1. Evaluating the effectiveness of the legal system

2. Why is this important?
An effective legal system must ensure all individuals, regardless of their ethnicity, wealth, gender or religion, are able to access the court system, and receive a fair and unbiased hearing. It must also resolve disputes in a timely manner. While our legal system has many processes and procedures in place to ensure its effective operation, it is not perfect and sometimes the scales of justice may not be evenly balanced. For example, people on very low incomes, indigenous Australians and those with mental health issues may experience difficulties using the legal system and be disadvantaged in legal proceedings. It is therefore essential that we constantly evaluate our legal system and implement reforms to improve its effectiveness.

3. Key knowledge

4. INDIGENOUS MAN TASERED 13 TIMES WHILE IN CUSTODY

5. In October 2008, Kevin Spratt, an indigenous Australian, was Tasered (given a temporary electric shock) by Western Australian police 41 times within one week while being detained in custody. Mr Spratt was charged with and pleaded guilty to obstructing the police. In 2010, however, Spratt's conviction was quashed after it was established that Mr Spratt did not remember the incident where he had supposedly obstructed police (even though he pleaded guilty to it). This memory loss may have been due to being repeatedly Tasered. There had been a miscarriage of justice and the two police officers involved were subsequently subjected to police disciplinary hearings and fined $1950 for using undue and unnecessary force. The Chief Executive Officer of the Aboriginal Legal Service of Western Australia, Mr Dennis Eggington, in 2011 highlighted findings from a Corruption and Crime Commission inquiry saying that Aboriginal people were far more likely to be the victims of police Tasering than other members of the community. Other recent statistics indicate indigenous Australians were three times more likely to be imprisoned for a minor offence and 14 times more likely to be imprisoned compared to non-indigenous people. Indigenous women were 23 times more likely to be imprisoned than non-indigenous women and indigenous young people were significantly overrepresented in the juvenile criminal justice system. These statistics highlight inequities between the way indigenous people are treated by the legal system compared to non-indigenous people.

6. Elements of an effective legal system
There are three elements used when assessing whether the operation of the legal system is effective or not. For a system or process to be effective it must satisfy all three of F A T

7. Entitlement to a fair and unbiased hearing Effective access to the legal system Timely resolution of disputes

8. Entitlement to a fair and unbiased hearing
Nemo debet esse judex in propria causa
Audi alteram partem
Examples of how it is achieved/reflected in the legal system:
Burden of proof being placed on party bringing the case
The rules of evidence and procedure apply equally to both parties
Rules of evidence ensure only reliable evidence used
Impartial, independent judge used to decide points of law (nemo debet esse judex in propria causa)
Committal hearings (criminal cases) allow accused to learn case against them, allows early guilty plea
Bail upholds presumption of innocence
Civil pre-trial procedures make parties aware of the case against them through exchange of documents so that they are on an equal footing

9. Effective access to the legal system
To operate effectively, a legal system must provide ways in which disputes in the community can be resolved – provisions of avenues of dispute resolution so that parties don’t have to go outside of the law. Parties need to be able to access these legal bodies, and not be prevented from doing so due to funds or lack of knowledge/education
Examples of how it is achieved/reflected in the legal system:
Courts, including specialist courts (Koori and Drug Courts) and specialised lists such as Sex Offences list
Tribunals such as VCAT for the resolution of particular, specialised types of civil disputes including mediation/arbitration
Legal Aid may be available to parties who are umable to afford legal representation
A system of appeals so that a party who feels they have had an unfair trial can endeavor to have their case heard by a more superior court and have injustices rectified
Interpreters provided for people with language difficulties

10. Timely resolution of disputes
“Justice delayed is justice denied”. To operate effectively the legal system must resolve disputes in a relatively timely manner. If the law resolves disputes too slowly then it may detract from social cohesion and the community may lose confidence in the legal system. However they must not resolve disputes so quickly so as not to allow adequate time to consider both sides of the argument (audi alteram partem)
Examples of how it is achieved/reflected in the legal system:
Committal hearings (particularly using hand up brief method) prevent weak cases from proceeding to trial, thereby saving time if no prima- facie case exists
Directions hearings identify and resolve some issues before trial and set some time limits for further stages
Time limits placed on both civil and criminal pre-trial procedures
ADR methods are aimed at parties to a civil dispute resolving the dispute themselves with help of an independent third party – resolve disputes in a timely manner

11. 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.

