Exam cue cards Flashcards
The principles of justice
- Fairness
- Equality
- Access
The principles of justice: Fairness
- Everyone has the right to a lawful hearing and procedural fairness.
- Hearings and trials should be impartial and without favouritism.
- Fairness does not always mean everyone is treated equally.
Examples: right to remain silent, presumption of innocence, impartial judge
The principles of justice: Equality
- People should be equal before the law with an equal opportunity to present their case.
- People should be treated equally without discrimination
- No person should be at an advantage or disadvantage because of a personal characteristic
Examples: Legal aid, interpreters, anti-discrimination laws
The principles of justice: Access
- The legal system or organisations that offer legal information or assistance must be available and accessible to all members of the community.
- It involves knowing one’s rights.
- All citizens must be able to afford access to the legal system so that they can pursue their case.
- People must be aware of their right to take a dispute to a resolution body, and have access
Examples: The use of tribunal, right of appeal, court hierarchy
Characteristics of effective law
- Known to the public
- Enforceable
- Stable
- Clear and understood
- Reflect society’s values
Characteristics of effective law: Known to the public
- Lawmakers need to keep the public informed so individuals know how to follow it.
- Individuals bear the responsibility of knowing the law, and ignorance of the law is not an excuse.
- New laws are usually reported in the media, broadcasted on television etc.
Characteristics of effective law: Enforceable
- If the law cannot be enforced then people will not be inclined to follow it.
- If individuals break the law, they must be punished, made to follow the law or made to pay for any damage caused by disobeying the law.
- The law in Australia is enforced by the courts, various governmental bodies and the police.
Characteristics of effective law: Stable
- If the law changes constantly there would be uncertainty and therefore chaos.
- Members of the community need to be confident that the law can be relied upon.
- Law making bodies should try to predict changes to the law that may occur in the future
Characteristics of effective law: Clear and understood
- People need to understand the law and its intent.
- Any words or terms in legislation that are unclear may need to be interpreted by courts.
- Law makers must create laws that cover all circumstances while being understandable.
Characteristics of effective law: Reflect society’s values
- Our laws should identify and reinforce the social, moral, economic, religious and political values of the community.
- When making or changing the law, law makers need to ensure that the law reflects the values of a majority of the community, not of minority groups of society.
Source of law
- Statute law
- Common law
Source of law: Statute law
A written law made by the state and commonwealth parliaments through the legislative process of passing a bill through both houses
AKA legislation or acts
Source of law: Common law
Law made by the courts
A court’s primary responsibility is adjudicate disputes.
As a secondary role, they may need to make law.
AKA judgements
Development of statute law
- A bill is a proposed law drafted by the parliamentary council which goes through parliament
- Every single proposed law in Parliament goes through 3 readings where the law is discussed and analysed in Parliament.
Development of common law
- When there is no legislation in place and the court needs to hand down a decision
- When the legislation is ambiguous and the court needs to interpret it and apply it. This interpretation creates law (precedent). This is called statutory interpretation.
Binding precedent
- Made by a superior court and must be followed by lower courts in the same hierarchy where the facts of the case are similar.
- The reason for the decision in a case is the binding part of precedent.
- This is known as the Ratio decidendi.
Persuasive precedent
- Influential but not binding.
- Courts may choose to follow it but they do not have to follow it.
- Obiter Dictum are statements made by judges along the way that form persuasive precedent
- Courts lower in the hierarchy, and courts in other jurisdictions.
Avoiding previous precedent
- Distinguishing
- Overruling
- Reversing
- Disapproving
Distinguishing a previous precedent
- If the material facts of a case are sufficiently different from the material facts in a binding precedent
- A lower court distinguishes the facts of the case and then they do not follow that case
- They usually set a new precedent.
Overruling a previous precedent
- A precedent can be overruled by a higher court in a different case.
- When a precedent is overruled it no longer applies.
- 2 separate cases - no appeal.
- Superior court changes existing precedent.
Reversing a previous precedent
- A precedent can be reversed when the same case is taken to a higher court on appeals.
- When a precedent is reversed it no longer applies.
Disapproving a previous precedent
- Courts of equal standing can disapprove
- Lower courts will follow the binding precedent.
- Lower courts can also disapprove
- Persuasive precedent is created but they still must follow the binding precedent.
