INTRODUCTION TO UNIT 4
ESSENTIAL KNOWLEDGE
The focus of Unit 4 is on the way in which criminal cases and civil disputes are resolved
through the Victorian legal system. Consideration is given to the dispute resolution
bodies, and the processes and procedures that operate within them. You are also expected
to evaluate the effectiveness of these processes and procedures.
QUESTION 1
The distinction between criminal and civil law:
There are basically two types of disputes within our legal system:
1.
_______________________________________ and
2.
_______________________________________
It is important that you know the difference between them.
Make sure you make note of: Definitions, Key words, Comparisons.
CRIMINAL DISPUTES
Are concerned with the suppression of behaviour that disturbs the peace and well being of
the community. A crime is an offence against the community that is prosecuted and
punished by the State. Such offences are usually associated with conduct that is of an antisocial nature. The protection of the public is the paramount justification for prohibiting such
activity.
Criminal cases concern breaches of the criminal law, from jaywalking, careless driving,
stalking to assault, burglary, murder and treason. The government prosecutes the
offender for allegedly breaking the law.
QUESTION 2
List three other examples of criminal disputes:
1.
________________________________
2.
________________________________
3.
________________________________
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CIVIL DISPUTES
Civil matters involve disputes between people or between individuals and the
government where the issue boils down to property, money, compensation or permission to
do something. Disagreements over contracts, employment, custody, maintenance,
adoption, negligence, defective products, motor vehicle accidents, defamation, the
environment and breach of copyright are all examples of civil disputes.
Generally any legal dispute that does not involve a crime would be classified under civil law.
QUESTION 3
List three other examples of civil disputes:
1.
_______________________________
2.
_______________________________
3.
_______________________________
Note: Many disputes involve both criminal and civil law, for example, assault can be a
civil wrong, for which you can sue for damages, and a criminal offence which the police may
decide to prosecute, seeking the imposition of a fine or jail sentence for the offender. This
also applies to public nuisance, some trespass, negligence and car accidents causing injury.
When Harry met Sally in a car accident, Harry was drunk and had been speeding. Sally
suffered serious injury.
1.
The police charged Harry with dangerous driving. In R v. Harry, the state prosecuted
Harry. He was found guilty. The court disqualified him from driving and also fined him.
2.
Sally took Harry to court on the grounds of negligence. In Sally v. Harry, Sally sued
Harry. He was found liable. The court ordered him to pay damages.
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THE DISTINCTION/COMPARISONS BETWEEN
CRIMINAL AND CIVIL LAW
CRIMINAL
CIVIL
Involves offences against the state, for example,
theft, assault, tax avoidance, murder, etc.
Involves wrongs against individuals – rights have
been infringed. For Example: Torts.
Action is normally initiated by the police via
investigation and collection of evidence,
interrogation of suspects and formally charging the
accused. (Private prosecutions by the victim are
possible but are uncommon).
The prosecution takes the accused to court and
prosecutes, For Example: R v Smith.
Action is initiated by the person who has suffered an
alleged wrong - the plaintiff (called a complainant in
the Magistrates' court) by issuing a legal document
called a Writ of Summons which is delivered to the
defendant. The defendant must respond by entering an
Appearance. The plaintiff/complainant and defendant
are the civil litigants. For example, Donoghue v.
Stevenson.
A preliminary hearing (or committal hearing) is held
in order to decide whether there is a case to answer for
a serious matter to go to trial (called indictable
offences).
No preliminary hearing. Before a trial, a number of
legal documents are exchanged, such as, Statement
of Claim and Statement of Defence, Exchange of
Documents and Interrogatories.
The parties can be required to attend a directions
hearing** prior to commencement of trial.
**The first Court hearing when the Judge/Magistrates
will decide on the timetable for the case, perhaps order
that a welfare report is carried out.
Parties are usually required to attend a pre-trial
