4. Long arm of Law Flashcards
There are 2 main types of rules:
Legal Rules -
Non-legal Rules -
Legal Rules -
these permit, modify or prohibit the activities of all people in the community. We are going to call these LAWS.
Non-legal Rules -
these determine what behaviour is unacceptable in particular groups or institutions. We call the RULES.
Laws are very similar to rules. The main differences are
Who makes them
who has to follow them and
What happens if you breach them.
Rules
Rules are binding on or followed by those who created them or voluntarily submitted to them, and are enforced by the organization, with generally minimal consequences for breaking rules.
Laws
Laws, made by Parliament, council, or court, are binding and enforced by the state, with consequences including jail time, fines, restricted rights, and job loss.
Criminal Law
Criminal Law is concerned with cases in which a person has committed an offence against the well being of the community.
criminal law It includes offences against:
- The state, such as terrorism or sabotage
- A person, such as murder or assault
- Property, such as theft or damage
- Public order, such as traffic offences, tagging and abusive language
Summary
Less serious criminal offences are referred to as Summary offences
Indictable offences
these are serious criminal offences that are heard
Children under 10
cannot be held responsible for committing a crime - it is believed they do not know the difference between right and wrong.
For children aged 10 - 14
they are presumed to not understand the consequences of their actions - up to the prosecution or police to prove they knew what they were doing was wrong
From age 15 and up,
From age 15 and up, young people can be punished - sanctions, court might be different to adults.
Civil Law
Civil Law is concerned with cases in which there is a dispute between private individuals. For the purposes of the law, a corporation or a company is considered to be an individual.
Examples of civil cases include:
Defamation - protect your reputation
Negligence - protect yourself
Trespass - protect your property
Civil laws are needed to:
Protect your rights
Impose a duty on others not to do anything to cause us harm
Provide a remedy such as compensation in the event of a breach of a civil right
Possible Court Finding Criminal Law
Guilty
Not Guilty
No Decision
Possible Court Finding Civil Law
Defendant liable or not liable
Possible outcomes Criminal law
Penalty - fine, imprisonment to punish
Possible Outcomes civil law
Civil remedy such as damages (monetary compensation)
Standard of Proof
Criminal: Beyond Reasonable doubt
Civil: On the balance of probability
Parties Involved
criminal: Prosecution and defendant
civil: Plaintiff and defendant
Jury
criminal: For all cases in the County and Supreme Courts there are 12 jurors
Civil: Only if one party requests a jury - it consists of 6 jurors
Judge
person in charge of County or Supreme Court
Magistrate
person in charge of the Magistrates’ Court
Judge’s Associate
judge’s helper
Magistrate’s Clerk -
magistrate’s helper
Prosecutor -
person who represents the State in Court, tries to prove the defendant is guilty
Barrister -
person who represent the accused/defendant
Closed court
one where the judge does not allow members of the public to attend
Enforcing the Law - Role of the Courts
Courts are like schools - they are organised in a hierarchy, where courts hear different cases depending on:
The type of case
Where the relevant action took place
How serious it was
Aus Court hierachy
- High Court
- Supreme court
- County court
- Magistrates
vic Court Hierarchy
-Supreme Court
-County Court
-Magistrates’ Court - Coroner’s Court and Children’s Court
supreme court
criminal: Most serious indictable offences (murder, manslaughter)
civil: serious offences - 750,000+
appeals: From the County Court and the Magistrates’ court
County Court
criminal: Serious indictable offences (rape, armed robbery)
Civil: More serious (unlimited amount of damages) No minimum and no maximum
Appeals: Some appeals from the Magistrates’ Court
Magistrates’ Court
criminal: Minor (summary) offences (speeding, drink driving, theft). Committal hearings
Civil: Up to maximum of $100,000 in damages being sought by the plaintiff.
Appeals: NONE
Benefits of a Court Hierarchy
Specialisation
Precedent
Rights of appeal
Administrative convenience
Appeals
An Appeal is a request to a higher court to review a
decision made by a lower court.
Children’s Court
Presided over by a Magistrate
Purpose is rehabilitation, not punishment
Always closed to the public
Childrens court divisions
Criminal Division - where defendant is 10 - 18 years old when the crime was committed and under 19 when the trial occurs
Family Division - cases for children 0 - 17 years of age who are in need of
care and protection as the child is at risk through;
Committal hearing -
heard in the Magistrates’ Court. The Magistrate has to decide whether the accused (who has pleaded not guilty) for a serious criminal offence should be sent to stand trial in the County or Supreme Court.
Bail
is the release of an accused person back into society while awaiting trial.
Remand
to hold a person in custody while awaiting trial.
Drug Treatment Order
parts
A DTO consists of 2 parts:
Custodial - sentence of imprisonment - not exceeding two years - to be served in the community to allow the participant to receive drug and/or alcohol treatment
Treatment and supervision - aims to address the participant’s drug and/or alcohol dependency
Judge
A fully qualified lawyer who normally has been a barrister for several years
The Jury
Based on the principle that people should be tried before their peers
In criminal trials, need either unanimous decision of all 12 for very serious cases or 11 out of 12 for less serious cases - they decide whether accused person is guilty or not - beyond reasonable doubt.
In a civil trial the jury decide who is liable - on the balance of probability
Criminal Juries
Each jury consists of 12 jurors.
Juries are mandatory in indictable criminal cases in County or Supreme courts when the accused pleads not guilty, funded by the Victorian State government.
unanimous verdict
Process of Jury selection
Those whose names are randomly chosen from the electoral roll receive a Notice of Jury Selection. They also receive a questionnaire from Juries Commissioner which they have to return within 14 days.
The answers to these questions helps determine whether they are:
Ineligible
Disqualified
Excused
Juror - Ineligible
Are employed in the legal industry -
Are intellectually or physically handicapped who are incapable of performing jury duty (deaf, blind)
Cannot speak and/or understand English
Juror disqualified
These are people who would be eligible for jury service but because of how they acted in the past are not the type of person we want on a jury.
People who have been imprisoned for 3 months or more in the last 5 years,
or have served at least 3 years in jail in their life, or are on remand,
bail or are an undischarged bankrupt
Juror - Excused
Illness or poor health
Incapacity
Distance (>50km for melbourne, >60km for rural)
Excessive time/inconvenience
Would cause substantial
hardship/financial hardship
Person is a carer and no
alternatives exist
Advanced age
Practising member of a religious order and the beliefs/principles of that order are inconsistent with jury duty
Any other matter of special urgency/importance
Civil Juries
If monetary compensation is being sought, civil juries decide
Who is liable