- A higher court when deciding a later case may choose to agree with the court that disapproved of the precedent and decide to overrule it.
Relationship between parliament and the courts
- Parliament passes a law and the courts must apply it.
- Statutory interpretation
- Abrogating
- Codifying
- Courts influencing parliament to change the law
Statutory interpretation
- The process by which courts interpret and apply the words in legislation made by parliament.
- In the judgement, the judge will reference the Act, but give reasons for their interpretation of the legislation
- Creates a precedent in common law.
Abrogating the law
- Parliament can abolish precedent if it is outdated or incorrect.
- Parliament may decide to abrogate a common law for various reasons:
- A court’s interpretation of an act may be incorrect as it does not reflect the intentions of parliament.
- Courts may also develop a precedent that parliament does not agree with.
Codifying
- Parliament can take a precedent set by the court and enact it into legislation.
Courts influencing parliament to change the law
- The courts can do this through the judge’s comments - obiter dictum
- Judges think that their role is to enforce the law
- Judges often believe that parliament is in a better position to change the law as parliament can carry out investigations and ask the community about how they feel in relation to changes in the law.
Criminal law: Parties involved
Prosecution/accused
Criminal law: Action initiated by
Prosecution (on society’s behalf)
Criminal law: Aim of action
To protect society/punish the accused
Criminal law: Role of jury
For indictable (serious) offences with not guilty pleas, 12 jurors used
Criminal law: Burden of proof (who needs to prove it)
On the prosecution
Criminal law: Standard of proof (to what extend does it need to be proven)
Beyond reasonable doubt. A unanimous verdict (12/12) in homicide cases is required. In other cases, a majority verdict of (11/1) is accepted.
Criminal law: Finding
Guilty/not guilty; or no decision (hung jury)
Criminal law: Outcomes
Include imprisonment, fine.
Civil law: Parties involved
Plaintiff/defendant
Civil law: Action initiated by
Plaintiff (aggrieved party)
Civil law: Aim of action
To redress any losses incurred
Civil law: Role of jury
Only when requested by either party, jury of 6 used
Proven or not proven
Decide of damages
Civil law: Burden of proof (who needs to prove it)
On the plaintiff
Civil law: Standard of proof (to what extent does it need to be proven)
On the balance of probabilities. A majority verdict (⅚) is sufficient where unanimous verdict is not reached.
Civil law: Finding
Find for the plaintiff, find for the defendant, or hung jury (the latter is rare)
Civil law: Outcomes
Include damages, injunction (court order to stop somebody from doing something)
What is a court hierarchy?
- The courts are arranged in a hierarchy.
- This is a ranking of courts based on the severity or complexity of cases they can hear.
- Each court has its own jurisdiction (power/responsibility) to hear cases.
The court hierarchy
- High court
- Federal (not victorian)
- Appeals from the court of appeal from every state - Supreme court - Court of Appeal
- Hear cases that are asked to be reviewed
- Appeals from county/supreme - Supreme court - Trial division
- Murder
- Appeals from magistrates court on point of law - Country court
- All indictable/serious offences except homicide
- Appeals from magistrates court on conviction - Magistrates court
- Summary offences (minor)
- No appeal as it is the lowest court
Reasons for a court hierarchy
- Specialisation
- Appeals
- Doctrine of precedent
- Administrative convenience
Specialisation
- A court hierarchy allows each court to develop the skills, experience and processes to deal with specific types of disputes.
- The judge or magistrates in each court can develop a specialised understanding of the law with respect to the types of cases that are determined in that particular court.
- Skills
Appeals
- People who believe that they have grounds for an appeal have the opportunity to have their case heard again in a superior court by a judge with specialist knowledge and expertise.
- If there were no higher courts, there could be no system of appeals which could create unfairness if a court incorrectly determined a case.
- Reviews
Doctrine of precedent
- Precedent operates through the ranking of courts as decisions ratio decidendi of superior courts are binding on the lower courts within the same hierarchy.
- This system provides consistency and predictability.
Administrative convenience
- Allows smaller and minor cases to be heard in the magistrates court.
- This saves time and money, while the more complicated cases go to the County and Supreme courts.
- This allows for efficiency in the legal system.