conference or directions hearing.
A criminal trial aims to:
A civil trial aims to:
1. Establish the guilt or innocence of the accused.
2. To punish the wrong doer.
3. To deter, reform, rehabilitate.
1. To decide whether or not the defendant is liable for
the loss or injury by the plaintiff.
2. Compensate the injured party.
3. To enforce rights.
Standard of proof:
Standard of proof:
The "standard of proof" is a legal concept. It is the level
of proof that must be met by the person who has the
onus.
Liability must be established ‘On the balance of
probabilities.’ this means that once both sides have
presented their evidence the Judge will find for the party
who, on the whole, has a stronger case
Guilt must be established ‘beyond reasonable doubt.’
Degree of proof required. In criminal cases, prosecutors
must prove a defendant's guilt "beyond a reasonable
doubt. This is proof that leaves you with an abiding
conviction that the charge is true.
Burden of proof normally rests with the Prosecution
(the burden of proof can shift to the defendant, for
example. if self defence or insanity is being used as a
defence).
Burden of proof normally rests with the plaintiff (the
burden can shift to the defendant for example, if
contributory negligence is being claimed).
There will be a jury of 12. A jury is only used for
indictable offences heard in the County or Supreme
Courts and only if the accused pleads, not guilty (up to
15 in lengthy cases).
A jury of 6 will be used, only if requested, and only in
the County or Supreme Courts (up to 8 in lengthy
cases).
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A jury must come to a unanimous verdict in murder
trials and cases involving Commonwealth Law. In other
cases an 11-1 majority is sufficient in Victoria. If no
verdict, then hung jury.
A 5/6 majority is sufficient if a unanimous verdict
cannot be achieved.
Possible decisions:
Possible decisions:
1. Guilty.
2. Not guilty.
3. A 'no-decision' could occur in a jury trial. Where there
is a 'hung jury', a re-trial will take place using a new
jury.
1. Find for the plaintiff, that is, defendant liable.
2. Find for the defendant – counter claim.
3. A 'hung jury' is possible but very rare – occurs judge
will direct parties to negotiate.
Possible outcomes:
Possible outcomes:
If guilty pass sentence and determine sanction such
as:
If liable determine the remedy or remedies:
Damages, Injunction and Specific Performance.
Imprisonment, Youth Training Centre, fine,
adjournment, community based order, etc.
EXAMPLE 1 (2008 VCAA Exam, Question 7a)
James and his friends were celebrating James’ 35th birthday at a local restaurant. At the end
of the night, James decided that he may have had too much to drink and called a taxi. On
the way out, James tripped on some worn carpet and fell to the floor, causing him a serious
injury. After consulting his lawyer, James decides to sue the restaurant for compensation.
Identify which party has the burden of proof in this case.
(1 mark)
Assessor’s Comments:
Some students did not know that the plaintiff, or the person making the complaint (James in
this scenario), is the one who carries the burden of proof. Some students used the language
of criminal procedure and said that the prosecution has the burden of proof, which is not true
in a civil matter.
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QUESTION 4
Explain the major differences between criminal disputes and civil disputes under these
headings:
Type of conduct being dealt with:
CRIMINAL
CIVIL
_______________________________
_______________________________
_______________________________
_______________________________
Title of parties who initiate the dispute:
CRIMINAL
CIVIL
_______________________________
_______________________________
_______________________________
_______________________________
Title of parties who lead the trial:
CRIMINAL
CIVIL
_______________________________
_______________________________
_______________________________
_______________________________
Pre-trial procedures:
CRIMINAL
_______________________________
CIVIL
_______________________________
Standard of proof:
CRIMINAL
_______________________________
CIVIL
_______________________________
Use of jury:
CRIMINAL
_______________________________
CIVIL
_______________________________
Trial decision:
CRIMINAL
_______________________________
CIVIL
_______________________________
Outcomes:
CRIMINAL
_______________________________
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CIVIL
_______________________________
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You must be able to explain what is meant by each of these elements:
