Name: ______________________________ Teacher: ______________________________

LEGAL STUDIES UNITS 3 AND 4

Practice written examination 2013


Reading time: 15 minutes
Writing time: 2 hours

QUESTION AND ANSWER BOOK

Structure of book

Number of questions Number of questions
to be answered
Number of marks

13


13

70


Students are permitted to bring into the examination room: pens, pencils, highlighters, erasers,
sharpeners and rulers.
Students are NOT permitted to bring into the examination room: blank sheets of paper and/or
white-out liquid/tape.
No calculator is allowed in this examination.
Materials supplied
Question and answer book.
Additional space is available at the end of the book if you need extra paper to complete an
answer. Clearly label all answers with the appropriate question number.
Instructions
Write your name and your teachers name in the spaces provided above on this page.
You should make use of stimulus material where it is included. However, it is not intended that
this material will provide you with all the information to fully answer the question.
All written responses must be in English.


Students are NOT permitted to bring mobile phones and/or any other unauthorised electronic
devices into the examination room.
Instructions
Answer all questions in the spaces provided.

Question 1
Identify and explain one reason for a court hierarchy.




2 marks
Question 2
Explain the term structural protection of rights.





2 marks
Question 3
Explain the difference between residual powers and exclusive powers. Provide examples to illustrate
your answer.













4 marks
Question 4
Describe one relationship between courts and parliament in law-making.







3 marks
Question 5
Explain the structure of the Victorian Parliament.







3 marks
Question 6
The following scenario contains errors.
The judge charged Matthew, the accused, with treason. At his committal hearing, the magistrate
found that there was sufficient evidence for Matthew to proceed to trial. He entered a plea of not guilty
at his trial, which could be heard in either the Magistrates Court or the Supreme Court. The jury
sentenced Matthew to imprisonment.
Identify two errors in this scenario and explain the correct definition, process or procedure that should
have occurred.








4 marks
Question 7
Evaluate one strength of parliament as a law-making body and one strength of law-making through
the courts.










4 marks
Question 8
Compare mediation and arbitration, and evaluate one strength of mediation as a dispute resolution
method used by courts and VCAT.










4 marks
Question 9
Evaluate the effectiveness of demonstrations as a method used by individuals to influence a change
in the law.










4 marks
Question 10
Evaluate two strengths of using juries and describe two possible reforms to the jury system.




















8 marks
Question 11
Claire has pleaded not guilty to committing the offence of culpable driving. She has been released on
bail while awaiting trial.
a. Explain two criminal pre-trial procedures that would take place prior to Claires trial.










4 marks
b. Distinguish between the purpose of criminal pre-trial procedures and the purpose of civil pre-
trial procedures.










4 marks

c. Identify the court that would hear this case and explain its original and appellate jurisdiction.










4 marks
d. Describe one criminal sanction that could be imposed on Claire if she were found guilty.
Explain one of its purposes.










4 marks
Question 12
Compare three features of the adversary system of trial with three features of the inquisitorial system
of trial.
















6 marks
Question 13
Explain the doctrine of precedent and discuss the extent to which the doctrine of precedent provides
for effective law-making.
































10 marks



END OF QUESTION AND ANSWER BOOK
Extra space for responses
Clearly number all responses in this space.

























































