UNIT 4 OVERVIEW- TOWARD THE EXAM

Transcription

1 VCE LEGAL STUDIES UNIT 4 OVERVIEW- TOWARD THE EXAM presented by ANNIE WILSON (Presbyterian Ladies College) September 2015

2 Overview of session 3: 11.45am 12.30pm An overview of the Unit 4 course with a focus on: Preparing for the exam- possible exam questions, key task words, common errors. Recent changes/recommendations including: VCAT, Jury, criminal and civil reforms & elements of an effective legal system

3 Exam mark allocation Unit 3 50% (approx marks) AOS 1 - Parliament 12.5% (9 mrks 12.5%) AOS 2 - Constitution 25% (17 mrks 25%) AOS 3 - Law-make Crts 12.5% (9 mrks 12.5%) Unit 4 50% AOS 1 Crts & VCAT, ADR 20% (14 mrks 20%) AOS 2 Adversary, crim, civil, 30% (21 mks 30%) jury, recent changes.

4 AOS 1. Dispute Resolution Methods The reasons for a court hierarchy Original and appellate jurisdictions of the Victorian - Magistrates Court, - County Court, - Supreme Court (Trial Division) - Supreme Court of Appeal

5 Past exam questions Audrey has commenced civil proceedings in the Supreme Crt (Trial Division). Provide one reason for the existence of a court hierarchy. Refer to Audrey s dispute in your answer. (2 marks) [2014] Sophie has a civil dispute with...and is seeking $ in damages. Sophie thinks her trial will be heard in the Magis Crt. Outline why this statement is incorrect. (1 mk) [2013] Using the Magistrates Crt as an example, explain the term original jurisdiction. (3 marks) [2012] Outline the original jurisdictions of the Victorian Supreme Court (Trial Division). (2 marks) [2011]

6 AOS 1. Dispute Resolution Methods The role of VCAT Dispute resolution methods used by courts and VCAT, including mediation, conciliation, arbitration and judicial determination Strengths and weaknesses of. 1. dispute resolution methods used by courts and VCAT (compare and evaluate) and 2. the way courts and VCAT operate to resolve disputes (compare and evaluate)

7 The role of VCAT VCAT aims to increase access to the legal system by resolving civil disputes in a lowcost, informal and efficient [timely] manner. For example, it is cost effective because fees are low and legal representation is not essential and informal because parties are not bound by strict rules of evidence and procedure as used in courts and the environment is less intimidating than the courts.

8 The role of VCAT VCAT can resolve a wide range of civil disputes. It consists of four divisions, the: - Civil, - Administrative - Human Rights and - Residential Tenancies divisions which specialise in resolving particular matters. It mainly hears minor disputes but can hear matters involving amounts above $

9 The role of VCAT VCAT resolves disputes in three main ways: 1. At mediations 2. At compulsory conferences (which generally use conciliation although any agreement reached is made legally binding by the member) and 3. At hearings (which generally use judicial determination although less formal than crt).

10 Dispute resolution methods used by courts and VCAT Mediation and Conciliation are used at both VCAT & the Crts. For example: VCAT prefers disputes to be resolved a mediations and also uses compulsory conferences which basically use conciliation although member make a legally binding order. Courts - the County & Sup Crts strongly encourage & often require parties to a civil dispute to undertake med n or concil n prior to trial to encourage early settlement. Nine Magistrates Courts resolve disputes under $ at mediation (pilot program extended in 2014)

11 Dispute resolution methods used by courts and VCAT Arbitration where an impartial 3 rd party usually with specialised subject experience, listens to the parties evidence and may assist the parties to resolve the dispute between them but if this is not appropriate or fails will make a legally binding decision. Arbitration is governed by rules of procedure however these are not as strict as those used in court (via judicial determination). VCAT Arbitration is generally not used at VCAT. Courts Arbitration is used in the Mag Crt for civil disputes under $ and it is also used in the Supreme Crt.

