1.2 Sources of Contemporary Law - Common Law

Question 1

what is common law?

Answer 1

refers to laws created within the court (case law or judge-made law)

Question 2

what is precedent?

Answer 2

judges must resolve disputes considering previous decisions in similar cases

Question 3

what are the precedent aims/benefits?

Answer 3

it ensures consistency; increase equality between parties; improve transparency; parties have knowledge/suggestion of outcome

Question 4

what is BINDING precedent?

Answer 4

judges of lower courts MUST follow the precedent set by the higher courts, and are bound by ratio decidendi of the higher court, ONLY when cases are sufficiently similar.

Question 5

what does ratio decidendi mean?

Answer 5

reason for decision

Question 6

what is PERSUASIVE precedent?

Answer 6

may influence decision, however, judges are not bound to follow (e.g. different court jurisdiction decisions, judicial statements, lower court decisions, etc.)

Question 7

what is opiter dicta?

Answer 7

statements made by a higher court judge may be taken into account, but don’t create precedent.

Question 8

what does the inquisitorial system of trial involve

(this is NOT used in Australia)

Answer 8

judges are more actively involved in the case and are able to admit evidence, decide upon what questions are asked, and can decide which witnesses will be called.

Question 9

what does the adversarial system of trial involve?

Answer 9

two parties (prosecution & defence), arguing their case in front of a ‘neutral third party’ judge (higher courts), magistrate (lower courts), and/or jury

Question 10

what is the process of the adversarial system court?

Answer 10

each side has control over what evidence it introduces to the court and over the witness it may call to support its case → then cross-examined by the opposing side.

Question 11

what are the positives of the adversarial system?

Answer 11

it allows both parties to present their case equally, does not promote bias, and protects the rights of individuals and the presumption of innocence.

Question 12

what are the negatives of the adversarial system?

Answer 12

it encourages prioritising winning rather than discovering the truth, and may result in judgements based on arguments rather than evidence.

Question 13

what is the adversarial system case study (case citation)?

Answer 13

R v Gittany (2013)

Question 14

what was the backgroud that led to the R v Gittany (2013) case?

Answer 14

charged with the murder of fiancée, Lisa Cecilia Harnum on 30th July 2011. Harnum fell to her death from their apartment balcony in Sydney. alleged that Gittany lifted Harnum over the balustrade and “unloaded” her, over the edge.

Question 15

what was the decision of R v Gittany (2013)?

Answer 15

Gittany was found guilty of murder and sentenced to 26 years of imprisonment, with 18 years non-parole

Question 16

what did the R v Gittany (2013) uphold (case study analysis)

Answer 16

justice achieved for society (protects society), and meets with society’s needs and expectations

Question 17

what does actus reus mean?

Answer 17

the act of committing the offence

Question 18

what does mens rea mean?

Answer 18

guilty mind, recklessness, intention behind the act

Question 19

what does the NSW Court hierarchy consist of?

Answer 19

local court (coroner’s court and children’s court); district court (drug court); supreme court (land and environment court); court of appeal/criminal appeal; high court

Question 20

what does the Local Court hear?

Answer 20

hears summary offences & civil matters under $100k

Question 21

what does the Coroner’s Court determine?

Answer 21

determines whether there is evidence of a criminal act leading to death or fire damage requiring referral to a higher court

Question 22

what does the Children’s Court hear?

Answer 22

cases involving children

Question 23

what does the District Court hear?

Answer 23

hears indictable offences (armed robbery, sexual assault), civil matters involving $100k - $750k, all civil cases involving motor accidents, and appeals from the local and children’s court

Question 24

what is the purpose of the Drug Court?

Answer 24

specialist court for those drug dependent

Question 25

what does the Supreme Court hear?

Answer 25

hears serious indictable offences (murder, manslaughter), civil matters involving over $750k, civil matters involving wills and equity

Question 26

what does the Land and Environment Court hear?

Answer 26

hears environmental matters

Question 27

what does the Court of Appeal/Criminal Appeal hear?

Answer 27

hears appeals from NSW District, Land & Environment, and Supreme Court.

Question 28

what does the AUS Federal Court hierarchy consist of?

Answer 28

circuit court; federal court; family court; high court

Question 29

what does the Circuit Court hear?

Answer 29

hears disputes under Commonwealth legislation, shared jurisdiction with Family & Federal court, 90% workload related to family law matters (2018)

Question 30

what does the Federal Court hear?

Answer 30

hears disputes under Commonwealth legislation, hears appeals on decisions made by Commonwealth officers, and Circuit Court, hears Native Title matters

Question 31

what does the Family Court hear?

Answer 31

hears complex family disputes, and matters including parenting arrangements.

Question 32

what does the Australian High Court hear?

Answer 32

Constitutional matters, cases brought by or against Federal Govt., cases between states, appeals from state Supreme Courts, appeal cases that require ‘special leave’ to appeal, appeals from Federal or Family Courts