12. 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
Costs include court fees (range from $150-$10,000)
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

13. 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, $ for criminal trials.

14. Changes to enhance its effective operation – financial difficulties
There has been an 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
Judicial resolution conferences the Courts Legislation Amendment (Judicial Resolution Conference) ACT (2009) introduced the concept of the judicial resolution process.
A judicial officer presides over use of various ADR techniques between parties with the purpose of negotiating a resolution of dispute eg mediation and conciliation
Allows parties to draw on expertise and authority of judicial officer to assist a settlement without significant costs of legal representation and court fees. Available in the County, Supreme, Magistrate’s and Children’s Courts
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 %

15. Suggested changes to overcome lack of access due to financial difficulties
Abolish Committal Hearings – Victoria’s director of public prosecutions (DPP) Jeremy Rapke QC has called for committal hearings to be abolished saying they are “inefficient 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
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
Contingency fees – these fees involve a plaintiff being legally represented under a cost agreement whereby they pay no legal fees if unsuccessful (no win no fee).
If successful they pay the legal firm a percentage of their damages
Contingency fees are prohibited under the Legal Profession Act 2004 (VIC)

16. 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. Improving court processes and procedures and increasing resources may reduce delays in the legal system.
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

17. Causes of delays Criminal 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

18. Recent changes to overcome delays and achieve a timely resolution of disputes
Increased use of ADR within the court system - Victorian Government committed to spending $17.8 million between 2008–09 to 2012–13 to enhance the use of ADR in the Victorian court system.
Saves time as the time to hear a case is far less, as is the time it takes to hear the dispute
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 %
More efficient use of technology –
over recent years courts and tribunals have made more efficient use of technology to provide for the electronic filing, storage and exchange of documents between parties and the courts and tribunals. For example, the Integrated Court Management System was introduced in the Supreme Court in 2009–10 to help reduce delays be providing electronic filing for legal counsel and a recording system for court data.
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.

19. Suggested changes to overcome delays and achieve a timely resolution of disputes
Extend court hours – 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.
Reform the jury system –
Victoria is the only state in Australia that allows the optional use of juries in civil trials.
The empanelment process and jury directions all take time during trial, so abolishing the use of a jury in civil trials could reduce the length of trials.
Similarly, the compulsory use of a jury of 12 to determine the verdict in criminal trials may cause delays, so the abolition of the jury or the introduction of majority verdicts (11 jurors in agreement with the verdict) in all criminal cases may reduce delays, although these reforms are controversial and would need a referendum due to section WHAT of our constitution???

20. 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
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

21. Case example

22. Problems
Recommended change
Lack of legal service in regional and isolated areas for indigenous people
State and federal governments could increase funding to legal advice and assistance bodies (such as Victoria Legal Aid and specific indigenous organisations) so more support services can be provided, especially in remote and regional areas.
Language differences – in addition to cultural differences, the aboriginal way of communicating may mean that direct questions are unwelcome, or reluctance to look at people in the eyes, and they may answer “I don’t know” or “I don’t remember” if they feel the interviewer is behaving inappropriately. They may also answer with gratuitous concurrence - they will agree with a questioner in situations where they do not understand the question or do not agree with the question, but wish to establish a positive relationship with the questioner
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)
High costs of legal services - As with many disadvantaged groups, the high costs involved in seeking legal advice, assistance and representation can impede the ability of indigenous offenders to access the legal system.
Increase the provision of legal aid, assistance and support that is specifically available for indigenous offenders and make such assistance more readily available within indigenous communities (especially in remote and regional areas).
Reluctance to give evidence in open and public courts - Language and cultural factors may combine to cause indigenous offenders to be reluctant to give evidence because they fear being judged or shamed.
Offer indigenous offenders the option of having hearings and trials conducted in closed courts.

23. 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
This division of the County Court sits in the La Trobe Valley law courts in Morwell
It is a sentencing Court that was established to overcome some of the cultural differences experienced by Aboriginal people in the legal system
There are informal proceedings which helps accused understand the case as well as family and community
A Koori elder or respected person advises the court on cultural issues and these are considered in sentencing
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).

24. 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 = 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