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Ethics, Law and Justice - Question 1

Issue-

  • What are retributive and restorative justice?
  • What they both have in common?
  • In what cases do they differ from each other
  • Should the Australian justice system be changed to retributive or restorative and why?

Rule-

Journals

Application-

In a book, ‘Restorative Justice’ by Howard Zehr, says the concept of restorative justice system dates back to 1974, in Canada, where the offenders were taken to their victim's home by a probation officer and his co-worker for an appeasement. According to him, those who are offenders or accomplices should be given a chance to put things at a place for all the harm done as per the need and obligations.

Retributive justice is more of a sanction-imposing justice system. The prosecution establishes, on behalf of the state the crime committed by the person in front of the judge. This results in imposing any fine, incarceration, and death-sentence in certain cases. Crime and punishment go hand in hand in such type of a justice system as per Henry Tart’s article.

The similarities between the two are that they focus on maintaining justice in a state. Restorative being a more subtle justice system aims at providing justice to the victim by discussing the offence. Retributive being the more stronger justice system focuses on rendering justice to the victim by being represented by the party or parties. This system is not a violent one but is a more systematic and more transparent. The other one is that both aims at restoring morality in society. Both systems agenda is to help the victim so that his interests are met amicably. This becomes necessary because of the norms, cultures and morals that run a society.

The restorative system is more of a rehabilitative system wherein its focus is more on than offender than the offence. In retributive, the focuses is more on the offender and his crime. Restorative focuses on changing the outlook of the offender by making the offender realize the offence he committed. Retributive focuses on the offence committed by the offender in his past for which he is facing prosecution. Restorative focuses on treating the offender by making him a better person by talking with the victim. Retributive focuses on punishing the offender for the offence he committed and considering that as his rehabilitation when he faces imprisonment or fine or his acts.

Every society has different versions of crime. In some countries the civil crimes are more than criminal ones, and some vice-versa. Anciently, people were god-fearing ones and before committing any crime they use to fear the repercussions of it meaning god imposing sanctions on them. With the changes in time, people have become less on believers and hence they do not fear the repercussions of their actions. With heinous crimes like sexual exploitations, sex trafficking, murders etc, restorative justice system would be too docile on such offenders. Therefore the retributive justice system seems more plausible to exist in Australia, as that would help the victims in coping up from the physical and mental trauma they experience. The offenders too might fear at some level on the stringent laws applicable for any offence.

Ethics, Law and Justice - Question 2

  • Is there any way by which Maggie can have recourse to where she doesn’t have to pay for the entire case?

Rule-

Governmental websites

Precedents

Application-

As per LM P. 210, implied terms, the lawyer has a duty to provide services to the clients with standard care and skills and have a duty to act in their best interests. As per The New South Wales Law Society Community, the first pro-bono scheme came in 1992 in Australia. After that, a huge number of clearinghouses and other pro-bono schemes came into the picture. According to the statistics released by Australian Pro Bono Centre (APBC), the '2014 National Survey', the law firms in Australia have contributed at a larger scale in the pro bono litigation despite of a slump in the total number of lawyers.

In Dietrich (1992) case, the high court held that where the person is not able to legal representation then the state must assist such people. However this provision is for defendants only. The constitution of Australia does not explicitly talk about free legal representation in any type of cases. It was in 1977 when the Australian government enacted the Commonwealth Legal Aid Commission act 1977 (LAC) where the federal and state government came to an arrangement to help independent legal aid commissions formed under state legislation.

As per the Australian Pro Bono Manual released by the National Pro Bono Centre and Victoria Law Foundation, LAC can grant legal aid only when the matter of what a state /Commonwealth guidelines approve off; or the applicant is able to pass a means test based on his income and assets; or the matter is what seems to be of merit. After passing the given guidelines, then the case gets passed to either a private practitioner or a lawyer from in-house commission.

According to the ‘2014 National Survey’ conducted by the Fourth National Law Firm Pro Bono Survey, the five main practice areas of pro bono assistance were employment law, governance, commercial agreements and for deductible gifts in taxation and IPR. Apart from LACs, there are independent, non-profit Community Legal Centres who also provide assistance. There are approx. 150 CLCs in 2013-2014. These centres comprise of 6 to 10 members with one employed solicitor. Then, as per the New South Wales Bar Association, "Briefing Barristers: Legal Assistance” there are Bar Association Pro Bono Programs, who also help people in need of legal aid. Like the NSW Bar Association maintains a Duty Barrister Scheme with local courts to help those who cannot afford to pay legal costs. As per The Kingsford Legal Centre at the University of New South Wales, law schools encourage students to do internships in CLCs, legal aid schemes or local clearinghouses. There are around 25 law schools giving clinical legal education to the needy.

Conclusion-

Being her advisor, I would suggest Maggie to take help from any of the above mentioned legal aid centers, which she find suitable enough to solve her case. Her case does comes under the ambit where pro bono cases are applied. Therefore she can have a way out of this system. The only thing she has to prove is that she has to show her income statements and books of account that she is ineligible to pay for the litigation costs and hence needs state assistance. Without this proof, she is not entitled for any such help.

Ethics, Law and Justice - Question 3

Issue

Can Daisy Miller apply for re-admission?

