Exam Flashcards
fairness
all people can participate in the justice system and its processes are impartial and non-bias
- Synonyms: participate, processes, impartial, open (scrutiny and transparency
equality
- all people are treated the same or if different adequate measures are taken
- Synonyms: substantive- different treatment, formal- same treatment
Access
- everyone can use the legal system on an informed basis
- Synonyms: despite barriers
effective laws
C - clear and understandable -
A - accessible
K - known
E - enforceable - in theory and practise
R - reflect society values
S - stable
court hierarchy
- High court
- Supreme Court appeals
- Supreme Court trials
- Country court
- Magistrates court
reasons for hierarchy
administrative convenience, specialisation, appeals
types of laws
common (made by courts) statue (made by parliament)
making of statute law
- 1st reading- introduced to lower house
- 2nd reading more in-depth given two week break, debate
- 3rd reading final vote
- Repeated in upper house
- Royal assent- kinds approval by governor
court and parliament
- Parliament is the supreme law maker- they can set laws or change laws made in court
- Courts imply and interpret statute law- court makes descision about the meaning of laws setting precedent
- Abrogation- if parliament does not agree with a precedent they can change and override it. This happens in the case that courts have interpreted statute wrong or that don’t reflect values
- Codification- parliament can conform a precedent set in court by passing an act to reinforce its key principles
- Courts design influences change- lenient sentecncing by court may require a law change to be more strict
purpose of a law
- Establish a code of conduct
- Resolve disputes
- To protect against behaviour that loss harmful, immoral, illegal
elements of crime
Actus reus- the guilty act
Mens red - the guilty mind
Both need to happen simultaneously to prove a crime
doli incappax
a chid is incapable of knowing wrong
types of crime
- Summary offences- minor crimes heard in the magistrates court
- Indictable offences - major crimes heard in county or Supreme Court
crimes against
- A person- causing bodily or psychological harm
- Property - causing damage or destruction of land
strict liability
- Only prove acts reus
- Crimes in high volume- to regulate
- Purpose is deterrence
- Reduce processing time in court
principal vs accessory
Principal: person who
- Committed acts reus
- Assisted in crime
- Directs crime
- Encourages crime
Accessory: person who
- Obstructs investigation
elements of murder
- Committed act causing death
- Voluntary
- A:intended to kill or seriously harm B: knew death or serious injury was probably
- No lawful defence
elements of manslaughter
- Unlawful act
- Dangerous act
- Caused death
theft
- Appropriated property belonging to another
- Intention to permanently deprive
- Dishonesty
robbery
theft + force
burglary
theft + tresspassing
defences
self defence
actions were necessary to protect themselves, the actions were reasonable
mental imparirment
as a result of mental illness one had little understanding of quality and nature of actions, they did not know their conduct was wrong or could not think about it like an ordinary person
duress
belief that a threat or harm existed with would have been carried out if the offence was not committed the action was the only reasonable way to avoid harm and it was a reasonable response
emergency
emergency in which the actions were the only way of dealing with it and they were reasonable
automatism
offence was committed due to a total loss pf control over body and not intention to commit the rime could be formed
accident
actions were involuntary, unintentional or reasonably unforeseeable
intoxication
under influence of drugs/alcohol involuntarily as it was not self induced
being arrested
- Police can arrest you when they - reasonably believe you have broken a law, have a warrant, know you are at risk of hurting your family- They must tell you you are being arrested and you must go with them
being questioned
- They may ask you questions as a witness or suspect
- The will tell you your rights before asking
- You have the right to be silent and not answer
talking to police
- Police can only ask your name and address if you have committed and offence, are about to commit a crime
searching property and person
- If police don’t have a warrant they may ask to search you you can say no and they can’t force you
