in the R v Wood case by Ground 6 which breaches the Legal Profession Act 1987 – Rules that states in section 64. “A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.” Wood’s appeal challenged that the prosecutor – Mr. Tedeschi had “advantaged motives for the applicant to kill Ms. Byrne” (lawlink.nsw.gov.au) and had used “pure speculation and emotion to get a conviction” (SMH – Wood Will Miss Crucial Day in Court) [2011]. Responding to this claim, Justice Latham declared “that in asking the jury 50 questions in his closing address, Mr. Tedeschi had asked them to draw inferences not available from the actual evidence presented, which would constitute a fundamental problem'' in the sentencing of the case.  Society was also deeply affected concerning the collapse of justice for the accused which was manifested in the emotional trauma and negative public opinion caused to Wood. In a short interview documented in the Daily Telegraph “When asked how he felt being a free man for the past 16 days, he said: “I can’t go there, it’s too raw for me at the moment” details the emotional and physical struggles suffered by Wood to adjusting to life as a free man. This violates the law’s duty to provide just outcomes, including protection of those involved from emotional distress. Additionally, the greatest miscarriage of justice can be attributed to Wood’s three years and three months false imprisonment, leading Wood to pursue a $1 million compensation case due to his life in London being taken away from him, causing him to start his life from scratch. (News.com.au) – “Gordon Wood likely to seek compensation over his acquittal”) [2012]. This instance in the Gordon Wood case strengthens the ineffectiveness of the law in constituting a balance of rights and resultantly evinces the failure of the legal system in providing justice to high profile cases, especially the accused.

Conclusively, from the assessment above, it can be deduced that the judicial system is ineffective in providing just outcomes for the offender, victim and society as illustrated through the R V Chio Rai Tang and Gordon Wood case in which all aspects of the criminal justice system: the investigation, trial and sentencing failed to perform exorbitantly.

My comments throughout the essay are quite limited because, quite frankly, it is a bloody brilliant essay. Well written, good content, and a fairly clear argument throughout. A few points I would raise as more general feedback rather than being in response to specific parts of the essay:

  • Make sure that your paragraphs have clear motherhood statements linking to the Thesis, and a clear conclusion. Your structure differs slightly in that you split each paragraph in half, one for each case study, but make sure that when you start the second half, what you are discussing remains clear.
  • You have here an 1800 word essay: Unfortunately, there is absolutely no chance of replicating an essay of this length in an exam, especially for the Crime section. Even cracking 1000 in that section is difficult. You need to drastically cut back the essay, and the best way to start that would be cutting back on the case details. A HSC Marker isn't interested in case details beyond what is absolutely necessary to understand it, they want evaluation and analysis. Try trimming back the detail for each case.
  • Try developing an argument that you will carry through your essay, a more properly developed Thesis. Right now, your Thesis says simply, "I'm going to evaluate the legal system using these cases." You need to add an actual evaluative argument or analysis. Is your essay going to say that it was absolutely ineffective? Partially effective? This needs to be established from the get-go.

Besides this, I will also issue a word of caution. You are focusing on two cases, which greatly restricts the amount of "ammunition" you have to answer a question. This essay is hitting the mark with analysis, it is detailed, but it is quite narrow in scope. This means it won't be easily adaptable to other questions. You may want to prepare a more general response which focuses on the Processes as a whole, rather than just their role in these individual cases.

That being said, this is an absolutely brilliant piece of work. Well done!  ;D

gabriellav

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Re: Free Legal Essay Marking!
« Reply #7 on: February 21, 2016, 04:24:28 pm »
 Thank you so much for you feedback Jamon, I will defiantly take them on board!

elysepopplewell

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Re: Free Legal Essay Marking!
« Reply #8 on: February 22, 2016, 01:10:18 pm »
Hi, I would love to receive feedback regarding this essay. I would love to know how I could further improve it so that it is of high quality yet is able to be written under examination time!!!
Thank you

This essay will prepare you very well for a lot of sections of the syllabus that you could be asked about in exam. You've really set yourself up for success in this essay - great job!
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chuckiecheese

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Re: Free Legal Essay Marking!
« Reply #9 on: March 05, 2016, 08:15:21 pm »
Hey guys,

I have my half yearly's coming up (a week, freaking), and my teacher set us this question on Juries. So, I have a feeling it may be on the exam, possibly. So, right now I'm trying to slam the question as best as I can.

