classification of law Flashcards
what is public law
The law dealing with relations between the individual (meaning individual people or organizations) and the state (i.e the government)
- criminal law
- administrative law
- constitutional law
what is property law
The law relating to property – this includes the buying and selling of property such as houses.
Property is anything that can be bought and sold and includes land and objects.
what is criminal law
The law dealing with crime.
A crime is any act or omission of duty resulting in harm to society that is punishable by the state – the victim in a criminal case is all of society.
Most crimes are statute and state based – Crimes Act 1900 (NSW)
EXAMPLES: murder, assault, theft, and drunken driving.
what is administrative law
The law relating to the operation of the government and its various departments – ie. if you have a dispute with the government
Generally dealt with by specialist tribunals, e.g. NSW Civil and Administrative Tribunal
Example: Minister of State for Immigration and Ethnic Affairs v Teoh (1995)
what is constitutional law
The law relating to whether the Commonwealth government has the power to do something under the Constitution.
All constitutional cases are heard by the High Court,
Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams Case)
what is private law
The law dealing with relations between individuals (meaning individual people or organisations)
1. contract law
2. tort law
3. property law
what is contract
The law relating to contracts – generally where one party claims that the other party has failed to fulfil the requirements of the contract.
A contract is a legally binding agreement between 2 or more parties.
what is tort law
The law relating to civil wrongs, ie. when the actions of one person causes some type of harm or inconvenience to another person (other than a crime) or breaches their rights
Example: a driver on the road has a duty to drive at a reasonable speed. If a driver travels 20 miles over the speed limit, they have acted negligently. If they hit someone and hurt them, they have committed a negligence tort and likely owe the victim for their losses.
criminal court proceedings
*In criminal court proceedings there is a prosecutor and a defendant (the accused)
*The state (through the prosecutor) brings the case to court.
*The onus is on the prosecutor to prove the case
*The standard of proof in a criminal case is ‘beyond reasonable doubt’
*Criminal cases can either be summary or indictable.
Summary or indictable, proof and verdict
*A person can plead guilty or not guilty.
*The prosecution must prove the case beyond reasonable doubt by providing sufficient evidence to convince the court.
*The jury of 12 people reach a verdict of guilty or not guilty.
*The judge will then impose an appropriate sentence.
*A summary offence is heard by a magistrate in the Local Court, without a jury, less serious offences such as:
speeding.
DUI.
shoplifting.
* An indictable offence is heard in District or Supreme Court, before a judge and a jury such as:
robbery.
assault.
murder.
Three elements in proving criminal offences
- Mens rea – the ‘guilty mind’ = the intention of the accused to commit a crime. In traffic offences, the prosecution does not have to demonstrate mens rea (this is known as strict liability) but in all other matters, they must.
- Actus reus – the ‘criminal act’ and refers to the fact the accused must have committed the offence charged with.
- Causation – means that the prosecution must show that there is a link between the act and the crime.
civil court proceedings
*Civil cases are court actions involving disputes between individuals.
*They Involve a plaintiff and a defendant.
*An individual or organisation can bring the case to court.
*The onus is on the plaintiff to prove the case.
*The standard of proof is ‘on the balance of probabilities’ – more likely than not
Civil trial process
Plaintiff and defendant exchange documents called ‘pleadings’ that set out issues to be decided in court.
Parties can get information by a process of ‘discovery’.
Parties can settle the matter without trial if they agree.
If the plaintiff is successful, the judge can award a remedy e.g. injunction or damages.
Which court hears the case will depend on the monetary amount or the subject matter.
Jury at option of parties, but will be smaller (usually six)
What’s the difference between criminal and civil court proceedings.
legal personnel
There are many legal professionals who play an important role in court proceedings, including:
judge.
magistrate.
judge’s associate
barrister.
prosecutor.
Solicitor.
witness.
court officer.
court reporter.
Judges and Magistrates
Judges and Magistrates preside over the courts.
They are legally qualified professionals (usually barristers) with considerable experience Judges and Magistrates
judges
- sit in intermediate and superior courts.
- decide on points of law, issue instructions to the jury and sentences and rulings.
- sometimes in civil matters, they sit without a jury = they determine the case.
magistrates
*sit in the inferior courts.
*Issues rulings e.g. about evidence.
*role is to determine case - reach a verdict and determine the sentence.
*to ensure that justice is administered fairly and impartially.
Solicitors and Barristers
*Barristers almost always receive their work through a solicitor. They represent the client in court.
*Most specialise in one area of the law:
Tax
Criminal
Family Solicitors and Barristers
They have two main functions:
*provide legal advice, an ‘opinion’, on the legal facts presented to them. Usually indicates likely outcome, which allows the client to decide what course of action is best for them e.g. to settle or to plead guilty.
*present their client’s case in the court.
What is a Judge’s associate?
what is a solicitor
A solicitor is a lawyer who gives legal advice.
what is a Barrister
what is a prosecutor
the state or crown formally conducting legal proceedings against a criminal defendant
what is a court officer
As a Court Officer you will play an important role in the administration of justice. Your duties will be varied and include welcoming jurors and handling enquiries from the public. assisting and instructing jurors from ‘rollcall’ and during the empanelling processes.
what is a court recorder
Court staff member who records the hearing and writes down or types what is being said.
what is a defendant
a person who is accused of a crime or a civil wrong, in a criminal; case, also known as the accused
balance of properties
standard of proof required in a civil case
jury
members of the public who listen to all of the evidence in a court case and decide on the verdict
sanction
a penalty or punishment imposed for breaking the law
damages
a monetary compensation for harm or loss suffered
cross examination
questioning of a witness called by the party who did not call the witness.
public law
the body of law governing relationships between individuals and the state.
onus
burden or duty of providing the case to the court
standard of proof
the level of proof required in order for the party that has the burden of proof to succeed.
beyond reasonable doubt
standard of proof required in a criminal case.
burden of proof
the responsibility of a party to prove a case
plaintiff
a person who initiates a civil action
Exanimation-in-chief
questioning of a witness by the party who called the witness.