1.
Entitlement to a Fair and Unbiased Hearing or Trial.
An element of an effective legal system is the entitlement to a fair and unbiased
hearing or trial. This means that the parties would have the right to equal treatment in
relation to the presentation of evidence and the opportunities to present their case
before an impartial arbitrator. For this element to be satisfied parties would be entitled
to equal treatment during police investigations and consistency in sentencing in
criminal matters. The judiciary must be seen as being totally independent, judging
cases on the present circumstances only and not being influenced by irrelevant factors.
2.
Access to Mechanisms for the Resolution of Disputes.
Another element necessary for the legal system to operate effectively is access to
mechanisms for the resolution of disputes. The legal system cannot merely set out
rights and obligations; it must also provide ways in which disputes can be settled. The
legal system attempts to do this by providing cheaper alternatives to court action in
mediation or tribunals, a system of appeals and pre-trial procedures such as committals
that ensure that only those with sufficient evidence against them go to court in serious
criminal matters.
3.
Timely Resolution of Disputes.
If the legal system is to be effective it must provide the timely resolution of disputes
as ‘justice delayed is justice denied.’ Accordingly, unacceptable delays in bringing
cases to trial, thereby denying a just resolution, must be reduced or eliminated. The
introduction of tribunals and alternative forms of dispute resolution have assisted in
reducing delays by enabling parties to resolve their disputes without using the
traditional court system which is time consuming.
QUESTION 5
For each of the above elements explain three additional ways in which the legal
system strives to be effective.
1.
Three ways in which the legal system strives to a fair and unbiased trial or hearing:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
2.
Three ways in which the legal system provides access to mechanisms for resolving
disputes:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
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3.
Three ways in which the legal system strives to provide for timely resolution of
disputes:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
UNIT 4 — DISPUTE RESOLUTION METHODS
AREA OF STUDY 1
DOT POINT 1
REASONS FOR THE EXISTENCE OF A HIERARCHY OF COURTS
As society has become more complex, there is an increasing need to provide efficient
dispute resolution processes, with specialists employed to handle particular cases. The court
hierarchy caters for such needs.
PROVIDES FOR A SYSTEM OF APPEALS
One of the key elements for assessing the effectiveness of the legal system involves the
provision of accessible appeals processes. For example, there is a right of appeal from the
County and Supreme Courts to the Court of Appeal on all matters except a jury finding of not
guilty in a criminal case. The grounds for such appeals are many, with the most common
involving claims that the remedy or punishment imposed did not reflect the nature of the
evidence presented in the trial. Unless individuals have access to appeal processes
there may arise a higher incidence of injustice, where dissatisfied parties have no
recourse to high authority as a result of an unreasonable decision in a lower court.
Also appeal cases are essential in order to rectify erroneous decisions in lower courts
and to allow for the ongoing development of the common law.
Appeal courts provide written judgements or reasons for their decisions and so this
promotes coherency with the legal system.
By ensuring binding precedent is followed the appeals system promotes consistency and
fairness.
However, appeals are costly and this may deny access to ordinary litigants.
DOCTRINE OF PRECEDENT
One reason for the existence of a court hierarchy is the application of the doctrine of
Precedent, meaning that lower courts must follow decisions made by higher courts in the
same hierarchy. This is known as the principle of ‘stare decisis’ which binds lower courts,
therefore the courts must be organised in a hierarchy of importance. For example, a decision
of the Higher Court is binding on all State courts throughout the country.
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SPECIALISATION
With courts assigned particular cases, specialist personnel can be employed to deal with
the legal and factual issues which arise.
Examples:

Family Law Court

Magistrates’ Court

Children’s Court
ADMINISTRATIVE CONVENIENCE
Granting of specific jurisdictions to each court enables the more experienced personnel
(including judges and barristers) to be utilised by the superior courts.
Relatively minor matters, such as, traffic offences can be dealt with quickly and
inexpensively by the Magistrates’ Court.
Crimes can be classified according to their severity, as wither summary offences or
indictable offences.
QUESTION 6
Define the following terms:
Summary Offences
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Indictable offences
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Indictable offences heard summarily
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
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DOT POINT 2
THE VICTORIAN HIERARCHY OF COURTS
Magistrates’ Court
Criminal
Civil
Summary offences and
Indictable offences tried
summarily, for example,
property offences under a
value of $25,000. Committal
proceedings – remand or
bail. Issue of warrants.
Minor civil claims up to
$100,000. Work Cover
claims. Matters up to $10,000
referred to compulsory
arbitration.
Koori Magistrates’ Court sentencing of indigenous
defendants who have
pleaded guilty. Provides
relevant justice to indigenous
community.
Drug Court Division offenders who plead guilty to
drug related crime. Emphasis
is on rehabilitation
Family Violence Division –
matters arising from
situations of family violence.
Emphasis on making
offender change their
behavior
Neighbourhood Justice
Centre – multi jurisdictional
court using a restorative
approach.
County Court
County Court Appellate
Jurisdiction
PORTALS – Pre-Trial
Conference Mediation.
Family Law – interim orders
involving relating to custody,
maintenance and
guardianship. Granting
permission for minors to
marry.
Most indictable offences,
for example; rape, serious
drug offences and armed
robbery. Exceptions –
murder, treason and murder
related offences.
Unlimited for personal and
non personal injury claims;
From Magistrates’ Court on
grounds of a question of fact
(conviction) or sentencing
order.
Limited jurisdiction to hear
civil appeals except where
specified by an act, for
example, Work Cover.
 The School For Excellence 2011
**The Court no longer has a
jurisdictional monetary limit**
The Essentials – Legal Studies – Book 2
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Supreme Court of Victoria
(trial division)
Trials for the most serious
indictable offences: Murder
& treason & murder related
crimes, such as, attempted
murder and manslaughter.
Hears claims for unlimited
amounts for non-personal
injury claims over
$200,000. Jury of 6 may be
used if requested by one of
the parties (optional). Hears
appeals in all cases on a
point of law from the
Magistrates’ Court and from
some divisions of VCAT.
Supreme Court of Victoria
(appellate division)
A single judge of the
Supreme Court hears
appeals on criminal matters
from the Magistrates’ Court
but only on points of law.
A single judge of the
Supreme Court hears
appeals on civil matters from
the Magistrates’ Court but
only on points of law. A
single judge can also hear
appeals from VCAT except
when the order is made by
the President or
Vice-President.
Court of Appeal
Hears criminal and civil appeals in all cases from a
single judge of the County and Supreme Courts. All
appeals from VCAT when the tribunal was constituted for the
purpose of making an order by the President or VicePresident. The court usually sits with three judges but can
have five if the matter before it is of ‘significant importance’.
Appeals from the Court of Appeal are heard by the Full Court
of the High Court.
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EXAMPLE 2 (2008 VCAA Exam, Question 2b)
David has just lost his civil action in the County Court. He has had difficulty reading his
judgment, and does not understand why the judge has interpreted a Victorian Act of
Parliament.
David wants to appeal the outcome of his case. In which court would the appeal be heard?
(1 mark)
Solution
Appeal division of the Supreme Court of Victoria (the Court of Appeal).
Assessor’s Comments:
Unfortunately many students are not familiar with the jurisdictions of the courts prescribed in
the study design and were therefore not able to provide the correct answer. ‘Court of Appeal’
was also acceptable. A student received no marks if they gave two courts, for example, ‘The
Supreme Court or the Court of Appeal’.
EXAMPLE 3 (2010 VCAA Exam, question 2a)
Carl has been found guilty of culpable driving and sentenced to 150 hours of community
service.
(a)
In which court is it most likely that this case would have been heard? (1 mark)
Assessors report:
Culpable driving is an indictable offence and is within the jurisdiction of the County Court. It
cannot be heard summarily and therefore cannot be heard by the Magistrates’ Court (which
can hear other driving offences). Some students who may have studied the R v Towle
culpable driving case wrote the Supreme Court (which did hear the culpable driving offence
in that instance). The County Court was the most likely court that would have heard Carl’s
case. By reason of this all three courts were accepted as answers.
EXAMPLE 4 (2007 VCAA Exam, Question 6)
Bruce, aged 18, has been charged with breaking into a house and stealing a plasma
television. He has decided to plead ‘not guilty’ to the charge and have it heard in the
Magistrates. Court. His friend, Danni, tells him that.