For one thing, the media reports that I use throughout are slightly old but they're really the best ones I could find, so does that make my point irrelevant?

Any critiques of yours would be great.

Cheers

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #10 on: March 06, 2016, 01:35:50 pm »
Hey guys,

I have my half yearly's coming up (a week, freaking), and my teacher set us this question on Juries. So, I have a feeling it may be on the exam, possibly. So, right now I'm trying to slam the question as best as I can.

For one thing, the media reports that I use throughout are slightly old but they're really the best ones I could find, so does that make my point irrelevant?

Any critiques of yours would be great.

Cheers

Hey chuckiecheese! I've attached your essay below with some helpful comments.

Spoiler
To What Extent Does the Jury System Achieve Justice?

The extent to which the current scheme regarding juries in the criminal justice system achieves justice is contentious. Good start, though I think a definition of what justice is, and why it is vital for in a judicial scenario, would add a little more sophistication than just flat responding to the question. Personal preference! Whilst Juries enshrine the values of the community, by their nature this may limit justice for the offender, as they may not necessarily have working understanding of the NSW criminal justice system. Be careful here, your Thesis/intro should not delve too far into arguments themselves. It's on the knife edge of too much too soon. Moreover, the community is often heavily influenced by the media, and, as a result, juries may be fallible to externally imposed preconceptions of a case, limiting justice for the parties in turn. Similarly, reform to the nature of jury verdicts may similarly compromise the outcomes of a case due to implications on the standard of proof, thus reducing the ability of juries to achieve justice. Good intro, but as aforementioned, perhaps delving into the arguments too much. These sentences should form the start of your body paragraphs. Further, you should try to finish your intro with something linking to the question again. Ties everything together a little nicer.

The extent to which juries understand the criminal justice system may limit justice for the offender. Lovely, but you put it better in your intro. As juries are a random selection of the population, they may not necessarily understand the legal system. This can thus lead to unequal outcomes for the victim and the offender. A NSW Bureau of Crime Statistics Report from 2008 found that only roughly 22% jury members were able to correctly define ‘beyond reasonable doubt’.This is a fantastic statistic! Moreover, Former DPP Nicholas Cowdery in SMH 23/11/13 stated that judge only trials were in fact more effective in cases that involved ‘technical’ legal issues, as they were ‘less impressed by facts of the offense’. It is arguable, however, that juries may be more effective as a judge may favour the offender in fear of an acquittal. Explain this point a little bit more.  In the same article it was also reported that 55.4% of these judge only trials led to an acquittal, compared to 29% in trials involving a jury. Thus, the limited knowledge of juries in some cases strikes a blow to their ability to achieve justice.Wonderfully argued with good evidence, nicely done here!

The influence of the media on juries can undermine their ability to achieve justice. The media in many cases has enormous powers to create substansial public interest in a case, however this can limit the effectiveness of juries as the community is often fallible to sensational coverage. Media influence in the case of DPP v Gittany caused Simon Gittany to choose to have his case heard without a jury, as he believed the opinion of the public to be skewed. Use words like, the offender, the prosecutor, the judge, etc, rather than names. As such, media influence caused Gittany to concede the fundamental right to be judged by peers removed the possibility for the reflection of society’s values, and meant Gittany nor the DPP could not appeal a sentence on the basis that the judge gave misdirection. Good example, but your sentence structure was a little messy in that little chunk. Be sure it reads clearly. Moreover, media influence in the case of DPP v Loveridge was criticized by former DPP Nicholas Cowdery in SMH 10/11/13 who commented that  ‘shock jock’ media had perpetuated an incorrect police charge of murder, subsequently inciting exaggerated expectations for Loveridge’s sentence and led to community outrage following his sentence of 4 years. The fallibility of juries to a sometimes-aggressive media augments contention over their effectiveness. Again, nice points well argued!