Suggested answers to Legal Studies Units 3 and 4 practice exam
2012
Question 1
Identify and explain one reason for a court hierarchy. (2 marks)
Students need to identify and explain one reason only, such as:
provides for a system of appeals , which allows for fairness and the correction of any
mistakeswithout a court hierarchy a system of appeals could not operate
provides for the operation of the doctrine of precedent, which enables consistency as similar
cases are treated in a similar way, and promotes predictability and a degree of fairness
for administrative convenienceadministrative efficiency is promoted as courts can use
personnel according to their areas of expertise
specialisationcourts are able to develop their own areas of expertise over time, which
enables them to deal with cases more efficiently than would otherwise be the case.
Question 2
Explain the term structural protection of rights. (2 marks)
The term structural protection of rights refers to the systems, structures or mechanisms in the
Commonwealth Constitution that indirectly protect rights and reflect that there are checks and
balances built into the Commonwealth Constitution to prevent misuse or abuse of power by the
Commonwealth Parliament, thereby protecting rights. Examples are representative government,
responsible government and separation of powers, which all operate to provide structural protection of
rights and prevent the misuse or abuse of power.
Question 3
Explain the difference between residual powers and exclusive powers. Provide examples to
illustrate your answer. (4 marks)
Sample response:
The difference between residual powers and exclusive powers is that residual powers are law-making
powers that are only held by the state parliament, such as education, health and transport. Exclusive
powers are those law-making powers that can only be used by the Commonwealth Parliament.
Examples of exclusive powers are Section 90 (customs and excise), Section 114 (defence), and
Section 115 (coining money).
Question 4
Describe one relationship between courts and parliament in law-making. (3 marks)
Sample response:
One relationship between courts and parliament in law-making is that parliament can codify laws
made by courts by passing legislation that incorporates common law principles, turning common law
into statute law. An example of this relationship is when the federal parliament codified common law
principles in the Mabo Case (1992) into legislationNative Title Act 1993 (Cwlth).
Students could also describe the role of the courts in the interpretation of Acts made by parliament or
that parliament sets out in Acts the jurisdiction of courts (except the High Court, the jurisdiction of
which is established by the Constitution).
Question 5
Explain the structure of the Victorian Parliament. (3 marks)
The Victorian Parliament consists of the Upper House, known as the Legislative Council, the Lower
House, known as the Legislative Assembly, and the Crown, known as the Governor.
Question 6
The following scenario contains errors.
The judge charged Matthew, the accused, with treason. At his committal hearing, the
magistrate found that there was sufficient evidence for Matthew to proceed to trial. He entered
a plea of not guilty at his trial, which could be heard in either the Magistrates Court or the
Supreme Court. The jury sentenced John to imprisonment.
Identify two errors in this scenario and explain the correct definition, process or procedure
that should have occurred. (4 marks)
The errors below could be identified, but students need to identify two errors only and explain the
correct information for each error identified.
Error 1: The judge charged John with treason.
Correction: Police charge offenders, not a judge. A judge is responsible for overseeing court
proceedings and sentencing an accused person who has pleaded guilty or been found guilty.
or
Error 2: The trial was heard in either the Magistrates Court or the Supreme Court.
Correction: Treason does not fall within the jurisdiction of the Magistrates Court. Treason is a most
serious indictable offence heard in the criminal jurisdiction of the Supreme Court.
or
Error 3: The jury sentenced John to imprisonment.
Correction: A jury does not sentence the accused. The jury only decides the verdict with the judge in
charge of sentencing the accused by imposing an appropriate criminal sanction.
1 mark for identifying each error and 1 mark for explaining each correction
Question 7
Evaluate one strength of parliament as a law-making body and one strength of law-making
through the courts. (4 marks)
Sample response:
One strength of parliament is that it can quickly respond to change in the law as the need arises and it
is the supreme law-making body, meaning that parliament can override other law-making bodies such
as courts. However, one weakness of parliament is that it can only pass laws when it is sitting.
Therefore, if parliament is not in session laws cannot be made.
(Another strength of parliament that students could evaluate is: parliament is an elected and
representative body, so if laws made do not represent the views of the majority of people they will be
voted out at the next election. However, parliament is not always effective, as party politics require
members to vote according to what the party mandates, and new laws involving different electorates
might not reflect the views of all areas.)
One strength of law-making through the courts is that judges are appointed rather than elected, like
politicians. This means that courts are not subject to the views of the community or party politics and