Bruce could have this case tried in another court if he wanted to; and.

If Bruce is convicted in the Magistrates’ Court, there is more than one possible appeal
available to him.
Do you agree with Danni’s advice? Give reasons for your answer.
(3 marks – Average 0.8)
Assessor’s Comments:
Many students struggled with this question and many did not seem to have taken the time to
read carefully and understand the instructions. In this question students were given a
scenario and asked if they agreed with the advice that had been given.
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One piece of advice was that the case ‘could be tried in another court’ if the person charged
(Bruce) wanted to. Bruce had decided to have his case heard in the Magistrate’s Court;
however, because he committed a burglary, which is an indictable offence triable summarily
(Schedule 4 of the Magistrates’ Court Act 1989 lists the indictable offences that can be heard
by the Magistrates’ Court), he can choose to have his case heard by a judge and jury in the
County Court.
Therefore the advice Bruce was given is correct, he could have chosen not to have his case
heard in the Magistrates’ Court and instead gone to the County Court. Although Bruce’s age
was given as 18 there is no choice available to have his matter heard in the Children’s Court.
The Children’s Court does not offer any options to juvenile defendants about where their
trials will be heard. If Bruce had been eligible to have his matter heard in the Children’s
Court it would have been heard there, and Bruce would have no choice.
The other piece of advice that Bruce was given was that there ‘is more than one possible
appeal available to him’ if he was convicted in the Magistrates’ Court. This advice was also
correct because from the Magistrates’ Court there are two avenues of appeal – one to the
County Court on conviction or sentence and one to the Supreme Court on a point of law.
In the court system in Australia there are federal courts (those established by the federal
parliament) and a court system in each state. The highest court in Australia is the High Court
that has jurisdiction over all courts as it is the final court of appeal for both federal and state
matters.
VICTORIAN COURTS
These courts have been established by legislation in the State parliament. Each has its own
functions and jurisdictions.
Magistrates’ court. Points to note:

Original jurisdiction only – Appeals heard in a higher court.

A Magistrate decides on guilt or innocence in a criminal case with a fine or
imprisonment or other penalty for guilty. Maximum penalties include prison for 10 years
of fine $120,000.

A Magistrate decides whether a civil wrong has occurred and compensation (monetary
damages) is awarded to those whose rights have been infringed up to a maximum of
$100,000).

This court hears minor criminal matters – Summary offences, such as, traffic offences,
drug possession, offensive behaviour, and indictable offences heard summarily, that is,
less serious offences where the offender agrees to have the case heard before a
Magistrate rather than in the County Court before a judge and jury. These offences
include: House breaking, theft of car, assault, recklessly causing injury – punishable by
prison or fine. Hearing indictable offences summarily has expanded the case load of
Magistrates’ Courts but has lead to a quicker, more efficient process for those involved.
One reason why a guilty party might prefer this method is that the penalties a
Magistrate can impose are less than those a judge can impose in the County Court.
Magistrates conduct committal proceedings – pre-trial proceedings used for indictable
offences to determine if sufficient evidence exists for trial in a higher court.

In civil matters cases for compensation up to $10,000 can be referred to an arbitrator.
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Drug Court. Points to note:

Deals with offenders from Magistrates Court who plead guilty to drug related crimes.

Emphasis is on rehabilitating the offender.

Currently situated at Dandenong Magistrates Court
Koori Court Division:

Provides culturally relevant justice to indigenous Australians.

Koori Elder or respected person in that community works with Magistrate to provide
relevant sentencing of offender.

Proceedings are less formal.

Offender must have plead guilty.
Family Violence Division. Points to note:

Deals with matters arising from situations of family violence involving intervention
orders, criminal proceedings for summary offences, civil proceedings.

Applications for crimes compensation due to family violence.

Emphasis is on making the offender responsible and accountable for their behavior and
try to change that behaviour.
Neighbourhood Justice Centre. Points to note:

Combined jurisdiction of Magistrates, Koori, Children’s, family Violence, Family courts,
some VCAT lists, VOCAT.