Reform to the jury system through majority verdicts has created contention in the use of juries. This wording is a little messy, try to add some sophistication! Reform of the Jury Act 1977 (NSW) Section 55F occurred in order to provide protection from the threat of ‘rogue jurors’, partially in response to the recording of 42 hung juries per year in BOCSAR: 2002. You can only use the abbreviation if you have previously used the full wording. Also, try and use the amendment name and year when possible, though I like that you added the section! In a Stacklaw report Majority Verdicts, however, it was stated that ‘those who argue passionately for majority verdicts have misplaced confidence’ as defendants are ‘pitted against all sources of the community’; notably the mentality that ‘the police wouldn’t’ have charged him if he didn’t do it’. I'm a little unsure what you mean by this argument, I think it needs a little clearer explanation beyond the quotes. As such, the use of an 11:1 jury may compromise the English customary law concepts of the standard of proof and ultimately lead to higher conviction rates of innocents. Furthermore, the notional qualities of the reformed Jury Act conflict with the common law principle contained in Cheatle v The Queen, in which the High Court ruled that the constitutional right to a trial by jury (Constitution section 80) could only be held by a unanimous verdict. It is easy to be cynical about the benefits of eroding the standard of proof in such a way when Rhiannon: 2006 quoted the BOCSAR in finding that majority verdicts would only save 1.1% of court time. Such reforms augment the contention in the effectiveness of juries. I would say that this is the weakest paragraph (by a fraction). The argument isn't as cohesive, I had to read some sentences over a few times to follow your train of thought. Work on sentence structure and very clearly explain your arguments to the reader.

Thus, the extent to which juries provide just outcomes can be seen as contentious as juries may not understand the legal system and are fallible to media interest. Moreover, law reform eroding the standard of proof provides that juries have become increasingly limited in their ability to achieve justice. You need a stronger conclusion. Link to the question should be stronger. The conclusion should be of a similar structure to your Intro, that is, address the question, give what your argument was, list the points you made, conclude by directly linking to the question.


This is a really solid essay! I don't have much to say beyond the comments, a few little things I'd change, but this is bloody brilliant! Take a read and let me know if you have any queries. And in response to the media articles being 'old,' 2013 is still quite recent. Obviously the newer the article the better, but 2013 is totally cool!

Well done  ;D

Beata.Lobo

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Re: Free Legal Essay Marking!
« Reply #11 on: March 19, 2016, 11:01:26 am »
Hi there,

I have attached my essay, is there any way I can cut back my response? Is there any thing else I need to work on? Thanks.

Beata

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #12 on: March 19, 2016, 01:58:06 pm »
Hi there,

I have attached my essay, is there any way I can cut back my response? Is there any thing else I need to work on? Thanks.

Beata

Hey Beata! Thanks for posting. I've got your essay but since it is a little longer I want to give it the right time to have a good read, check back tomorrow for some feedback!!  ;D

jamonwindeyer

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Re: Free Legal Essay Marking!
« Reply #13 on: March 20, 2016, 01:39:44 pm »
Hi there,

I have attached my essay, is there any way I can cut back my response? Is there any thing else I need to work on? Thanks.

Beata

Okay, here we go Beata! I tried to comment on the "importance" of each paragraph, perhaps give you some ideas where you can cut back. Here is your essay with some helpful comments throughout  :D

