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Final Report (September 1999) - Law Reform Commission of ...

Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM Exchanging witness statements and the ‘right to silence’ 21.9 There are considerations which limit the desirability of exchanging witness statements in criminal cases. The current practice in the Supreme and District Courts is for prosecution witness statements to be made available prior to trial. A pilot scheme to similar effect is being conducted in the Perth Courts of Petty Sessions. We recommend that these practices be formalised and extended throughout the criminal courts. (See Chapters 24 and 27.) However, as we discuss in Chapter 24 on ‘the right to silence’, disclosure of the defence case in criminal matters remains problematic and prior disclosure of defence witness statements should be limited. 226. The use and exchange of witness statements in all civil proceedings should be strongly encouraged. Subject to Recommendation 192 in relation to Local Court proceedings, witness statements should be available to the other party no later than seven days before the listing conference. The rule in Jones v Dunkel 21.10 The exchange of witness statements in civil matters prior to trial will put parties in a position to make informed decisions about whether to call a witness to give evidence at trial. However, parties need to be cautious of the traditional rule of evidence that the unexplained failure by a party to call a witness or lead evidence may lead to a conclusion that the witness or evidence would not have assisted the party’s case. In the case of Jones v Dunkel, (1959) 101 CLR 298, the High Court of Australia extended this rule so that potentially the failure of the party calling a witness to ask that witness certain questions in examination-in-chief also could lead to negative inferences being drawn. However, it is unlikely that negative inferences would be appropriate where there is alternative evidence on point or where other witnesses have testified to the same point. 21.11 Given the difficulty in formulating any general principle about when the rule in Jones v Dunkel could result in parties engaging in excessive examination, judicial intervention in the particular case would seem the best means to deal with any potential inefficiencies. We believe there should be no change to the rule that the unexplained failure by a party to call a witness or lead evidence may lead to a conclusion that the witness or evidence would not have assisted the party’s case, or its extended application to the questioning of witnesses. 227. There should be no change to the traditional rule that the unexplained failure by a party to call a witness or lead evidence, or its extended application to the questioning of witnesses, may lead to a conclusion that the witness, evidence or questioning would not have assisted the party’s case. 180

THE LIMITS OF EXAMINATION AND CROSS-EXAMINATION Judicial discretion to call witnesses 21.12 What if neither party is entirely comfortable calling a witness who may assist the court, particularly where the truthfulness of the witness may be questionable or the witness’s evidence may be favourable to the party only in one respect but not in others? If a party calls a witness, that party cannot cross-examine the witness on any aspect of his or her evidence unless the witness is declared ‘hostile’ — in which case the potential benefit of the evidence is effectively lost. But if the party does not call the witness, the rule in Jones v Dunkel might lead to the inference that the witness would not be helpful to that party’s case. The dilemma not only affects the parties. Because judges and magistrates cannot call witnesses at common law, the court also may be deprived of relevant evidence. 21.13 We put forward a question in the Consultation Draft ‘Curtailing Irrelevant or Unduly Protracted Examination and Cross-Examination’ (3.2) asking whether judges should have an exceptional power to call a witness if both parties agree, or if one party can show good cause. The question was answered vehemently in the negative in many of the submissions received. It was said that the suggested reform would fundamentally alter the nature of the legal system and potentially compromise the neutrality of the judge. We accept the concerns raised and on reconsideration believe the problem may be better addressed by our Recommendation 221 in Chapter 20 on evidence. If implemented, that recommendation would result in the existing laws relating to ‘hostile’ witnesses being amended as part of the adoption of an Evidence Act based on the Commonwealth provisions. The Evidence Act 1995 (Cth) makes it easier for parties to have their own witness declared (in effect) ‘hostile’ and to cross-examine the witness on any unfavourable evidence before the opposing party has the opportunity to do so. Uncooperative witnesses 21.14 The preceding discussion has been based on the assumption that witness statements are available at the request of parties so that informed decisions can be made about whether to call a witness to give evidence at trial or not. However, not all witnesses will cooperate with a party who seeks a statement from them. In civil matters, if a witness declines to provide a witness statement to a party, that party should be allowed to call the witness and subject that witness to cross-examination. 228. Should a witness decline to provide a witness statement to a party involved in a civil dispute, that party should be entitled to call the witness to give evidence at trial and cross-examine him or her, if required. 181