Purposes of criminal law
- Protect individuals
- Protect property
- Protect society
- Promote justice
Purposes of criminal law: Protect individuals
- Establishes crimes and processes to deal with people who commit these crimes.
Purposes of criminal law: Protect property
- Criminal law aims to protect privately owned and public property.
Purposes of criminal law: Protect society
- Sets standards and makes it clear what behaviour is not tolerated by the community and the legal system. This helps to maintain public order and community safety.
Purposes of criminal law: Promote justice
- Provides processes to deal with offenders and to enforce the law.
- Helps prevent victims of a crime and their family and friends, from taking the law into their own hands and imposing their own punishment on an offender
Presumption of Innocence
- A key concept in our criminal justice system.
- The accused is innocent until proven guilty
Elements of a crime
Actus reus Mens rea Strict liability Age of criminal responsibility Burden of proof Standard of proof
Elements of a crime: Actus reus
- Guilty act
- The physical act of committing the crime.
Elements of a crime: Mens rea
- Guilty mind
- The intention to commit the crime
Elements of a crime: Strict liability
- Does not require the prosecution to prove “mens rea”.
- It is enough that the action took place for a crime to have taken place.
- Only the actus reus needs to exist
E.g. drink driving
Elements of a crime: Age of criminal responsibility
- < 10 cannot be charged with a crime.
- 10-13 years and charged with a crime the prosecution must prove that the child knew that their actions were wrong.
- The principle of doli (child) incapax (no capacity)
- Depends on the child’s upbringing, psychological issues, remorse and prospects of rehabilitation.
- > 14 are criminally liable for their actions.
Elements of a crime: Burden of proof
- The responsibility that the party has to prove/establish the facts of the case
- In a criminal case, the burden of proof lies with the prosecution.
Elements of a crime: Standard of proof
- It is the extent to which the allegations need to be proven in the case.
- In a criminal case the prosecution must prove the case beyond reasonable doubt
Summary offences
- Minor crimes
- Generally heard in the Magistrates’ court
- The final hearing, at which both parties will put their case before the court, is known as a hearing
- A magistrate will determine whether the person charged with a crime is guilty
Indictable offences
- These are serious crimes
- Tried in the County Court or Supreme Court
- The final hearing, at which both parties will put their case before the court, is known as a trial
- When an accused pleads not guilty, the court will select a jury of 12 people from the community
- The jury will determine whether or not the person charged with a crime is guilty
Indictable offences heard summarily
- These are serious crimes that may be heard summarily (without a jury)
- Heard in the Magistrates’ Court if the court determines it is appropriate and the accused agrees.
- A magistrate will determine whether or not the person charged with a crime is guilty.
Participants in a crime
- Principal offender
- Accessory to a crime
Principal offender
- The person who commits an offence, being the person who has committed actus reus and has mens rea.
- A person who is involved in a crime is also a principal offender if they intentionally assisted, encouraged or directed another person to commit a crime.
Accessory to a crime
- A person who, without a lawful excuse, knowingly assists another person who has committed an indictable offence, to evade arrest, prosecution or conviction.
- An accessory can be found guilty regardless of the offender being found guilty or not.
Elements of murder
- Killing was unlawful
- Victim was a human being
- Accused was a person over the age of discretion
- Accused caused the victim’s death
- Accused was a person of sound mind
- Malice aforethought
Elements of murder: Killing was unlawful
- The accused did not have a lawful reason for causing the other person’s death
Elements of murder: The accused was a person over the age of discretion
- The accused must be at least 10 years old
Elements of murder: The accused was a person of sound mind
- The accused must be able to know right from wrong and understand the nature of what they have done
Elements of murder: There was malice aforethought
- The accused must have had an intention to cause serious harm
Defences to murder
- Self-defence
- Mental impairment
- Duress
- Sudden or extraordinary emergency
- Intoxication
- Automatism
- Accident
- One or more of the elements required was not proven beyond reasonable doubt by the prosecution
Defences to murder: Self-defence
- At the time of the offending, the accused believed that their actions were necessary to protect or defend themselves or another person from death or serious injury.
Defences to murder: Mental impairment
- At the time of the offending, the accused was suffering from a mental illness and therefore did not know what they were doing was wrong because they had little understanding of the nature and quality of their actions
Defences to murder: Duress
- At the time of the offending, the accused believed that there was a threat of harm and that threat would be carried out if they did not commit the offence.