Spoiler

Assess the use of the adversary system as a means of achieving justice

In Australia, the adversarial system is meritoriously commendable as a means of achieving justice. The adversarial system is a legal system utilised in common law countries such as Australia, the United Kingdom, the United States and India whereby two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to impartially determine the truth of the denunciation of the accused. As a result of employing the adversary system, this legal system is occasionally criticised for failing to meet society’s needs and achieving justice for the victim, the accused and society. The alternative legal system other countries employ is the inquisitorial system. Unlike the adversarial system, the inquisitorial system is the legal system practiced by countries such as Germany, Italy and France that jurisdictionally authorises the court to be actively involved in determining the facts of the case and the conduct of the trial. Therefore, both the adversarial and inquisitorial systems beneficially, responsively and enforcedly intend on maintaining justice and upholding society’s needs. Good introduction! Try leading with something about justice. The focus of this question isn't actually on adversarial courts, it is on just outcomes, and you are just analysing how the adversarial system achieves this. I like the inclusion of the inquisitorial system, but make sure the focus remains on adversarial. Obviously, you cannot cut back this paragraph too much. Finally, be sure to list the topics of your body paragraphs in your introduction.

A paramount aspect in effectively utilising the adversarial system is the implementation of juries. Juries are sworn twelve lay members who are empanelled and are convened to render an impartial verdict, based on the evidence of the case presented by both the prosecution and the defence. The implementation of the jury system is addressed under Part 5 Section 26 of the Jury Act 2006 (New South Wales), the legislation states that ‘’ The sheriff must issue a summons to each person selected requiring the person to attend at the court or coronial inquest, at the place and at the time specified in the summons until discharged by the court or coroner’’, this law reinforces meeting society’s needs and the application of the rule of laws. You do not need to explain what a jury is. The marker knows. Direct all your words towards analysis and evaluation. In the ‘’A return to village life: internet bursts the bubble protecting juries’’ newspaper article, Justice McClellan states that only three percent of all criminal trials in New South Wales are conducted with a jury, this statistic alarmingly insinuates that the majority of criminal trials are not conducted with a jury and therefore, is not responsive, does not meet the protection of individual rights, society’s needs and confirms that justice has been achieved. Make sure you read over your essay to check that it is readable, this sentence was quite long and a little all over the place. Juries play a vital role in achieving justice for the offender, victim and society. A case that discloses the importance of juries is Regina v Bilal Skaf; Regina v Mohammed Skaf [2006] NSWSC 394 (28 July 2006), this case examines the Skaf brothers from Sydney, having gang raped several young women in Sydney in 2000. In one of the Skaf appeal cases the judicial officer ordered a retrial due to the fact that two jurors visited the crime scene to look at the lighting in the park at night. This case law insinuates the responsiveness, the application of the rule of law and whether justice has occurred or not. This analysis could be improved. Be specific, why has this affected the outcome of justice? Be sure that everything you talk about is eventually directed back to the topic.Advantageously, juries lawfully allow for impartiality, justice and the application concerning the rule of law as a means of achieving justice in the adversarial system.

The role of juries in the inquisitorial system is fairly effective as a means of achieving justice. Juries decide on the matter of fact, and sometimes on the matter of the law. While the jury will declare a verdict, the reasoning behind the verdict and the deliberation among jurors cannot be made public, this is known as jury secrecy. Hence the defence can appeal, theoretically speaking purely on procedural grounds, such as the failure of a prosecutor to disclose evidence or an error in the evidence revealed at the trial. However, the adversarial system uses juries to impartially and open-mindedly determine the verdict of the accused whilst strictly adhering to the Jury Act 1977 (New South Wales) and any other relevant legislation regarding the nature of the crime. Thus, the employ of juries in the inquisitorial system is somewhat effect in achieving justice for the victim, accused and society. You definitely do NOT need paragraphs specific to the inquisitorial system in your essay. This is where you can cut back, only use the inquisitorial system as a comparison to improve other arguments.