- Police don’t need a warrant if you have illegal drugs, explosives or weapon or are in a pubic designated area \
- police need a warrant to search your property unless you let them in, they need to make an arrest, someone has breached and intervention order, someone has escaped custody or due to family violence
- To complete a pat down the officer must be the same gender as you and give you a receipt if they take things
- Only a doctor can complete an internal body search
- A strip search can only be done in a private space
Identification parades
purpose of sanctions
- Punish- penalise
- Deter- discourage
- Denounce- convey no toleration
- Protect- ensure community safety by preventing
- Rehab- offer help
types of sanctions
Fines:
- Monetary
- Court considers- financial circumstances, loss/destruction
- Purpose is to deter and punish
Community corrections:
- Remain in community while serving sentence
- Core conditions include- not reoffending, no leaving area, report to coo centre
- Flexible conditions are specific to the offender they may include no drinking, no talking to peeps, going to rehab
- If coo is violated rencentenced
Prison:
- Custody
sentencing factors
Aggravating: make crime worse and sentencing harsher
- Hate crime
- Age
- Repeat offence
- Offence against officer
Mitigating: make crime better and sentencing less
- Co operation
- First offence
- Guilty plea
- Remorse
Victim impact statement
- Letter to court about impact of crime
court jurisdiction
Original
1. High court - constitutional law
2. Supreme TD- murder/man slaughter
3. Cc- indicatable
4. Mg- summary
court appelâtes
- Hc- final appeals
- Sc - appeals from magistrates sa- appeals from country/Supreme Court
- Cc- magistrate appeals
- Mg- none
elements of tort
- Breach: someone has acted irresponsibly/wrong
- Causation: the action caused harm
- A loss has occurred
limitation of actions
- Defamation - 1 year
- Personal injury - 3 years
NEGLIGENCE
duty of care not followed causing harm
Elements:
- Duty of care- risk was forseeable, risk was significant, reasonable person would take precaution
- Breach of duty - what was the likely risk of harm, how serious is the harm, burden of precaution
- Causation of loss - intervening act egg shell skull (take them as you find them)
defences to negligence
Contributory negligence
- How much of it was you fault the percentage determines the winings
Voluntary assumption of risk:
- Accept or agree to risk of activity, only to a certain level
Disprove an element
Limitation of actions
defamation
- Publication - communication at least one person other than the victim
- Identification- directly identified through name, indirectly identifyed through context clues
- Defamatory meaning - it has lower someones reputation, they have been shunned or avoided, they have been exposed to hatred or ridicule
defences to defamtion
- Truth- the statements were factual and objective
- Honest opinion- expression of opinion, relates to a matter of public interest, opinion based off proper material
- Contextual truth- you said a truth which was worse than a lie
- Innocent defamation
arbitration
- Formal adr
- Legally binding
- Expert or retired judge
- Private
steps to mediation
- Set boundaries- outline process and mediators job
- Space + vent
- Identify issues
- Decide order to address issues
- Help explore pathways
damages in court
Magistrates- under 100k with no appeals
County - unlimited no appeals
Supreme - unlimited, appeals from any court
VCAT
Tribunal that deals with civil disputes through mediation
Four divisions: admin, civil, human rights, residential tendencies
Purpose
- Cheap
- Independant
- Variety of location
- Informal
CAV
Monitors and regulates consumer affairs through conciliation over the phone
Purpose
- Inform consumers and businesses of rights
- Provide a dispute process
- Settle disputes
- Cheap
- Help seek compensation
civil vs criminal jury
Civil
- 6 jurors
- No right to jury
- Must be paid for
- Liability and damages
Criminal
- 12 jurors
- Random selected
- Decide verdict
- Majority
- Impartial
- Right paid by gov
damage types
Compensatory
- Specific: quantifiable
- General: estimate of harm
- Aggravated: humiliation and insult
Nominal: small amount when rights harmed but little loss
Exemplary: punish defendant
Contemptuous: legal right but no moral right: waste court recourses and time
injunctions
Direct someone to do something or to stop
Types
Restrictive- stop someone from doing something
Mandatory- make someone do something
Interlocutory - temporary
Final- permanent
