Problems and difficulties faced by individuals in using the legal system

Some individuals may face difficulties when trying to use the legal system due to their financial status, social or cultural differences, as well as structures and systems within the legal system Many of these problems have been recognised by the justice department of the Victorian Government which in response formulated in the Justice Statement in 2004 followed by the Justice Statement 2 in 2008 You need to be able to discuss a number of problems and difficulties faced by individuals in using the legal system, as well as some actual changes and recommendations for further change needed to overcome these problems and enhance the effective operation of the legal system.

Problems: High cost of legal proceedings Problem of lack of access due to financial difficulties It can be expensive to pursue a legal case, and this may discourage or prevent some parties from pursuing a valid civil claim through the courts. This is particularly pertinent for those who cannot solve their dispute through ADR methods (for example criminal cases or serious civil cases).Victorian Legal Aide is available but is limited to means testing Costs include court fees (range from $150-$10,000), civil juries and legal representation If a party chooses to have a civil jury then they bear those costs also – in County Court jury is $560 a day for first day, $408 per day for days 2-6 and $810 a day from day 7 onwards The other main source of cost is legal representation – both solicitors and barristers if needed. There have been cases where plaintiff’s costs of pursuing case are almost as much s the damages awarded

Victorian Legal Aid Victorian Legal Aid offers government funded legal assistance, advice and representation, however its resources are limited. Applicants must pass means test 9to assess their ability to pay for their own legal advice/representation) and merit and reasonableness test (the likelihood of their case being successful) There are maximums placed on legal aid funding also eg $12000 for adults, $18000 for child representatives in Family Court, $40 000 for criminal trials.

Changes to enhance legal system’s effective operation – financial difficulties Justice Connect 2013– works with law firms to offer pro-bono advice and representation for financially challenged parties. Allows financial access to parties Court Annexed mediation in the Magistrate’s Court - all defended civil disputes in selected Magistrate’s Courts (eg Sunshine and Werribee) where amount claimed is under $10,000 are required to undertake mediation – this has a settlement rate of 86 % Increase in court Conducted ADR – The Victorian Government made a commitment in the Justice Statement 2 (2008) to provide $3.7 million for judge let mediation in the County and Supreme Courts ADR coordinators have been employed in both courts to facilitate the increased use of ADR, and there have been pilots (trials) of court-conducted ADR in each jurisdiction

Discuss how individuals may have difficulty accessing the legal system due to high cost of legal proceedings. In your answer suggest one reccomendation for change, and one actual change, that can make the legal system more effective

There are a multitude of reasons as to why individuals may face difficutly accessing the legal system due to cost of legal proceedings. It can be expensive to pursue a legal case, and this may discourage or prevent some parties from pursuing a valid civil claim through the courts

Suggested changes to overcome lack of access due to financial difficulties Abolish Committal Hearings – Victoria’s former director of public prosecutions (DPP) Jeremy Rapke QC has called for committal hearings to be abolished saying they are “inefficient, costly and time-wasting” Victorian Ombudsman George Brouwer has called for accused people to be presented directly for trial This would reduce expense of engaging legal representation for the committal hearing process E-Discovery – online discovery for civil cases that have a large amount of documents to be shared. This saves the cost of lawyers having to meet continuously to exchange evidence/documents Online Legal Advice – although there is increased use of the internet to provide legal information such as through Legal Online, there remain a limited amount of law firms that will provide advice online. In the United States this medium for providing advice is becoming popular, as it is easy, cheap and time efficient Aimed at increasing access

Problem of Delays - fail to uphold a timely resolution of disputes An effective legal system must aim to resolve disputes within a reasonable time frame because excessive delays can increase the cost of legal proceedings and impose hardship on parties and witnesses, for example, financial hardship while awaiting compensation or an accused suffering whilst being held on remand. Improving court processes and procedures and increasing resources may reduce delays in the legal system. Cause of delays are: -collecting evidence Pre-trial procedures (civil and criminal) Backlog of cases clogging legal system – as of 2009 35,000 criminal cases pending in Magistrates’ Court Impact of delays for civil: stress, financial hardship, loss of memory of witnesses Impact of delays for criminal: stigma, stress, disruption to family and work, possibility of being held in remand Impact of delays for society: dangerous criminal may be on bail whilst awaiting trial

Causes of delays Criminal cases Civil cases: Reluctance in reporting a crime Delays in gathering evidence Criminal pre-trial procedures – eg Committal Hearings Criminal trial procedures – strict rules of evidence and procedure Lack of resources – eg Legal Aid Civil cases: Complex civil pre-trial procedures – including pleadings and discovery (discovery may take months or years as parties may exchange thousands of documents ) Nature of civil claims – eg negligence claims may have to wait to see full extent of damage caused Lack of resources – eg Legal Aid, Judicial appointments

Recent changes to overcome delays and achieve a timely resolution of disputes Court Annexed mediation in the Magistrate’s Court all defended civil disputes in selected Magistrate’s Courts (eg Sunshine and Werribee) where amount claimed is under $10,000 are required to undertake mediation – this has a settlement rate of 86 % Introduction of the sentence indication scheme – In 2010 the sentence indication scheme was permanently introduced to allow judges in criminal cases to indicate to defendants the likely sentence they would receive if convicted in an attempt to encourage defendants to enter an early guilty plea and in turn receive a sentencing discount or reduction in their sentence. The scheme aims to reduce the number of cases going to trial and allows other cases to proceed more quickly.