Another primary factor that contributes to the success of the means of achieving justice is the role of judges in the adversary system. Judges deliver points on the rule of application of law and instruct the jury to deliver the verdict of guilty or not-guilty, based on the Latin concept ‘’In Dubio pro reo’’, based on the legal principle of presumption of innocence. In the adversarial system, the judge’s role is to: make sure the parties are treated fairly, create more confidence because he/ she is an independent decision-maker and is independent of the prosecution in criminal cases or the parties in civil cases. Disadvantageously, the judge cannot offer the parties assistance. This could be a waste of the judge’s experience if some parties are poorly represented. The newspaper article ‘’ Australia’s most severe penalty that only a handful of prisoners receive’’ conveys the alarm insinuating that offenders receiving life sentences with non-parole periods are impossible to be given a release date, depending on the nature of the crime. In the newspaper article, ‘’news.com.au understands here are less than 15 of the approximate 1019 prisoners currently serving life sentences in Australia who have had the penalty imposed on them’’, therefore enforceability, responsiveness, protecting individual rights, meeting society’s needs, applying the rule of law and determining whether or not just has been achieved is conveyed in this newspaper article. Rather than simply list the legal themes, try exploring just one of them in depth. Explain what you have determined about the jury system from the article. Why is it responsive/unresponsive? Why is it enforceable/not enforceable? Under Section 43B of the Judicial Officers Act 1986 (New South Wales), a judicial officer is ‘’ A Judge or associate Judge of the Supreme Court, a member (including a judicial member) of the Industrial Relations Commission, a Judge of the Land and Environment Court, a Judge of the District Court, the President of the Children’s Court, a Magistrate, or the President of the Civil and Administrative Tribunal’’, and Section 77 of the Commonwealth of Australia Constitution Act 1901 (Commonwealth), ‘’Power to define jurisdiction -With respect to any of the matters mentioned in the last two sections the Parliament may make laws: defining the jurisdiction of any federal court other than the High Court; defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; investing any court of a State with federal jurisdiction’’, both of these Acts ensure the application of the rule of law, ensuring that no one is above the law. Accordingly, the role of judges in the adversarial system is essential in establishing the use of the adversary system as a means of achieving justice.  Your conclusive sentences are strong, but your analysis has not achieved this outcome in the paragraph. You haven't, for me, proved that judges are effective in achieving justice?
The role of the judge in the inquisitorial system is imperative in the success of the legal system as means of achieving justice. Judges are required to direct the courtroom debate and to come to a final decision. The judge assumes the role of principal interrogator of witnesses and the defendant, and is under an obligation to take evidence until he or she ascertains the truth. It is the judge that carries out most of the examination of witnesses, arising from their obligation to inquire into the charges and to evaluate all relevant evidence in reaching their decision.  However, it is now accepted that the defence should have the right to confront each witness during at least one stage in the proceedings. Therefore, the role of the judge in the inquisitorial system is imperative in the success of the legal system as means of achieving justice.Same thing, this paragraph does not relate to the question and so is unnecessary
The role of parties and legal representation plays a vital function in the success of the adversarial system as a means of achieving justice.  Parties in a criminal court case are the prosecution and the defence. In New South Wales, there are no firm figures across all NSW courts, in 2008, 39.48% of parties in the New South Wales Local Court had no legal representation’’, this reveals that not every accused is financially able to have legal representation, therefore is not resource efficient, accessible, does not protect individual rights, fails to meet society’s needs and is unable to apply the rule of law and certainly does not attain justice.This is a little closer, but again, listing legal themes does not constitute powerful analysis. You are much better of saying "The fact that only 39.48% of parties in NSW local courts had legal representation (BOCSAR) is an obvious testament to its inaccessibility, and thus evidence of a failure to achieve just outcomes for offenders." Then even add other sentences. But don't just list, it isn't as effective.   In the adversarial system, parties are responsible for gathering witnesses and building a case for the State and the accused, respectively. Legal representation in court is paramount to the success of the prosecution or the State or the defence. In the adversarial system, each party has a right to choose a legal representative. In this way they can choose someone they believe will present their case in the best light. Whereas, the adversary system relies on both sides being equally represented so the truth can come out. One party to a case may not be able to afford legal representation, or may have inferior legal representation. The Dietrich v The Queen (1992) 177 CLR 292 case initially established a limited right to legal representation in Australia. Therefore limitedly meeting the protection of individuals’ rights and failing to provide justice where defendants come from a low or poor socioeconomic status.Good! So, the role of parties and legal representation in the adversary system is successful as a means of achieving justice.
In the inquisitorial system, the implementing of parties and legal representation is diminishable and therefore, unessential in a court proceeding. Parties to a court case do not play a significant role in court proceedings, as they are not in control of their case. The parties are able to: fight their own battle, engage legal representation to present their case in the best possible light, decide what facts are to be brought before the court. However, party control can lead to: further animosity, high cost of legal representation and delays that cause hardship. As a result of the increased role of the judge, legal representation regularly plays a minor role in court proceedings. Legal representation may reduce the judge’s burden, to ascertain the truth. They can also question witnesses and address court in assisting the judge to discover the truth. Parties and legal representation do not play an important role in the inquisitorial system and so, are not responsive, do not meet society’s views and fail to accomplish the achievement of justice. Therefore, the role of parties and legal representation play a diminishing role in the effectiveness of the inquisitorial system as a means of achieving justice. See above

