Civil Law and court hierarchy

Question 1

Distinguish between Criminal and Civil Law

Answer 1

Criminal Law is protecting the rights of community members while protecting the interests of society, whereas Civil Law is the protection of the private rights of an individual

Question 2

Define the adversary system of trial

Answer 2

The court system and the way trials run in Australia

Question 3

What is the role of the jury?

Answer 3

System of a jury is based on the idea that all individuals in the community are responsible for the administration of justice.
• A jury is only used if the accused pleads not guilty
• Jury must listen carefully to all evidence and determine if guilty or not guilty

Question 4

Provide 3 reasons why you may NOT have to serve on a jury

Answer 4

• You’re a lawyer or a police officer
• Have a criminal record
• You’re too old and won’t get paid for jury duty

Question 5

Positives on the Jury system

Answer 5

• Impartial and unbiased decision making
• Ensures community involvement
• Shared decision making

Question 6

Negatives on the jury system

Answer 6

• Having a jury extends a trial period

* Members of the jury may not understand all facts of the case

Question 7

Identify and outline Four Key features of the adversary system

Answer 7

1. Role of the parties
2. Role of legal representation
3. Strict rules on evidence and procedure
4. Role of the judge

Question 8

Role of the parties

Answer 8

prosecution and the defence are responsible for presenting their case

Question 9

Role of legal representation

Answer 9

Parties may be represented by lawyers in court

Question 10

Strict rules of evidence and procedure

Answer 10

Must follow strict rules of evidence and procedure

Question 11

Role of the judge

Answer 11

judge acts as an impartial adjudicator

Question 12

Positives of the adversary system

Answer 12

• Provides for a fair and unbiased hearing
• Community confidence
• Protects rights

Question 13

Negatives of the adversary system

Answer 13

• State is more powerful than the individual
• The reliance on oral evidence
• Party control means that not all evidence may be disclosed

Question 14

Define Tort

Answer 14

A tort is a civil wrong, allows the individual who has suffered to take legal action

Question 15

Define Defamation

Answer 15

A written or oral statement that injures a persons good reputation

Question 16

Explain all three elements to prove a defamation case

Question 17

Element 1; The statement was defamatory, and the defendant communicated the defamatory statement to a third person

Answer 17

• A defamatory statement is a statement that is untrue and lowers an individuals reputation in the eyes of the community
• It is not necessary to show that the defendant intended to damage the plaintiff’s reputation

Question 18

Element 2; The defamatory statement refers to the plaintiff

Answer 18

• A statement will be considered defamatory if others can identify the person about whom the statement is made
• A defamatory statement does not have to name the plaintiff

Question 19

Element 3; The person suffers damage in some way as a result of the defamatory statement

Answer 19

• It is irrelevant if the defendant intended the damage to occur
• Damage can also occur as a result of implied meaning - it doesn’t necessarily have to be explicitly stated

Question 20

Define negligence

Answer 20

A person should take reasonable care to ensure that their actions do not cause harm to others

Question 21

Explain all three elements to prove a negligence case

Question 22

Element 1; The plaintiff was a ‘neighbour’ of the defendant and was thus owed a duty of care by the defendant

Answer 22

• This means that the plaintiff does not have proof that the defendant actually knew their act would lead to the exact injury that occurred
• The plaintiff must only prove that it was reasonable for the defendant to expect some form of injury to occur after their act

Question 23

Element 2; The defendant was careless and breached that duty of care

Answer 23

A duty of care will have been breached if the defendant fails to act as a reasonable person would have, in the same situation

Question 24

Element 3; The defendant’s carelessness caused the plaintiff damage or injury

Answer 24

This damage or injury could be physical, such as a broken arm; mental harm, such as depression; or financial harm, such as the inability to work for a living

Question 25

Define precedent

Answer 25

Means an example serving for the future
• When something is done for the first time, it sets an example to be followed
(example; When your brother turned 18 he got a new car and a big party, you’re 18 soon and expect the same thing)

Question 26

Distinguish between the Role of the judge and Legal representation

Answer 26

A judge acts as an impartial adjudicator whereas, legal representation is when parties may be represented by lawyers in court