Uses a restorative approach.

Addresses underlying causes of behaviour.

Offers access to services such as drug and alcohol rehabilitation, mental health and
financial services, mediators.
Sexual Offences List. Points to note:

Deals with sexual offence charges within Magistrates Court.

Recognises needs of such cases, especially the difficulties faced by victims of such
cases.
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Assessment and Referral Court list. Points to note:

3 year pilot program which commenced in 2010.

Case management of cases involving offenders with mental illness or cognitive
impairment.

Provides case managers and additional health, welfare and support services

Hears cases involving such offenders who have complex needs

Does not involve serious crimes or serious sexual offences

Accused must consent to participate in this list
County Court. Points to note:

It has the jurisdiction to hear most serious criminal offences – rape, armed robbery,
arson, in fact, all indictable offences except murder and treason. A single judge
presides over all criminal cases; there is a jury of 12 when the accused pleads not
guilty. After the evidence is heard the judge sums up the facts to the jury, making them
aware of the relevant law, they then decide if the accused is guilty or not guilty. If guilty,
the judge is then responsible for determining the sentence. For a jury decision it is
hoped a unanimous (all agree) decision is made but a majority decision (one juror
disagreeing) is accepted after 6 hours deliberation. If the defendant pleads guilty, there
is no jury and the judge passes sentence.

The court hears most civil disputes – it can hear unlimited personal injury claims. In civil
cases, a jury of 6 is optional at the request of the parties but often cases are heard by a
single judge without a jury. If a jury is used, a majority verdict of 5 out of 6 jurors is
accepted after 6 hours deliberation.

The County Court has some appellate jurisdiction for criminal cases heard and
resolved in the Magistrates’ Court. The court has no appellate jurisdiction for civil
cases. The only matters it can deal with on appeal are those relating to the facts of the
case or the appropriateness of the sentence – the defendant can claim it was too
severe and the Crown might claim it was too lenient. The defendant can appeal against
the guilty verdict and argue the facts do not prove guilt. When there is an appeal, the
County Court (one judge only) hears the entire case again. The judge at the conclusion
of the case can dismiss the appeal, change the sentence or change the guilty verdict.
Supreme Court – Trial Division. Points to note:

This is the highest court in the Victorian hierarchy and has the final original jurisdiction.
It is divided into a trial court with both original and appellate jurisdiction and a Court of
Appeal. In the trial division there is a single judge and in the Court of Appeal there are
7 justices and appeals are heard before 3 or 5 justices depending on the severity of the
case being heard.

The Supreme Court in its original jurisdiction hears the most serious indictable offences
– murder, attempted murder, manslaughter and treason. The use of juries in the
Supreme Court is similar to that in the County Court and the judge has similar
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responsibilities with regard to a decision in a case (where no jury is involved) and with
regard to sentencing in criminal case and determining the amount of compensation in a
civil case if it is proven.
Supreme Court – Appellate Jurisdiction. Points to note:

As the most senior court in Victoria, the Supreme Court has important appellate
jurisdiction.

A single Supreme Court judge can hear appeals from the Magistrates’ Court in both
criminal and civil cases. In criminal cases and civil cases, appeals on questions of law
(for example, application of precedent to facts of the case and interpretation of statutes)
are heard in this way.
Court of Appeal. Points to note:

This is the final court of appeal in the jurisdiction of Victoria. It consists of 9 judges or
justices of appeal including a Chief Justice of the Supreme Court. They in numbers of
3 or 5 (usually 3), hear important appeals against decisions made on criminal or civil
matters in the County Court and Supreme Court (trial division where a single judge
operates. Appeals are heard on questions of law, on matters of fact and sentences or
remedies.

The court also hears appeals about orders issued by the President of Vice President of
VCAT (appeals against orders issued by other members of VCAT are heard by a single
Supreme Court judge).

The Court of Appeal can dismiss the appeal, overturn the decision of the previous
judge or change the penalty or amount of compensation. It is also possible for the court
to order a new trial.
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