- The accused believed that committing the offence was the only reasonable response to the threat.
Defences to murder: Sudden or extraordinary emergency
- At the time of the offending, the accused had a reasonable belief that there was a sudden and extraordinary emergency and committing the offence was the only reasonable way to deal with the emergency.
Defences to murder: Intoxication
- At the time of the offending, the accused acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking drugs or ingesting some other substance; the intoxication must not have been self-induced.
Defences to murder: Automatism
- The accused’s actions were involuntary as they had a loss of control over their bodily movements and could not form intention.
Defences to murder: Accident
- The accused’s actions were unintentional or reasonably unforeseen.
Impact of murder: Victim and their family
- Loss of life
- Disruption to family life
- Trauma, grief and loss, and related medical issues (both in the immediate and longer term)
- Funeral costs
- Loss of household income
- Loss of trust in law and order, and community values
Impact of murder: Community
- Cost of publicly funded medical treatment (if death was not immediate)
- Need for coronial services
- Increased need for police, fire and emergency services
- Trauma to emergency services workers to responding to incident
- Loss of workplace productivity
- Potential loss of confidence in the legal system and community values
Impact of murder: Offender
- Guilt or shame in causing a death
- Legal costs
- Custodial sentence
- Loss of household income if the offender is imprisoned
- Diminishment of the family’s social standing and wellbeing
- Negative influences as a result of exposure to prison
Purposes of civil law
- Achieves social cohesion
- Protects the rights of individuals
- Provides an avenue for people to seek compensation
- Provide a means to seek compensation
Purposes of civil law: Achieves social cohesion
- Provides guidelines for acceptable behaviour, so that people can live together in harmony.
- Without the guidelines, individuals might exploit or abuse the rights of others.
Purposes of civil law: Protects the rights of individuals
- Key rights are enshrined in civil law
Purposes of civil law: Provides an avenue for people to seek compensation
- Individuals can seek compensation for a breach of civil law through dispute resolution bodies
- Without this there would be no specialised bodies available to help people resolve their disputes
- Leading to disagreement within community - social cohesion impacted
Purposes of civil law: Provide a means to seek compensation
- Provides a way to return the harmed person, as far as possible, to the position they were in before the harm occurred when a person’s rights have been infringed.
- Achieved through the awarding of civil remedies.
- The most common civil remedy is damages, an amount of money paid as compensation for the loss the plaintiff suffered.
Types of civil law
- Negligence
- Trespass
- Defamation
- Nuisance
- Wills and inheritance laws
- Contract law
- Family law
- Employment laws
- Equal opportunity and discrimination laws
Key concepts of civil law
- Breach
- Causation
- Loss
- Limitation of actions
- Burden of proof
- Standard of proof
Key concepts of civil law: Breach
- A breach occurs when a person fails to observe a law or obligation imposed on him or her
Key concepts of civil law: Causation
- The plaintiff must prove that the actions of the defendant caused the harm they suffered/the harm only occurred because of the defendant’s actions
- If harm is too remote, it is unlikely to prove causation
- There can be a break in the chain of causation
Key concepts of civil law: Loss
- A plaintiff will only be able to obtain a legal remedy (e.g. damages) if it can be proved that they suffered loss or harm Loss or harm can include: - Economic or financial loss - Property damage - Personal injury - Pain and suffering - Loss of amenity
Key concepts of civil law: Limitation of actions
- A time frame in which the wronged party must sue the defendant
- Ensures cases are heard swiftly and that the evidence is credible
- Claims involving sexual abuse as a minor, do not have a time limit.
Key concepts of civil law: Burden of proof
- The responsibility is on the plaintiff to prove the facts of the case, and to prove that the defendant is in the wrong.
- A defendant may need to also prove facts if they choose to raise a counterclaim.
Key concepts of civil law: Standard of proof
- The extent to which a case must be proven.
- The plaintiff must prove the case on the balance of probabilities
Plaintiffs to a civil dispute
- Aggrieved party
- Other parties
- Insurers
Plaintiffs to a civil dispute : Aggrieved party
- Rights have been infringed and suffered the loss
- May be more than one aggrieved person
- A representative proceeding is a class action or group proceeding, where 7 + people have claims against the same party that arise out of the same type of circumstances
Plaintiffs to a civil dispute : Other parties
- A person who has indirectly suffered loss or damage as a result of the actions of another party
- A person who was close to an event may suffer loss and damage as a result.