so make decisions based on the law, not the policies of a political party or the views of people in the
community. However, one weakness of judges being appointed and not elected is that they are not
representative of the communitys views and values.
Question 8
Compare mediation and arbitration, and evaluate one strength of mediation as a dispute
resolution method used by courts and VCAT. (4 marks)
Sample response:
One similarity between mediation and arbitration is that they are both less expensive, less formal and
less time-consuming than court action. They are both alternative dispute resolution (ADR) methods
used by courts and tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT), to assist
the parties involved to resolve a civil dispute before an unbiased (impartial) independent third party.
One difference between mediation and arbitration relates to the role of the third party. In mediation,
the role of the mediator is to listen to the parties and facilitate discussion that encourages them to
negotiate and compromise in order to make their own decision to resolve the dispute. A mediator
does not suggest outcomes or give advice to the disputing parties. A decision made in mediation is
not legally binding, meaning that parties do not have to follow the decision made (unless the written
agreement has been incorporated in a court or tribunal order). However, in arbitration the role of the
arbitrator is to listen to the parties and decide the outcome by imposing a legally binding decision that
the parties must follow.
One strength of mediation as a dispute resolution method used by courts and VCAT is that it allows
for the parties to discuss the problem and compromise in order to reach a mutually agreeable solution
themselves. However, one weakness of mediation as a dispute resolution method used by courts and
VCAT is that the parties may not be in an equal bargaining position and one party may concede too
much.
Question 9
Evaluate the effectiveness of demonstrations as a method used by individuals to influence a
change in the law. (4 marks)
Sample response:
One strength of demonstrations as a method used by individuals to influence a change in the law is
that they allow people to have a say in influencing such a change. The number of people who attend
the protest is an indication to members of parliament of the level of community support for the
suggested change in the law. As parliament is an elected body that is supposed to represent the
views of the majority of people in the electorate, parliament will respond to calls for change that
represent the majority view.
However, a weakness associated with individuals participating in a demonstration as a method of
influencing a change in the law is that it may not result in a change because there is no guarantee
that parliament will take any action to change the law. In fact, parliament may simply ignore the
demonstration and choose not to change the law. Therefore, the process of protesting would have
been a complete waste of time.
Demonstrations are also a means of gathering community support for a change in the law. However,
a weakness associated with individuals participating in a demonstration as a method of influencing a
change in the law is that protests can get out of hand and can become dangerous or violent. If this
occurs, the community may not support the call for change.
Question 10
Evaluate two strengths of using juries and describe two possible reforms to the jury system.
(8 marks)
Sample response:
One strength of using juries is that it can be argued that juries are considered to be trial by ones
peers/ordinary people from society who represent a cross-section of the community. This is a
strength because potential jurors who are Australian citizens over 18 years of age are randomly
selected from different ages, genders, occupations, education and cultural and social backgrounds
within the community. On the other hand, a weakness of juries is that juries may not represent a true
cross-section of the community because not all people are allowed to serve on a jury. Some people
are disqualified or ineligible and therefore not allowed to serve on a jury, while other people may be
eligible but temporarily or permanently excused for a good reason. Also, some people may be
challenged by a lawyer during the empanelling process, which not only leaves fewer people actually
available to serve on a jury, but suggests that a jury is handpicked by lawyers.
Another strength of using juries is that the decision-making is shared among 12 people in a criminal
trial or six people in a civil trial who are unbiased/impartial when deciding the outcome of a case,
rather than just one judge deciding the outcome of the case. This is a strength of the use of juries
because it involves more than one person in the decision-making process, allowing for different views
to be considered before a verdict of guilty or not guilty is reached, instead of one judge only making
the decision on their own. However, a weakness of the jury system is that juries may not actually be
impartial or unbiased and could bring their own personal biases or prejudices into a courtroom. Also,
the fact that juries do not have to provide reasons for their verdict, is another weakness because the
parties involved in the case do not know how the jury actually reached their verdict or why they won or
lost their case.
One possible reform to the jury system is to train jurors so that they have a better understanding of