The rules of evidence and procedure is crucial to the success and effectiveness of the adversarial system. Evidence that is perceived to be prejudiced or impartial is inadmissible. The Em v Regina [2006] NSWCCA 336 case insinuates the evidence presented was inadmissible and was collected off-the-record. As a result of the collection of audio recordings and it became inadmissible, the judge upheld the appeal and ordered that the order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 be vacated. This case law, integrated with Section 137 of the Evidence Act 1995 (New South Wales), disclosed that the unlawful collection of evidence is inadmissible and therefore useless in the acquittal or sanctifying of the accused. This case law and Act is useful in the application of the rule of law and determines whether or not justice is achieved.Is justice achieved, or not? Be definite with your analysis! Thus, the rules of evidence and procedure contributes to the success of the adversarial system as a means of achieving justice.

In the inquisitorial system the use of evidence and procedure is somewhat effective as a means of achieving justice. Rules of evidence and procedure make the process fair: oral evidence helps reveal if the witness is sincere, the process of examination-in-chief and cross-examination allows both parties to present their cases and test the evidence of the other party all parties are treated alike some types of evidence are not permitted. This is to protect the parties and in the interests of justice. However, problems could arise from the following: witnesses may be intimidated and say something misleading, witnesses can only respond to questions and cannot tell their own stories in their own words, expert evidence could be unduly relied upon, not all evidence may be brought out and the truth may not be reached. The rules around admissibility of evidence are significantly more lenient.  The absence of juries in many cases alleviates the need for many formal rules of evidence.  More evidence is likely to be admitted, regardless of its reliability or prejudicial effect.  Evidence is admitted if the judge decides it is relevant. In many inquisitorial systems, there is no hearsay rule for example, France, Belgium and Germany. It is up to the Judge to decide the value of such testimony. As the judge is the most active member in an inquisitorial court, the judge uses evidence to determine the facts of the case and the verdict of the case, either guilty or not guilty. Hence, the use of evidence and procedure attributes to the means of achieving justice in the inquisitorial system. See above

In the adversarial system, the process of the criminal trial is key to the success of the defendant being acquitted or sanctified. Rules of evidence and procedure are strict in the adversary system. The criminal trial is when all of the facts of the case are heard and a judge and/or jury determine a verdict of guilty or not guilty. It is designed to resolve accusations usually by the government, the Crown or Regina against an accused, the defendant and thus, is used to ensure that the trial is unprejudiced and dispassionate and that both parties have an equal opportunity to present their case. In the adversarial system, some rules of evidence are that only certain types of evidence are admissible, and others are inadmissible: only relevant and reliable evidence is allowed; this can come in the form of oral, documentary or expert evidence; inadmissible evidence includes hearsay evidence, and evidence that has been obtained unlawfully; these rules ensure that parties are treated fairly. Some rules of procedure include a hearing is to be single and continuous; questioning stages are organised strictly and delays will occur but are ideally minimised. Consequently, the employ of rules of evidence and procedure is essential in the success of the adversarial system as a means of achieving justice. This paragraph does not contain an analysis, and this stems from the fact that it contains no LCMTR. What you have instead is an explanation of the rules of evidence, which is not what the question wants, it wants a judgement!

