1.2 Sources of Contemporary Law - Common Law Flashcards
what is common law?
refers to laws created within the court (case law or judge-made law)
what is precedent?
judges must resolve disputes considering previous decisions in similar cases
what are the precedent aims/benefits?
it ensures consistency; increase equality between parties; improve transparency; parties have knowledge/suggestion of outcome
what is BINDING precedent?
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.
what does ratio decidendi mean?
reason for decision
what is PERSUASIVE precedent?
may influence decision, however, judges are not bound to follow (e.g. different court jurisdiction decisions, judicial statements, lower court decisions, etc.)
what is opiter dicta?
statements made by a higher court judge may be taken into account, but don’t create precedent.
what does the inquisitorial system of trial involve
(this is NOT used in Australia)
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.
what does the adversarial system of trial involve?
two parties (prosecution & defence), arguing their case in front of a ‘neutral third party’ judge (higher courts), magistrate (lower courts), and/or jury
what is the process of the adversarial system court?
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.
what are the positives of the adversarial system?
it allows both parties to present their case equally, does not promote bias, and protects the rights of individuals and the presumption of innocence.
what are the negatives of the adversarial system?
it encourages prioritising winning rather than discovering the truth, and may result in judgements based on arguments rather than evidence.
what is the adversarial system case study (case citation)?
R v Gittany (2013)
what was the backgroud that led to the R v Gittany (2013) case?
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.
what was the decision of R v Gittany (2013)?
Gittany was found guilty of murder and sentenced to 26 years of imprisonment, with 18 years non-parole
what did the R v Gittany (2013) uphold (case study analysis)
justice achieved for society (protects society), and meets with society’s needs and expectations
what does actus reus mean?
the act of committing the offence
what does mens rea mean?
guilty mind, recklessness, intention behind the act
what does the NSW Court hierarchy consist of?
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
what does the Local Court hear?
hears summary offences & civil matters under $100k
what does the Coroner’s Court determine?
determines whether there is evidence of a criminal act leading to death or fire damage requiring referral to a higher court
what does the Children’s Court hear?
cases involving children
what does the District Court hear?
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
what is the purpose of the Drug Court?
specialist court for those drug dependent
what does the Supreme Court hear?
hears serious indictable offences (murder, manslaughter), civil matters involving over $750k, civil matters involving wills and equity
what does the Land and Environment Court hear?
hears environmental matters
what does the Court of Appeal/Criminal Appeal hear?
hears appeals from NSW District, Land & Environment, and Supreme Court.
what does the AUS Federal Court hierarchy consist of?
circuit court; federal court; family court; high court
what does the Circuit Court hear?
hears disputes under Commonwealth legislation, shared jurisdiction with Family & Federal court, 90% workload related to family law matters (2018)
what does the Federal Court hear?
hears disputes under Commonwealth legislation, hears appeals on decisions made by Commonwealth officers, and Circuit Court, hears Native Title matters
what does the Family Court hear?
hears complex family disputes, and matters including parenting arrangements.
what does the Australian High Court hear?
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
