Focus question 5: How does Australias legal system attempt to ensure fairness and to protect people?
Teaching and learning activities
Court cases involve either civil law or criminal law.
In civil law, the dispute is basically between two people about a matter which affects only them. For example, if someone owed you money and would not repay it, it is a civil matter - you could take the person to court to get the money from them. In a dispute between neighbours over an overhanging tree, one neighbour might take the other to court if they could not solve the problem in any other way.
Criminal law involves a situation in which a person has done something which is seen as a threat to the whole community. Theft, murder and physical assault are examples of criminal acts. The state, meaning the government, takes responsibility for taking people accused of these crimes to court on behalf of the whole community (which includes you).
Activity 1: Civil and criminal law
List five sorts of problems that you would expect to find as civil law cases in court and five that you would expect to see as criminal law cases.
The rest of this unit examines what happens in criminal cases, including how our legal system tries to make sure that people get a fair trial.
In a criminal law court case, the aim is to decide:
- what happened in a situation and
- if somebody broke the law.
If they did not, they are set free. If they did, they are punished in some way. Especially in a criminal case, in which a person might lose their freedom or be fined a large amount, it is important that the trial is a fair one.
A court trial involves these main parties:
- The prosecution lawyer or lawyers, who present evidence in favour of the accused persons having committed the crime. Most of this evidence would have been gathered by the police who investigated the crime. The prosecution has to prove beyond reasonable doubt that the accused committed the crime.
- The accused or defendant, who may have a lawyer to represent them. The accused (or their lawyer) can present the evidence in favour of their being innocent of the crime, and also question (cross-examine) the prosecution witnesses.
- In serious crimes, a jury of 12 persons decides whether the prosecution has proved beyond reasonable doubt that the accused committed the crime.
- A judge (or in lower courts a magistrate) makes decisions about the law and sees that all parties follow the rules of the trial. The judge decides on the sentence if the accused is found guilty.
- Witnesses can be questioned and then cross-examined by the other side. If they lie to the court they commit a crime themselves.
Activity 2: Saxon law
2a Read The law of Saxon times. Remember the Saxons lived over 1,000 years ago. English common law replaced their customs.
2b In your workbook write a heading that describes the way law was applied in cases b, c, d, e and f. The heading for a has been done for you.
2c For each of a to f, write a sentence or two about any problem you can see with this kind of law system.
The law of Saxon times
a The victim is responsible for punishment
Law was based on duties between people - if someone broke a law, then the person who was harmed by the act was responsible for punishing the other person. This could lead to what is known as a feud - a long-running dispute between two people, families or other groups, in which every harmful act leads to further retaliation.
b If you killed a farmer, you had to pay $10.00 to his relatives. If you killed a nobleman you had to pay $100.00 to his relatives. At a trial a rich person was regarded as a more believable witness than was a poor person.
c People accused of crimes were presumed to be guilty until they had proved that they were not.
d Trial was often by ordeal - in which God was called upon to prove a persons guilt or innocence. This involved the accused undergoing some ordeal, the result of which would prove their guilt or innocence. For instance, the accused might have to grasp a red-hot iron. If the resultant wound healed cleanly, that was seen as showing their innocence as God was protecting them. If it blistered, that was seen as Gods way of showing their guilt. Similarly in trial by water, if the accused floated, they were seen as guilty. If they sank but still survived, they would be regarded as innocent because God had protected them.
e The earliest form of jury to replace trial by ordeal was based on a principle that is quite the opposite of todays jury system. The jury comprised local people who knew what had happened and who were seen as able to judge between the different versions they might hear in court.
f Many trials took place in the court of the local landowner who would be entitled to the property of a losing person.
Activity 3: Principles of law
The information below shows how our legal system has developed to solve some of the problems you identified in Saxon law. For a to f write a short statement describing how it overcame one or more of the problems identified in Saxon law. (There is no corresponding statement for g.)