In the inquisitorial system, the process of the criminal trial somehow leads to the success of this legal system. There is a reduced emphasis on austere rules of evidence and procedure compared to the adversary system due to the emphasis on the truth. What constitutes admissible or inadmissible evidence is versatile, depending on the evidence presented. For example, hearsay evidence can be acceptable, there is greater dependency on written evidence and witnesses can tell their accounts incessantly without interruptions. The process of the criminal trial is somewhat important in the function of the inquisitorial system. Accordingly, the process of the criminal trial is not emphasised in the functioning of the inquisitorial system as a means of achieving justice. See above

The adversarial system is highly commendable as a means of achieving justice. Implementing the adversarial system is more advantageous and effectual than the implementation of the inquisitorial system. Whilst both legal systems work similarly, the adversarial system works more effectively because of the protection of the accused, victim and society’s needs are more protected is formally conduct, comparative to the informal, inquisitorial system. This is a solid conclusion!


This is a solid start of an essay, definitely filled with content knowledge! You've clearly done your research  ;D

I see two issues with this essay, the first of which is the depth of analysis. You absolutely MUST focus on making judgements about the topic at hand. Explanations of legal concepts are unnecessary (your hand will thank me in an exam situation!). Further, the analysis you did have was a little superficial. Instead of listing 5-6 legal themes per point, try focusing on one and explaining in detail. Why is the law/case evidence of effectiveness/responsiveness/etc, and thus, how does it achieve just outcomes? Quality over quantity  :D

Second, and this will help your length cut down, the essay gives far too much time to the inquisitorial system. This was not asked in the question you provided, and thus, would not be considered relevant to a marker. I LOVE that you want to make comparisons between the two, but you can do this in a single paragraph, just referencing the inquisitorial system to back up other arguments. Devoting whole paragraphs is a little excessive for this question.

So, to improve this essay, try focusing on making judgements about the different areas you are discussing, rather than just explaining how they work. This is an assess question, the markers want to know what you think  ;D

Besides that, you clearly have a wealth of content knowledge to draw on. This is a great start!


Booboo123

  • Guest
Re: Free Legal Essay Marking!
« Reply #14 on: March 23, 2016, 10:14:33 am »
Hello , I was wondering if it's alright if you mark my lockout essay? 
I'm not sure if I'm answering the question properly and it's not finished yet.
Cheers. :)
Assess the effectiveness of New South Wales’ On Punch legislation and lock out laws on reducing alcohol fuelled assaults

As the controversial concern for the vision of Sydney’s vibrant nightlife increases, the need for reducing alcohol fuelled assaults become more important, as it’s a main factor in protecting society from harm. However, the input of media and community outcry of two atrocious deaths in Sydney CBD, resulted in a ‘rush’ of NSW’s one punch legislation and lockouts laws, have become somewhat ineffective as not enough measures are taken to ensure the needs are met for the community.

On 21 January 2014, the government introduced a range of new measures to tackle drug and alcohol related violence and over the course of two years the amendment has stirred a society backlash on the ineffectiveness of dealing with alcohol fuelled assaults. Prior to all the backlash, there was already a controversial debate on whether the introduction of lockout laws are effective. This is clearly demonstrated in the media article “Crimes and Other Legislation Amendment (Assault and intoxication) Bill 2014 and Liquor Amendment Bill 2014.” During the reading of the bill Hon. Michael Gallacher has announced that ‘more needs to be done to improve the safety and amenity of the Sydney central business district’ particularly during night time and to cover those safety issues. One of those ideas to deal with these measures were the Government’s tough and comprehensive package. The package is practically a policy designed to address the escalating problem of alcohol-related violence and coward punch attacks in Sydney CBD, and one of those points in the package is the precinct-wide freeze on liquor licences for new pubs and clubs which now refers to the Liquor Amendment Act 2014.