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    1 Touchstones The legal system on t

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    TOUCHSTONES Procedure Expense and d

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    TOUCHSTONES criminal justice system

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    TOUCHSTONES him or her adversely. W

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    2 The Justice System The existing s

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    THE JUSTICE SYSTEM acts even though

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    THE JUSTICE SYSTEM various Acts and

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    3 The Civil System The origins of o

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    THE CIVIL SYSTEM • in which a dis

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    THE CIVIL SYSTEM Pleadings as forma

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    THE CIVIL SYSTEM • settlement and

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    THE CIVIL SYSTEM own costs but also

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    4 The Criminal System The criminal

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    THE CRIMINAL SYSTEM Sessions. If a

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    THE CRIMINAL SYSTEM Jury or judge a

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    5 Measuring the Justice System The

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    MEASURING THE JUSTICE SYSTEM civil

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    MEASURING THE JUSTICE SYSTEM increa

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    MEASURING THE JUSTICE SYSTEM • th

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    6 The Adversarial System of Civil L

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    7 The Adversarial System of Crimina

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    8 Civil System — Overview Alterna

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    CIVIL SYSTEM — OVERVIEW 8.7 The S

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    9 Means of Commencing Civil Proceed

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    MEANS OF COMMENCING CIVIL PROCEEDIN

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    10 Pleadings What are pleadings? Ar

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    PLEADINGS Accordingly, we recommend

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    PLEADINGS What should case statemen

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    PLEADINGS highly critical of the cu

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    PLEADINGS Amending case statements

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    PLEADINGS (1) the documentation for

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    11 Alternative Dispute Resolution W

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    ALTERNATIVE DISPUTE RESOLUTION or w

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    ALTERNATIVE DISPUTE RESOLUTION Acce

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    ALTERNATIVE DISPUTE RESOLUTION to b

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    ALTERNATIVE DISPUTE RESOLUTION It w

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    ALTERNATIVE DISPUTE RESOLUTION 63.

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    ALTERNATIVE DISPUTE RESOLUTION to m

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    12 Case Management Case management

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    CASE MANAGEMENT 78. A listing confe

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    CASE MANAGEMENT 81. Any case dismis

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    13 Disclosure What is discovery? Un

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    DISCLOSURE directly relevant to a m

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    DISCLOSURE 89. When it is clear tha

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    14 Summary Judgment, Interlocutory

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    15 Written and Oral Submissions Wri

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    WRITTEN AND ORAL SUBMISSIONS should

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    16 Civil System — Costs Civil cos

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    CIVIL SYSTEM — COSTS 116. Order 8

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    CIVIL SYSTEM — COSTS quantum invo

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  • Page 137 and 138: LOCAL COURTS Commencing proceedings
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  • Page 145 and 146: LOCAL COURTS Summary judgment in th
  • Page 147 and 148: LOCAL COURTS Witnesses 17.26 We are
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  • Page 163 and 164: 20 Evidence Why is there a law of e
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  • Page 181 and 182: 22 Expert Evidence Expert evidence
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  • Page 191 and 192: CRIMINAL SYSTEM — OVERVIEW basis
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  • Page 209 and 210: 26 Joinder Fair trials and the issu
  • Page 211 and 212: JOINDER 271. The existing principle
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  • Page 217 and 218: CRIMINAL PROCESS IN THE COURT OF PE
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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    28 Preliminary Hearings What are pr

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    PRELIMINARY HEARINGS brief at trial

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    PRELIMINARY HEARINGS to be tendered

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    PRELIMINARY HEARINGS Proposal G Abo

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    29 Criminal Process in the Higher C

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    30 Trial by Judge Alone Trial by ju

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    TRIAL BY JUDGE ALONE according to c

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    TRIAL BY JUDGE ALONE 333. Except wh

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    TRIAL BY JUDGE ALONE a successful a

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    31 Criminal System — Costs Costs