12 Dispute resolution methods used by courts and VCAT Judicial determination where parties present their case to an independent & impartial judicial officer (i.e. judge, mag or VCAT member) who listens to the evidence (which is presented in accordance with strict rules of evidence and procedure) and makes a legally binding decision. VCAT offers hearings which basically use judicial determination although less formal Courts - All civil & crim trials at County & Sup Crt (or Mag Crt hearings) use judicial determination.

13 strengths and weaknesses of dispute resolution methods used by courts and VCAT Remember: Quick, S I C quick, satisfaction, Informal cheaper

14 Past exam questions Methods of dispute settlement Explain the dispute resolution method that will be used by the Supreme Court (Trial Division). (3 marks) [2014] (Judicial determination) Describe two dispute resolution methods that are used by courts. (4 marks) [2013] Evaluate mediation as a dispute resolution method. (5 marks) [2012] Compare mediation and arbitration as methods of dispute resolution. (6 marks) [2010]

15 Possible exam question Compare the way courts and VCAT operate to resolve disputes. In your answer describe one dispute resolution method used by VCAT and/or the courts. (8 marks) [2011] KEY TASK WORD!!! Compare (or contrast) means to explain and/or discuss the similarities and differences. [2013 assessor s report]

16 Compare the way courts and VCAT operate to resolve. One key similarity between the way VCAT and the courts operate to resolve disputes is that they both use a variety of dispute resolution methods. For example, while VCAT prefers to resolve civil disputes using mediation and conciliation (which is basically used at Compulsory Conferences), if these methods are inappropriate or fail VCAT also offers legally binding Hearings which largely use judicial determination (albeit without the use of strict rules of e & p as exist in crt). Likewise, while the courts are most commonly associated with using judicial determination to resolve dispute, they also encourage parties to resolve civil disputes using alternative methods including mediation and arbitration.

17 Another similarity between VCAT and the courts is that they both provide experienced and independent third parties/personnel to assist with the resolution of disputes. For example, VCAT provides experienced mediators and conciliators to assist parties and an experienced member presides over hearings while court hearings and trials are presided over by impartial and expert magistrates and judges) although, with the exception of the vice presidents and president, VCAT members are usually non-judicial (whereas courts judges obviously are). Whilst there are similarities b/n.there are also significant differences.quick, S I C

18 Possible exam questions Other possible compare questions Compare the relative purposes of the criminal and civil pre-trial procedures Compare the role of the jury in a criminal and civil trial. Compare one major feature of the adversary system of trial with one feature of the inquisitorial system. [Part of a 6 mark Qn 2007]

19 Compare the relative purposes of the criminal and civil pre-trial procedures One similarity between civil and criminal pre-trial procedures is that to a certain extent they both aim to save time and costs associated with the trial. For example, committal hearings aim to save time and expense associated with trialling a case the has little chance of success by acting as a filtering process test the strength of the prosecution s case., while the pleadings and discovery stages aim to save time at a civil trial by allowing both parties the opportunity to exchange all relevant details and facts. so each is aware of the arguments against them and can consider the merits of their case prompt early settlement. continue with explanation/more sim & diff

20 Compare the role of the jury in a criminal and civil trial. One similarity between the role of the jury in a crim and civil trial (when present) is that in both trials the jury is required to listen to the evidence presented before the court and decide the facts of the case, and apply the relevant law as explained by the judge to determine the verdict - that is, the guilt of the accused in crim trial (beyond reasonabl doubt) or the party most likely (on the balance of probabilities) at fault in a civil trial. Then explain differences.

21 Possible exam questions Link the methods of dispute settlement OR the way VCAT and Courts resolve disputes to the elements of an effective legal system (AOS2) The elements of an effective legal system are FAT: entitlement to a Fair and unbiased hearing, effective Access to the legal system, Timely resolution of disputes

22 Past exam question Average mark % of student got zero - 49% <3 Typical question linking the two areas of study.

23 Approach required: 1. Outline two weaknesses of civil pre-trial procedures - Identify civil pre-trial procedures (e.g. pleading, discovery, directions hearings) and explain two weaknesses e.g. cost; time; complexity

24 Approach required: KEY TASK WORD!!! Discuss means to examine, deliberate and provide strengths and weaknesses (if applicable). You can also provide your opinion and/or a concluding statement.