Development of our legal system
a The state is responsible for the criminal law: One effect of the Normans bringing the laws together as a common law was that criminal law came to be seen as the responsibility of the state, not of individuals. Today, the state makes laws to forbid crimes, polices those laws and is responsible for punishing those found guilty of criminal acts. This is the situation in most of Australia today. However, the concept of the family of the victim being responsible for punishing those who caused the harm still holds in Aboriginal customary law in some places in Australia.
b Equality before the law: Gradually, and in some cases after a long struggle to win rights, social democracy and equality of people, rights such as the right to a trial and the right not to be arrested without a good reason were extended to all people equally.
c Presumption of innocence: Today, if a person is accused of a crime, that person is presumed to be innocent until the state proves them guilty.
d Trial by jury: Trial by jury today involves a group of independent people (12 in a criminal case) making a decision based on the evidence they hear in the court. They must not be connected with or have known anything about the actual case they are hearing.
e Due process of law: This means that people have the right to proper processes of law to ensure a fair trial and that their rights under the law must always be respected. The Norman King Henry increased peoples protection by moving all trials to the Kings courts. Property could no longer be seized by local landowners.
In 1215, in response to King Johns seizing of the property of landowners to raise finances, the barons got together to make King John agree to a document called Magna Carta, which set out their rights and protections against the monarch. One right was that if a person was accused of a crime, they were entitled to a proper trial process. This key principle, part of English law ever since, ensures that people can be brought to court only by following the rules. If it can be proved that the rules were not followed in a trial, there is a right to appeal to a higher court.
f Right to remain silent: It once was common for an accused person to be tortured to give evidence. After 1641, when the Star Chamber (a court in which torture was allowed) was abolished, the accused person had the right not to say anything. If the accused had been forced into a confession, that confession was not allowed to be heard in court. Confessions were still allowed as evidence in a trial, but only if they had been obtained through proper lawful methods.
In some States of Australia today the right to remain silent has been limited. The accused person can still say nothing, but the judge can tell the jury that it can interpret that silence to mean that the person chose not to speak because to do so would provide evidence of guilt. However, when a person is interviewed by the police, all evidence must be recorded on audio or video tape so that the jury can listen to any statement made by the accused that is to be used in evidence, and can be satisfied that no force has been used in the process of obtaining the evidence.
g Right to legal representation: Today, legal aid is available to some people in criminal cases. This means that the state will pay for a lawyer to represent them in court if they cannot afford a lawyer for themselves. In this way people have a fair chance to put forward their point of view. Some people are not eligible for legal aid, and others may have to repay part or all the costs of their legal aid. The system of legal aid was developed in Australia in the 1960s and 1970s. Before that, there was some legal aid available in the most serious cases, but usually people were responsible for the cost of their own cases in court. In 1992 the High Court decided that in some circumstances the need for legal representation was so important to the fairness of proceedings that a trial could not be continued until legal aid was made available to an accused who could not afford their own lawyer.
Activity 4: Features of a fair trial
4a Trace or copy this sketch of a courtroom into your workbook. As you work through Activity 4b, identify each of the features of a fair trial in the box that follows by placing the number of the feature (1-11) at the appropriate place in the scene.
4b In your workbook use the information in Development of our legal system to help you match each of the Features of a fair trial to the correct Explanation below. Write the answers in your workbook as, for example, 7h.
Features of a fair trial
1 The government is responsible for prosecutions.
2 There is a presumption of innocence.
3 Evidence is given under oath.
4 A jury makes the decision in serious criminal cases.
5 Witnesses with evidence must give it.
6 There is a right to challenge evidence.
7 The burden of proof is on the prosecution side.
8 The accused has a right to silence.
9 No previous convictions are relevant until after the verdict.*
10 There is a right of appeal in some circumstances.
11 Legal aid is available for the defendant.
* In some places previous convictions can be revealed during the presentation of evidence.
a People have to swear that they are telling the truth. If they lie under oath, they commit a crime.
b People who have relevant evidence can be forced to give that evidence in court, or else they can be charged with a crime themselves.
c If the person is found guilty and there was some problem with the way the trial was carried out then the accused person might be able to go to a higher court to make a decision.
d The accused person does not have to give evidence in the witness box if they do not want to.