Rule-

Legal Profession Uniform Admission Rules 2015 (Admission Rules)

Application-

As per rule 10 of Legal Profession Uniform Admission Rules 2015 (Admission Rules), for section 17(2) (b), for the admission process, the Board has to determine that whether a candidate is adequate enough to apply for. Rule 10(h) states that the Board shall take account of whether a person has been convicted for any offence in Australia or in a foreign country. For this they shall look into the nature of offence; the time when the offence was committed; and the applicant's age when he committed the crime.

As per Rule 17, a statement has to be made by the applicant stating any information which he feels that the Board should have knowledge off and may consider disfavourable. A complete and full disclosure is expected from the applicant. If the application does not have any candour or mislead attempts to mislead the Board, then that application shall be rejected or deferred by the Board. Like in Re OG (2007) case, a newly admitted lawyer was struck off as he did not disclose crucial information regarding collusion in an assignment. Candour means trust is the most essential requirement during the admission of an applicant. In Wendy Bacon case (1981), it was held that a person has to be trusted for telling the truth. It's a totally different matter that later the same person breaches the law, but initially he has to taken at the face value. In other words, it means that being untruthful is a sign of bad character and that can lead to rejection of the application.

Rule 14 says that while considering the application for readmission, in addition to the requirements set out in rule 12, the court has to see that what were the reason for his removal from Supreme Court, events that can say that the person is a changed man and now has good fame and character, etc.

Conclusion-

Being her advisor, I would suggest Daisy to apply under Rule 14 for the readmission of the certificate. Under rule 17 she should disclose all of the allegations and the suit against her in lieu of which she was charged was bribery. She should come clean in front of the Board and show develop her candour in front of the Board. She must show that she is ashamed of what she did in 1990. She should show that her job of financial broker in 1994 has changed her and that she had worked there with utmost honesty. She should show all the evidences she has with her that could back her justification of being a changed person. Likewise, she can be admitted by the Board. 

Ethics, Law and Justice - Question 4

Issue-

  • Will Ellen succeed in the suit against Pansy?
  • If not, then whether the law

Rule-

Online material

Application-

A solicitor is obligated to act in the best interests of his clients. They are supposed to guide them literally and with utmost sincerity. They owe a duty of advising their clients what they feel is right for them to do and would level-up their chances of success. However this concept is based on case to case. This principle is called ‘objectivity.’

in Somerville (2009) case, the solicitor acting for a group pf companies advised the directors of the company to transfer their shares as a new company cannot make instant dividend payments. Like this, the creditors shall not attack the assets of the company. The court held that the solicitor aid was abetted and was not in best interests of the directors and hence he was disbarred.

For assessing that there is a reasonable prospect of success, the solicitor has to see the case form legal and factual view. He should interpret it with the past cases, the current law in force and other legal mechanisms. The relationship of the solicitor and his client is that of a fiduciary relationship and that should be there for dealing with the case. He must be honest and courteous in dealing with cases. He must be diligent enough to carry the case without any biases.

Conclusion-

For the given case, Ellen shall not succeed in prosecuting Pansy. Reason being, that she asked her to plead guilty for the murder charges. This could be of the fact she knew that the evidences against Ellen were serious and would anyway convict her. Ellen pleaded not guilty which in return lead her to be sentenced for imprisonment, as Pansy said. It was later when she pleaded she was acquitted. So Pansy is not liable for breaching her duty as she was upfront to her this entire time and told her to plead guilty. Had Ellen done that she might have faced less imprisonment. She worked with utmost sincerity and fulfilled her duty as a barrister. Therefore, she shall not succeed against Pansy.

For the law in this issue, it is about being negligence which Ellen thinks Pansy should be liable off. Negligence is termed as when a person had a duty of care against the other, and he does not fulfil that duty. This tort is usually used in the case of manufacturers, retailers and consumers who due to their carelessness harm the consumers. Also this case can be about the Legal Profession Uniform Law which states that all legal practitioners have to fulfill their duties with utmost sincerity and should not be bias to their clients. The legal practitioners have to keep their case in front of the jury the way it is. Now it is up to the jury and the judge to decide whether they can buy the defence's claim or the prosecution's claim.

Ethics, Law and Justice - Question 5

Issue-

  • Can the defence lawyer still work on the acquittal of the client?

Rule-

ASCR

Application-

The lawyer whose client pleads to be not guilty even though she confesses her crime, the lawyer cannot refuse to take such a person's case. The art of litigation is that the prosecution has to state the truth in the court and the defence has to make sure that no truth are untold. So yes, the lawyer is entitled to work for the acquittal of the client. However, this is subject of the legislations of ASCR.

As per section 20.2 of ASCR, the lawyer may ask the client to change her lawyer if there is ample time for her to change if the client does not insist on staying with you. In cases where the lawyer has to work for the client to acquit her, there he has to make sure of some things. First, he should not impose the responsibility of the guilt on some other person and convict him falsely; he must not set up a fake case showing that his client is innocent; he must set up the scenario with which it could be proved that the client is not guilty of the offence; develop a case showing that the flaw committed by his client is not a crime; or any other reason that could show that he did not commit any crime. A very interesting point is, where the client asks the lawyer to falsely show evidences showing her innocence, that should not be done by the lawyer.

It is the responsibility of the prosecution to show that the defence is hiding the real truth. If he does not do that, then so the person cannot be convicted as per Tukiar case (1934). 

Conclusion-

Hence abiding by the requirements of the ASCR guidelines, the lawyer should take the case of the client but keep in mind the requirements of it.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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