25 VCAA Sample response: Parties to a civil dispute use pre-trial procedures before having a matter heard before an independent third party such as directions hearings, discovery and the completion of pleadings. Whilst they are useful in preparing the parties for a trial or hearing, these procedures have weaknesses. The first weakness is the cost of completing these procedures. Discovery, in particular, has been seen to be very costly, with the parties reviewing and exchanging thousands of documents that are relevant to the dispute. Often parties have to engage lawyers to complete discovery and other pre-trial procedures, which means that it can be very costly.

26 VCAT can to some extent overcome the costly nature of pre-trial procedures. E.g. In many matters heard by VCAT, the discovery process is not necessary which saves costs and may also mean that parties generally do not need to engage legal reps which also saves costs. VCAT also overcomes the cost issue by having low application fees However, VCAT costs have recently increased. Additionally, VCAT has recently increased the use of some pre-trial procedures, e.g. it does use directions hearings, and there has been an increased use of legal reps, esp in more complex matters which increases costs.

27 Possible exam questions Interesting point: Last years Q12 was the first time an evaluation of civil pre trial procedures had been in an examalthough we had been asked to evaluate Committal hearings 2013 (and link committal hearings to a timely resolution of disputes in 2011). So, an evaluation of pre-trial procedures is necessary in AOS 2!

28 Possible exam questions Committal hearings are complicated and serve no useful purpose. Discuss the extent to which you agree or disagree with this statement. (5 marks) Describe one purpose of a committal hearing and explain how it can promote the timely resolution of a criminal case. (3 marks)

29 AOS 2. Court processes and procedures and engaging in justice The elements of an effective legal system [FAT]: Major features AND strengths and weaknesses of the adversary system of trial (evaluate) Major features of the inquisitorial system of trial (compare to the key features to the advers syst) Possible reforms to the adversary system of trial (suggest and discuss)

30 Common error The jury is not a feature of the adversary system of trial. Major features of the adversary system of trial must be present in all criminal and civil trials! Juries are not used in most civil trials and are NOT a feature of the adversary system.

31 AOS 2. Court processes and procedures and engaging in justice CRIMINAL Vs CIVIL Pre-trial: Bail, remand, Committal Hearing Sanctions Purposes- DR,PP Pleadings, Discovery Directions Hearing Remedies Purpose- restore 3 types Damages/injunctions Prison CCO Fines

32 Common errors Explain the nature of one pre-trial procedure & explain the purpose of one pre-trial procedure.are different questions. - For example One criminal pre-trial procedure is the granting of bail. Bail is [the nature] the release of an accused from custody on a written promise that they will present at their next court appearance.

33 AOS 2. Court processes and procedures and engaging in justice The purpose of bail is to uphold the prevailing right having a presumption of innocence that is, treat an accused as being innocent until proven guilty and to give the accused an opportunity to prepare for their hearing/trial.

34 Possible exam questions Describe and outline the purpose of two civil pre-trial procedures (pleadings and discovery). To what extent do civil pre-trial procedures assist a timely resolution of disputes. Injunctions Bail and remand define, explain purpose.

35 AOS 2. Court processes and procedures and engaging in justice The role of juries, and factors that influence their composition [2 marks 2014] Strengths and weaknesses of the jury system (critically evaluate the effectiveness of juries) [2015?? 4-5 marks] Reforms and alternatives to the jury system (suggest and discuss) [5 marks 2013 Discuss reforms]

36 Past exam question Discuss two possible reforms to the jury system. [Q9, 2013] Students needed to examine how the reform would improve the jury system and problems associated with each reform. A reform (in this case to the jury system) is a change that can be made to the existing (jury) system to enhance or improve its effectiveness The word possible meant provide reforms that had not been implemented yet rather than recent changes.

