Problems and difficulties faced by individuals in using the legal system - PowerPoint Presentation

Slide1

Problems and difficulties faced by individuals in using the legal system Slide2

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. Slide3

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.

T

here have been cases where plaintiff’s costs of pursuing case are almost as much s the damages awarded Slide4

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. Slide5

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 %Slide6

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)Slide7

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 trialSlide8

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 appointmentsSlide9

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.Slide10

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???Slide11

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 Slide12

Case example Slide13

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.Slide14

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).Slide15

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