The core of the Liquor Amendment Bill relies on the imposition of lockouts and last drinks in the expanded CBD and any other area that the regulations subsequently specify it’s the underlying ideology of the bill is that since it worked in Newcastle it will work in Sydney. It’s the assumption that since the introduction of lockouts and last drinks reduced violence in Newcastle it will also have the same result in Sydney. The assumption of this is by far contradicting as today the enforcement of the Liquor Amendment Act 2014 imposes restrictions on the lifestyle choices of people who want to be entertained while at the same time would like to have a drink at 3.00am. It can be argued that there’s an undeniable impact on the night time economy, where businesses are being penalised whom they had nothing to do with the recent violence. In a sense thousands of people will no longer want to stay in licensed premises past 3am once alcohol is no longer served but instead will try to go home while being out in the street intoxicated. Especially when 3am is the time for taxi changeover, more people will be more upfront to start a fight as less transport is available and this is a problem the government needs to address. It does not stop alcohol fuelled violence at that time but instead it increases the likelihood of violence during the 3-5am period.
Yet, what’s the point of a 3am lockout if there’s a casino that can stay open and trading all night?

The fact that the casino’s boss announce that the Sydney’s Star Casino is ‘one of the safest venues in the world’ means that it should not be part of the lockout laws is quite confronting, as crime figures has demonstrated that the Pyrmont venue is one of the most if not dangerous in the state. This can be seen in the Sydney Morning Herald article “The Star doesn’t need Sydney’s lockout laws, says casino boss.”  The Star casino continues to enjoy exemption from the late-night laws which enforce 1.30 am lockouts and 3am last drinks, which his claim contradicts that of the Bureau of Crime Statistics and Research which demonstrated that during the last 2 years, alcohol related assaults has risen by 46 per cent, an average of 6.3 assaults per month. This associates to 75 assaults, which is three times as much as the central Sydney nightclub Ivy, which was named as the state’s most violent area in 2014. It’s this that the lockout laws are ineffective as people who often visited the Sydney’s CBD area will just head to other areas that are exempted from these laws that is deemed entertaining while at the same time be able to have drinks, and the result of this has led to a quite significant increase of alcohol-fuelled violence in Pyrmont. The legislation should not only be used in just the Sydney CBD district but be implemented right across the State, preventing people moving to other pubs, however it’s unlikely that will happen especially to the Star’s casino, due to the fact that it revenues large sums of money which in turn is given to the government. Hence the lockout laws are quite ineffective, as restricting the alcohol availability would make people be more eager to get drunk whilst at home or force them to move to another area increasing the trend of assault in the area.

On the other hand, the lockout laws have curbed alcohol related violence since their imposition but only in areas that have been potentially been known as a threat to society safety. This is clearly conveyed in The Age’s article “Why all Sydneysiders should be grateful for the lockout”, where a study has released that in Newcastle, the sixth biggest city in Australia, demonstrated that the city struggled with high levels of alcohol-fuelled violence for a number of years, until in 2008, the city decided to reduce the alcohol-related violence measures must be implemented and this was to stop selling alcohol in a small area of the city after 3am instead of the previous 5am. This modest two-hour decrease in the availability of alcohol is effective as it has reduced alcohol-related violence in Newcastle since March 2008 by more than 50 per cent. This new impact has later increased the number of smaller bars and licensed restaurants as a means of adapting to the new lockout laws and now Newcastle’s nightlife is much safer, diverse and prosperous. This can be further reinforced as according to the NSW Bureau of Crime Statistics and Research (BOSCAR), assaults declined more than 40 per cent in Kings Cross and 20 per cent in Sydney’s CBD after the alcohol availability was restricted in February 2014. The cities experience of reduced trading hours and availability reflects that of international cities such as Los Angeles and San Francisco, as well as progressive countries such as Norway and the Netherlands. The data is clear that effective and modest earlier last-drink measures and a safer and vibrant nightlife with plenty of jobs can comfortably co-exist.