37 Possible exam question Evaluate the jury system (4-6 marks??) The jury system is outdated and should be abolished. Discuss the extent to which you agree or disagree with this statement. (part of a 10 mrk Qn) [2011] Tip: You must address the statement!

38 KEY TASK WORD!!! with an overall conclusion or judgment about the value or worth of what is being evaluated [2013 Assessors Report] Examiner s advice: When asked to evaluate students should weigh up the strengths and weaknesses. For example, one strength of a feature (e.g. mediation or the jury) may outweigh any other strength or weakness, therefore making it an effective feature/method/system. Likewise, the weaknesses may be so trivial that the overall feature is a fundamental part of our legal system.

39 Another tip: An evaluate question may specify which strengths need to be examined. For example: A former defendant stated, Two features of the jury system are being judged by your peers and having a cross-section of the community on the panel. Evaluate these two features of the jury system VCAA Q A similar question appeared in relation to the strengths of judges making law via precedent.

40 AOS 2. Court processes and procedures and engaging in justice Problems and difficulties faced by individuals in using the legal system Recent changes and recommendations for change in the legal system designed to enhance its effective operation. [Evaluate recent changes]

41 AOS 2. Recent changes and recommendations for change Most texts are quite out-of date now Recent reforms The abolition of suspended sentences [2014] New baseline sentencing laws [2014] New parole laws [2013] New mandatory minimum sentences for gross violence and One punch laws in Victoria [2014] VCAT restructure [2013-4]

42 AOS 2. Recent changes and recommendations for change Recommendations Abolish committal hearings Jurors to give input on sentencing Increase legal aid Increase use of new technology to assist in lodging claims and documents. Increase the use of mediation and other ADR including collaborative law (where parties and their legal reps discuss & resolve their civil disputes rather than going to court)

43 AOS 2. Recent changes and recommendations for change Recommendations Increase training for jurors re: appropriate use of new technology Decrease peremptory challenges

44 Final advice - Common error - Answer the question being asked! NOT what you expect to be asked! NOT all you know on the topic! NOT what you have rote learned or pre-prepared! (such responses rarely fully address the question)

45 Final advice Time management Plan your time! Many students write lengthy responses for questions that only require short answers (e.g. worth 2-3 marks), and do not leave enough time for extended response questions (e.g marks) A short question (1 or 2 marks) requires no more than one or two sentences in response.

46 Final advice Extra space If you use the extra additional space at the end of the booklet, you must indicate you have done so. For example, write... - Continued at end AND clearly number the extra response.

47 Final advice Do not write in tiny writing up the side of the page or squash responses in the margin. Do NOT use abbreviations unless they are very commonly accepted (e.g. VCAT) and you write them in full first. YOU ARE WRITING AN EXAMINATION NOT A TEXT MESSAGE!

48 For example: - MPs make law on behalf of Write members of parliament. - One strength of parlt is that it is a rep body. Write parliament and representative. - VCAT. Write Victorian Civil and Administrative Tribunal (VCAT) when you first mention the tribunal and then you may refer to it as VCAT.

49 Final advice Use a good black or blue liquid gel pen (They are quicker and less stressful on your hand) DO NOT USE A PENCIL Even BALL POINT PEN s are slow!

50 Final advice Paragraphs should be used for longer questions where more than one point/reason/reform is given [Assessor s report 2013/14]

51 Final advice Make use of and become familiar with legal terminology. [Assessor s report 2013]

52 Interesting exam statistics In 2014 approx 8513 students sat the final VCE Legal Studies exam. 737 or 9% achieved a A+ (i.e. 122/140 or higher) 872 or 10% achieved an A (i.e. 112/120 or higher) The exam mean was 80/140 or C+ (4 643 students) According to VCCA, an average performance in a subject (i.e. study) will achieve a study score of 30, study scores between are above average - study scores over 40 are exceptional.

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