what jury service involves and what specific legal terminology used in court means or appoint a
specialist foreperson who is trained on legal matters with the ability of being able to advise the jury on
court processes and procedures as well as the strict rules of evidence and procedure.
Another possible reform to the jury system is that juries could provide reasons for their verdict so that
the parties are aware of how the case was decided and the reason behind the verdict (decision) of the
jury.
Question 11
Claire has pleaded not guilty to committing the offence of culpable driving. She has been
released on bail while awaiting trial.
a. Explain two criminal pre-trial procedures that would take place prior to Claires trial.
(4 marks)
Sample response:
Bail is a criminal pre-trial procedure where an accused person is released from custody into
society on the condition that the person will appear in court at a later date. It gives the accused
time to prepare their case before being heard in court. Remand is the holding of a person in
custody while awaiting trial or sentencing.
The difference between bail and remand is that bail means that the accused is released from
custody into society until their trial date on the condition that they return to court for their
hearing or trial. Other conditions may be set for an accused person to be released on bail, such
as a surety, paying a sum of money, reporting to a police station and handing in their passport.
Remand, on the other hand, means that bail is denied or when bail is granted but the accused
cannot pay the necessary payments themselves or locate a surety. In other words, the accused
person must remain in custody until their trial.
Students could refer to bail, remand or committal hearings to answer this question.
b. Distinguish between the purpose of criminal pre-trial procedures and the purpose of civil
pre-trial procedures. (4 marks)
Sample response:
The purpose of criminal pre-trial procedures is to recognise the right to be considered innocent
until proven guilty, to protect the community and to ensure that only those cases in which there
is sufficient evidence are taken to trial in the higher courts. The process of bail allows a person
suspected of committing a criminal offence to be released into the community. This is
recognition that all people are entitled to their liberty unless they have been found guilty by a
court; that is, that we are all innocent until proven guilty. However, the law also recognises that
there is a need to protect the community. Under some circumstances, a person suspected of
committing a criminal offence will not be granted bail as they are considered a danger to the
community and they will be detained on remand. The committal hearing process acts as a filter
for weak cases. If a case does not have sufficient evidence to justify a conviction in a higher
court, it will be dismissed.
In comparison, the purpose of civil pre-trial procedures is to encourage out-of-court
settlements. This differs from criminal pre-trial procedures, as criminal disputes must be
decided in a courtroom trial, not settled out of court. Also, civil pre-trial procedures encourage
the exchange of information between the parties to the dispute. The purpose of civil pre-trial
procedures is to clarify the nature of the claim and what remedy is being sought. In doing this,
the pre-trial procedures encourage an out-of-court settlement. This means that the dispute will
be settled/resolved without going to court.
c. Identify the court that would hear this case and explain its original and appellate
jurisdiction. (4 marks)
The court that would hear this criminal trial is the County Court because the County Court has
the jurisdiction to hear serious indictable offences like culpable driving.
The original criminal jurisdiction of the County Court is to hear serious indictable offences, such
as armed robbery, rape, drug trafficking and culpable driving. The appellate criminal jurisdiction
of the County Court is that it can hear criminal appeals from the Magistrates Court against a
conviction or sentence (severity or leniency of sentence).
The civil jurisdiction of the County Court is unlimited. The County Court does not have a civil
appellate jurisdiction.
d. Describe one criminal sanction that could be imposed on Claire, and discuss one of its
purposes. (4 marks)
Sample response:
One criminal sanction that could be imposed on Claire is imprisonment. Imprisonment, also
referred to as prison or jail, is when the offender is deprived of their liberty and detained for a
certain period of time. It is a considered a punishment of last resort as it takes away a persons
freedom for the amount of time they have been sentenced to jail.
One purpose of imprisonment is to protect the community from the offender as this is only
guaranteed by the removal of an offender from society through imprisonment. For the duration
of the sentence, the offender is not in a position to be a threat to the community.
Other purposes students could discuss include to: punish the offender, deter the offender and
others from committing similar acts, and to rehabilitate the offender so that they do not re-
offend.
Students could also discuss a suspended sentence, Community Correction Order or fine.
Question 12
Compare three features of the adversary system of trial with three features of the inquisitorial
system of trial. (6 marks)
Sample response:
One feature of the adversary system of trial is the need for legal representation. A legal representative
