Doctrine of Precedent & Court Hierarchy - Lec 3

Question 1

Instrumental/Utilitarian

Answer 1

Future-oriented policies, practices evaluated by their consequences (crime prevention, treatment and crime reduction).

Question 2

Symbolic/non-utilitarian

Answer 2

Backward-oriented, moral principles (policies and practices to reinforce collective understanding of right and wrong).

Question 3

4 elements to found criminal liability (under our statute law, WA)

Answer 3

• Legal capacity to commit a criminal offence.
• Presence of ACTUS REUS (criminal act).
• Presence of MENS REA (criminal mind).
• Absence of a defence (e.g. provocation (self-defence), duress, emergency, etc).

Question 4

Legal capacity

Answer 4

Can a person form/have the ability to commit a criminal offence.

Question 5

Actus Reus - the guilty act

Answer 5

Traditional assumption - person not held guilty for an act, unless done with a guilty mind.
It identifies the conduct the criminal law prohibits; also called the physical element of the crime.
Can be an act/failure to act (omission).
Actus reus sometimes may be neither an act nor an omission– so-called situational offence (e.g. pub license where underage drinking occurs).

Question 6

Actues Reus - voluntariness

Answer 6

Actus reus must be voluntary (conscious or willed); however, actus reus doesn’t require the person to understand the consequences of their act.
What about acts under duress of threats? These are still regarded as voluntary – but duress can be introduced as a defence.
Who has to prove that the act was involuntary? Prosecution (State) entitled to presume acts were voluntary so defendant has to introduce evidence that act was involuntary; once defence has introduced credible evidence, prosecution must then prove voluntariness beyond reasonable doubt.

Question 7

Mens rea - ‘guilty mind’

Answer 7

Usually subjective: defendant must intend, or be reckless to (aware of risk but carried on regardless), the consequences of their act.

Can however be objective: negligence – acting without the care a reasonable person would exercise (used in some driving offences).

Strict liability

Absolute liability

Question 8

Subjectivity of mens rea

Answer 8

Intention

Must be intention be premeditated?

Recklessness

Is intention the same as recklessness? As negligence?

Social purpose or social utility – e.g. medical practice.

Wilful blindness – a matter of evidence, not a category in itself

Transferred malice – e.g. aiming at one person but shooting another

Question 9

Objectivity of Mens rea

Answer 9

Negligence – acting without the care a reasonable person would exercise (used in some driving offences)

Strict liability: once you have committed the act, you’re guilty unless there is an honest and reasonable mistake of fact.

However, courts are reluctant to interpret laws as imposing strict criminal liability.

Absolute liability: once you have committed the act, you are guilty regardless of mental state, including mistake of fact – example is exceeding the speeding limit (alothough there may still be defences).

Question 10

Strict liability offences

Answer 10

These offences lack the mens rea element - the presumption of men’s rea is displaced (by law).
E.g. illicit drug importation cases (where it is more difficult to prove the accused knew about the presence of illicit drugs

Parliament intends to penalise importation that is careless.

Question 11

Absolute liability offences

Answer 11

These offences require only the preparation of the actus reus, and exclude the defence of honest and reasonable mistake of fact.

E.g. exceeding the speed limit, refusing to submit a breath analysis and selling alcohol to underage persons.

Question 12

Stare Decisis

Answer 12

‘let the decision stand’ - is the doctrine of the precedent.
means that ‘like cases are decided alike.
Where a court has decided a case in a partic. Way, subsequent cases involving similar facts should be decided in the same way.

Question 13

In each decision, courts:

Answer 13

Resolve the dispute before them.
Can lay down a principle of law to be applied in future cases.
Courts therefore do NOT prevent disputes, but resolve them – only an indirect, prospective effect.

Question 14

Doctrine of precedent

Answer 14

the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts.
The doctrine of precedent determines the relative weight to be accorded to the different cases.
The doctrine of precedent applies to both cases laying down common law/judge-made rules of law, AND to cases interpreting statues.

Question 15

General rules of Doctrine of precedent

Answer 15

Each court is bound by decisions of courts higher in the same hierarchy.

Decisions of courts in a different hierarchy (including overseas courts), or lower in the same hierarchy are persuasive only: NOT binding.

Courts are generally NOT bound by their own decisions but will only depart them with reluctance.

Only the reason for a decision (the ratio decidendi - ‘reason for deciding’) is binding.

Other statements in a case (Obiter dicta - ‘passing remarks’) aren’t binding, but only persuasive.

Precedents don’t lose their force by lapse of time.

Question 16

Different meanings of ‘jurisdiction’

Answer 16

Geographical area
Subject Matter - specialisation
Stage of Case - courts may exercise original jurisdiction (first instance), and appellate jurisdiction.

Question 17

Persuasiveness of a decision depends on:

Answer 17

Superiority of the court
Applicable jurisdiction
Similarity of law

Question 18

Magistrates court

Answer 18

Lowest court
Criminal division – resolves only the less serious criminal matters (appeal to single justice of the Supreme Court).

Civil division – hears civil claims of a simple nature; damages claims limited to a set amount (appeal to the District Court)
Magistrates Courts provide a number of rehabilitative streams where treatment programs are facilitated to assist in breaking the cycle of offending.

These specialist courts allow offenders to gain access to treatment and support services and programs and look to reduce their rates of return to the justice system’.

Question 19

District Court

Answer 19

(Intermediate court)
Criminal: ‘The court deals with all serious criminal offences. The only serious offences it cannot hear are those for which the maximum term of imprisonment that can be imported is imprisonment for life – most cases have a jury’

Civil: ‘In its civil jurisdiction, the court deals with commercial and debt recovery matters involving claims up to $750,000. It has unlimited jurisdiction in claims for damages for personal injuries and it has exclusive jurisdiction in regard to claims for damages for injury sustained in motor vehicle accidents.’

Question 20

Supreme Court (of WA)

Answer 20

(Superior Court)
2 divisions:
- general division
- appeals division (court of appeal)
General division
Criminal: ‘very serious criminal charges, such as murder, armed robbery, arson and serious breaches of Commonwealth drug enforcement laws.’

Civil: Civil claims of over $750,000; equitable claims or relief; probate. Admiralty; dispute elections’ applications under the federal Corporations Act.
The General Division deals with only the most serious offences such as homicide and related offences, and serious breaches of Commonwealth drug enforcement laws. Judges generally preside over jury trials, where a jury of 12 members of the community decide if an individual is guilty or not guilty of a criminal charge.

The Court of Appeal hears appeals from decisions of a single Judge of the Supreme Court and from Judges of the District Court as well as various other courts and tribunals. The Court of Appeal also hears criminal appeals against sentences, such as the length of imprisonment, and appeals against conviction.
Court of Appeal hears appeals from a single Justice of the Supreme Court, matters from the District Court, and some statutory tribunal decisions.

Appeals to go to High Court.

Question 21

High Court of Australia

Answer 21

Highest court of both State and Federal hierarchies.

Has original and appellate jurisdiction.

Original jurisdiction: e.g. as Court of Disputed Returns of elections (s 44(i) dual citizenship cases; no allegiance to another country).

Appellate jurisdiction: must obtain ‘special leave’ - only those cases that have particular legal or social significance (e.g. conflict between courts) - appeals come from superior courts (e.g. the Full Federal Cout, WA Supreme Cout, s 73)