e The government has to bring the accused person to court to try to prove they are guilty.
f It is up to the state to prove that the accused person is guilty. The state has to bring the case to court and provide proof.
g If the accused person cannot afford a lawyer to defend themselves, then the state may have to supply a lawyer for them.
h The accused person does not have to prove they are innocent. It is up to the prosecution to prove that the accused is guilty.
i Each side in the trial can ask questions about the evidence provided by witnesses from the other side.
j When there is a jury in a trial, the verdict of guilty or not guilty is made by the twelve jurors, not the judge.
k A persons previous convictions for a criminal act are not allowed to be revealed until after the person has been found innocent or guilty in the case being heard.
Activity 5: Case study
Are the features of a fair trial always present? Read the facts of an actual case tried in court, along with the evidence presented in the trial of the accused.
The law of a particular State makes it a crime to break into a house with the intention of stealing goods (burglary), and a further crime to actually take the goods (theft). Burglary carries a maximum penalty of three years in prison, and theft of goods worth more than $10,000 carries a maximum penalty of twelve months in prison.
Vera (the victim) came home from work one day to find her house had been broken into. The door had been forced open by someone using tools. Jewellery worth $10,000 was missing. A neighbour described a man seen near the house.
Later the same day Dominic (the defendant) was stopped by police, because he fitted the neighbours description. He was carrying tools. When questioned, Dominic admitted the tools were his but denied that he had ever used them to break into a house.
Dominic was charged with burglary and also with the theft of jewels worth $10,000.
In court, Pam (the prosecutor, funded by the government) produced evidence to show that Dominics tools had traces of Veras door on them, and that his footprints matched those found at the house. Dominics lawyer, funded through legal aid, questioned the witness who agreed that she had not clearly seen the man and could not definitely identify Dominic as the man she saw. The police agreed that they had not found the jewels or any money in Dominics possession.
Dominics lawyer questioned Vera who admitted that the jewels were covered by insurance and that she would claim the $10,000 from her insurance company. She denied that she had hidden the jewels to claim the money. The jewels were her great-great-grandmothers and had been handed down for generations. Pam questioned Veras daughter who said her mother had promised to hand on the jewels to her.
Dominic gave evidence under oath that the tools were his, but that he had lent them to someone that day, who had later returned them just before the police arrested him. He did not know the name of this person - it was just somebody who had asked to borrow them, and whom Dominic was just trying to help out.
5a Summarise the evidence for Dominics guilt.
5b How did Dominics lawyer try to raise doubts about that evidence?
5c Identify which features of a fair trial (see Activity 4) are present in this case and write them in your workbook. Alongside each number list any aspects of Dominics trial that bear that feature. For example, alongside 1 you would write that in Dominics trial the government funded the prosecution lawyer and the police who gathered evidence against the accused.
5d Would you find Dominic guilty beyond reasonable doubt of both charges or guilty of one only or not guilty of either? Explain your reasons. Your teacher will let you know the decision in a similar case.
5e Do you think that the jury would find Dominic not guilty of theft if they had known about any prior convictions?
5f Do you think that it is right that prior convictions are not revealed to the court until after the jury has decided whether the accused person is guilty or not? (In some places the prior convictions can be revealed to the court during the presentation of evidence.)
Prepare a chart which summarises the ways in which Australias legal system tries to ensure a fair trial. Show each feature of a fair trial from Activity 4 and how you would see this feature operating in an actual trial. Either follow the style of the example below or choose another way of presenting your information.
|Features of a fair trial
||How it helps create a fair trial
||Observable in a trial|
|The government is responsible for prosecutions.
||If victims had to bring their trial to court it would often be too expensive for them, and they would not be able to conduct it properly.
||The government funds the prosecution lawyer and also the police who gather evidence against the accused.|
Your work will be assessed on:
- identifying the main ways the legal system attempts to ensure a fair trial
- clear and accurate explanation of how each way attempts to ensure a fair trial
- accurately identifying and explaining where or how you would see the features that attempt to ensure fairness in a case on trial.
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