provides representation to their client by preparing and presenting the clients case and by
questioning witnesses under oath in court. Legal representation is necessary because lawyers are
experts in articulating legal arguments, presenting evidence and asking witnesses relevant questions
to present the best possible case on behalf of their client to win the case. Legal representatives also
know and understand the strict rules of evidence and procedure that are required to be followed in
court. In comparison, the role of the legal representative in the inquisitorial system is different from the
role of the legal representative in the adversary system because in the inquisitorial system the legal
representative assists the judge to determine issues for investigation and also assists the judge in
determining the truth. Sometimes legal representatives ask witnesses questions, but only after the
judge completes asking their questions.
Another feature of the adversary system of trial is the role of the parties. The parties are responsible
for preparing and presenting their case. By comparison, the role of the parties in the inquisitorial
system is different from the role of the parties in the adversary system. In the inquisitorial system, the
role of the parties varies, where parties respond to the courts directions when presenting arguments
in their case.
Another feature of the adversary system of trial is the role of the judge. The judge does not have a
very active role in the adversary system. Instead the judge is impartial and oversees court
proceedings without favouring either party. The judge ensures that strict rules of evidence and
procedure are followed in the courtroom, decides questions of law, only asks questions to clarify
issues, directs the jury (if empanelled), and sentences an accused person who has either pleaded
guilty or been found guilty of committing a crime by imposing a criminal sanction or in civil cases
deciding on a civil remedy for the plaintiff in cases without a jury. In comparison, the role of the judge
in the inquisitorial system is different from this. In the inquisitorial system, the judge has a more active
role in the examination of a case and is involved in investigating the facts, determining which
evidence is presented, questioning both the parties involved and witnesses, applying the law to the
facts, and making a decision to decide the outcome of the case.
Question 13
Explain the doctrine of precedent and discuss the extent to which the doctrine of precedent
provides for effective law-making. (10 marks)
Sample response:
The doctrine of precedent refers to when a court follows principles of law established in a previous
case where the facts are similar. In other words, judges follow past decisions in future cases with
similar facts. The doctrine of precedent is based on the principle of stare decisis, where lower courts
stand by the decisions already made by a judge in a higher court in cases where the facts are similar.
This is the basis of the doctrine of precedent.
There are two types of precedent: binding precedent and persuasive precedent. A binding precedent
is created by higher courts and must be followed by all lower courts in the same court hierarchy. A
persuasive precedent is created by lower courts, courts at the same level, or courts from another
hierarchy (interstate or overseas), and does not have to be followed by higher courts. Instead, the
higher courts can choose to follow this type of precedent as a guide or example.
The ratio decidendi is the reason for the decision given in a court judgement. It forms a binding
precedent and therefore must be followed by lower courts in the court hierarchy. Obiter dictum is a
judges statement of opinion or observation made during a judgement, but is not part of the reason for
a decision. It is instead a statement said by the way. Therefore, it forms a persuasive precedent.
One strength of courts is that the doctrine of precedent allows for consistency when making laws
because previous decisions are applied to future cases with similar facts. It also ensures flexibility in
the law as courts can avoid following a precedent by using one of four techniques (reversing,
overruling, distinguishing and disapproving) available to judges. However, one weakness of precedent
is that because some judges are conservative or traditional and may not want to depart from following
a precedent, inflexibility may result.
Another strength of the courts in law-making is that the process of precedent provides for greater
certainty in the law. Like cases are determined in a like manner and this makes the system relatively
predictable. Law reports record the decisions of the courts and individuals can read these decisions to
determine what the law is. However, one weakness is that judges can avoid following a precedent
using the techniques of distinguishing the present case from an earlier decision or by overruling or
reversing the earlier decision.
Students could discuss a range of strengths (and any counteracting weaknesses) of the doctrine of
precedent to address the question of whether precedent allows for effective law-making. Students
could provide a brief explanation of the doctrine of precedent and an extensive discussion of its
effectiveness or a detailed description of the operation of precedent and a shorter discussion of its
effectiveness. Both approaches are acceptable but students must demonstrate an understanding of
both the operation of precedent and the strengths and some weaknesses of precedent, in order to
gain full marks.