Suggested changes to overcome delays and achieve a timely resolution of disputes Extend court hours – Former Victorian Attorney-General Rob Hulls has suggested that the curt hours of the Magistrates’ Court could be extended to reduce delays and improve access to justice Extended sessions could include night courts, breakfast courts, afternoon and weekend courts Could have two sittings – 8am-4pm and 2pm-8pm pus Saturday morning sitting times Abolish committal hearings – an argument can be made to support the abolition of committal hearings. Abolishing committal hearings and sending an accused directly to trial would decrease the time it takes for criminal cases to proceed to trial and reduce the workload of the Magistrates' Court and legal counsel who prepare for such hearings. Committal hearings allow for full disclosure of the prosecution's case, however, which may prompt an early guilty plea and help ensure the prosecution has sufficient evidence against an accused to proceed to trial.

Problems with the legal system: indigenous Australians have limited access Aboriginal people are often disadvantaged in their dealings with the legal system. A number of issues including language and communication difficulties/barriers and cultural differences contributes to this problem, for example, their tendency for gratuitous concurrence (agreeing with an authority figure). A further issues is that customary Aboriginal laws and methods for resolving disputes often conflict with Western criminal justice system This has led to disproportionate representation of Aboriginal people in the criminal justice system – in 2005 a report revealed Aboriginal people are 11 times more likely to be imprisoned that other Australians and indigenous juveniles are 20 times more likely to be imprisoned

Possible changes to legal system to make it more effective for Indigenous Australians Increase the availability of specialised indigenous liaison officers, translators and interpreters throughout all stages of the legal process to assist indigenous offenders and their families. The state government could offer incentive schemes to indigenous Australians and educational institutions to encourage indigenous Australians to pursue legal careers and promote diversity in the recruitment of legal personnel (including police and court officials)

Case example

Recent Changes Koori County Court – success of Koori Court divisions of magistrates; and Children’s Courts saw the extension of the Koori Court divisions in the County Court in 2009. It is a sentencing court with informal proceedings which helps accused understand the case as Koori elder or respected person from their community is present to allow access for the Indigenous Community in the sentencing process. This division of the County Court sits in the La Trobe Valley law courts in Morwell Objective of change was to ensure greater participation of Aboriginal community in the sentencing process through the role played in that process by the Koori elder or respected person However, court is restricted to those pleading guilty to an offence within the County Court’s jurisdiction (other than sexual offences or family violence offences which are not heard in the Koori Court).

Exam questions 1.) “Describe one element of an effective legal system and explain two systems or procedures that exist within our legal system to help achieve it.” 6 marks 2.) “Explain one recent change in the law designed to achieve a fair and unbiased hearing.” 4 marks 3.) “There are some individuals in the community who face difficulties accessing the legal system. a.) Describe one such type of individual and explain why they have problems accessing the legal system. b.) with the use of examples, discuss one recent change, and one proposed change in the operation of the legal system, that could assist your chosen individual to access the legal system. 4 + 4 = 8 marks 4.) “Our legal system has financial and structural restraints and there are social, cultural and economic differences within our community. As a result of these restraints and differences there will be problems in our legal system. a.) identify two of these problems and explain how they limit the effective operation of the legal system b.) Comment on two changes, or recommendations for change, which have been made, or could be made, to improve the effective operation of the legal system 4 = 4 = 8 marks

) “There are some individuals in the community who face difficulties accessing the legal system. a.) Describe one such type of individual and explain why they have problems accessing the legal system. b.) with the use of examples, discuss one recent change, and one proposed change in the operation of the legal system, that could assist your chosen individual to access the legal system. One individual or group of individuals that may have difficulty accessing the legal system are Indigenous Australians. There are a multitude of reasons as to why this group faces such difficulties. One reason is due to language and cultural barriers. In some instances, it may be seen as inappropriate or “taboo” to discuss certain matters, like sexual matters, as seen in the Kina case. This may lead to Indigenous Australians incriminating themselves or not answering questions or looking at an interviewer in the eye. They may also submit to gratuitous concurrence. Furthermore, as Indigenous punitive measures conflict with Western punishment measures, this can also lead to a lack of understanding of our legal system.

One proposed change to aid Indigenous Australians accessing the legal system is to implement government funding for interpreters and translators that could aid Aboriginal individuals caught up in the legal system. They could work with the Indigenous people to ensure they are understood and that they can express themselves in a way that is relevant to them. An actual change that would help indigenous Australians access the legal system is the creation of the Koori Court – County Court division in 2009. This sentencing court allows an Aborignal elder or respected person to sit at the hearing to ensure cultural issues are taken into account, and that the sentence is culturally relevant. This provides access through understanding.

Your task Choose ONE problem that individuals face in the community in regards to access to the legal system Create a visual representation of this issue Include: A description of the problem faced Actual changes to the legal system to help overcome this problem Suggested recommendations to overcome this problem You will need to present this to the class

“There are some individuals in the community who face difficulties accessing the legal system. a.) Describe one such type of individual and explain why they have problems accessing the legal system.