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    CRIMINAL SYSTEM — COSTS • where

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    CRIMINAL SYSTEM — COSTS reasonabl

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    32 Appeals The system of appeals Ap

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    APPEALS of a decision can be appeal

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    APPEALS • appeals from a judge or

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    APPEALS • questions of relevance

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    APPEALS 355. Order 65B rule 3 (3)b

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    APPEALS Short form judgments 32.24N

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    APPEALS requirements in civil matte

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    APPEALS no appeal against an acquit

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    APPEALS to serve that purpose. Ther

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    33 Boards and Tribunals Boards and

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    BOARDS AND TRIBUNALS consistent pro

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    BOARDS AND TRIBUNALS 374. If all bo

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    BOARDS AND TRIBUNALS 383. Original

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    BOARDS AND TRIBUNALS 391. Where the

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    34 The Court Environment Architectu

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    THE COURT ENVIRONMENT there walls,

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    THE COURT ENVIRONMENT them. Court s

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    THE COURT ENVIRONMENT of courts adj

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    THE COURT ENVIRONMENT 412. Future c

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    THE COURT ENVIRONMENT Courts’. As

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    THE COURT ENVIRONMENT Self-represen

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    THE COURT ENVIRONMENT vulnerable wi

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    35 Technology and Justice The impac

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    TECHNOLOGY AND JUSTICE Uniformity i

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    TECHNOLOGY AND JUSTICE Authenticity

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    TECHNOLOGY AND JUSTICE 35.17 Recent

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    TECHNOLOGY AND JUSTICE 35.23 In the

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    36 The Legal Profession The legal p

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    THE LEGAL PROFESSION role of the le

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    THE LEGAL PROFESSION • While ther

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    THE LEGAL PROFESSION through to the

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    37 Private Civil Courts The adversa

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    PRIVATE CIVIL COURTS 446. Private c

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    Appendix 1 Acknowledgments The memb

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    ACKNOWLEDGEMENTS Charles Brookes Do

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    ACKNOWLEDGEMENTS Lizzie Hill Gisell

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    ACKNOWLEDGEMENTS Hon Judge MDF O’

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    ACKNOWLEDGEMENTS Anna Wasylkewycz M

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    GLOSSARY Applicant Application to s

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    GLOSSARY Disbursements Discovery Mo

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    GLOSSARY 'Interest-based' mediation

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    GLOSSARY Plaint Plaintiff Practisin

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    GLOSSARY and a timetable for the ca

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    Bibliography of In-text References

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    BIBLIOGRAPHY of Court Rules and Pro

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    BIBLIOGRAPHY Family Law Act 1975 (C

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    List of Recommendations The justice

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    RECOMMENDATIONS 14. The Criminal Co

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    RECOMMENDATIONS (3) the practitione

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    RECOMMENDATIONS (2) if a practition

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    RECOMMENDATIONS 54. The current pra

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    RECOMMENDATIONS 74. The neutral con

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    RECOMMENDATIONS specified in the li

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    RECOMMENDATIONS 106. Either party s

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    RECOMMENDATIONS 124. Court staff sh

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    RECOMMENDATIONS 141. Limited contin

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    RECOMMENDATIONS 160. All Local Cour

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    RECOMMENDATIONS 174. Unless good ca

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    RECOMMENDATIONS practice direction

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    RECOMMENDATIONS 203. The Local Cour

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    RECOMMENDATIONS (3) The Act include

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    RECOMMENDATIONS 226. The use and ex

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    RECOMMENDATIONS 246. Where there ar

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    RECOMMENDATIONS 258. If practicable

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    RECOMMENDATIONS can be overcome by

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    RECOMMENDATIONS (3) enabling senten

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    RECOMMENDATIONS (3) any other agree

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    RECOMMENDATIONS at the close of the

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    RECOMMENDATIONS 340. When a ruling

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    RECOMMENDATIONS be made before the

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    RECOMMENDATIONS 376. The WACAT shou

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    RECOMMENDATIONS 393. Full-time and

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    RECOMMENDATIONS seek feedback from

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    RECOMMENDATIONS 436. All technologi

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