Plaintiffs to a civil dispute : Insurers
- Insured - Individuals or companies that enter into an insurance policy with a person
- Insurer - Agrees to provide insurance in certain circumstances under the insurance policy
- Right to subrogation - Under the insurance policy, the insurer pays the insured for the damage caused by another. Then the insurer is entitled to recover what they paid the insured from the defendant who caused the loss against the person.
Defendants to a civil dispute
- The wrongdoer
- Persons involved in the wrongdoing
- Employers
- Insurers
Defendants to a civil dispute: The wrongdoer
- The person or company that has directly caused them loss or damage
- There may be 2 wrongdoers liable for the loss or damage suffered by the plaintiff.
Defendants to a civil dispute: Employers
- An employer can be liable for the actions of an employee.
- Vicarious liability - when someone becomes liable for the actions of another
- An employer is responsible for the actions of their employee
- Plaintiff must prove that the wrongdoing occurred during the course of their work/employment
Defendants to a civil dispute: Persons involved in the wrongdoing
- Aided, abetted (encouraged) or procured (organised) the wrongdoing
- Induced or encouraged the wrongdoing
- Directly or indirectly a party to the wrongdoing
- Conspired with others to cause the wrongdoing
- Known as accessorial liability
Defendants to a civil dispute: Insurers
- The insurer of the person who has caused loss or damage
- The plaintiff can also sue their own insurer if the insurer refuse to cover the loss or damages caused by another
Tort
A civil wrong that one person commits against another
Tort of negligence: The rights protected by the law
- Right to be protected from wrongful conduct by others
- Right to seek compensation
- Elements required to establish liability
Tort of negligence: Elements required to establish liability
- Duty of care
- Breach of a duty of care
- Causation
- Injury, loss or damage
- Limitation of actions
- Calculation of limitation periods
Negligence elements: Causation
- The plaintiff must prove that their injury or loss was caused by the breach of duty of care
- The harm could be shown to be too remote
- There may be a break in the chain of causation
Negligence elements: Injury, loss or damage
- The plaintiff needs to prove that they suffered an injury, loss or damage, even if it is minor
Negligence elements: Limitation of actions
- Limitation of actions is the restriction placed on the time within which a civil action can be commenced.
- General negligence claims - 6 years
- Negligence claims where personal injury occurs - 3 years
- No limitation for sexual assault of minors
Negligence elements: Calculation of limitation periods
- General negligence claims start on the date on which the cause of action occurred
- Personal injury negligence claims starts on the date on which the plaintiff first knew they had the disease/disorder
Strengths/reasons for limitations
- Protects individuals from being accused of an act/omission from many years past.
- Ensures the dispute is resolved efficiently.
- The reliability and credibility of evidence
Negligence defences:
- The plaintiff has not established the elements of negligence
- Contributory negligence
- Assumption of risk
Negligence defences: Contributory negligence
- The plaintiff helped to cause the harmful situation
- Generally reduces the damages that the defendant has to pay
Negligence defences: Assumption of risk
- Volenti non fit injuria
- The voluntary acceptance of risk of injury
- It must proven that the plaintiff was aware of an obvious risk and still chose to take the risk
Negligence impact: Plaintiff
- Loss of life
- Permanent physical incapacity
- Serious physical injury
- Emotional impact of the breach
- Loss of wages and livelihood
- Unemployment
- Effect on mental health
Negligence impact: Defendant
- Loss of business
- Public humiliation
- Physical injury
- May need to pay costs
- May need to sell assets
Tort of defamation: The rights protected by the law
- Right to freedom of expression
- Right to a character and reputation
- Right to protection of reputation through limits on freedom of expression
- Right to seek effective and fair remedies
- Right to a quick and effective method of resolving a dispute
Tort of defamation: Elements required to establish liability
- The statement is defamatory
- The statement is untrue
- The defamatory statement refers to the plaintiff
- The defendant published the defamatory statement
- The limitation of actions
Defamation elements: The statement is defamatory
- The plaintiff must establish that the statement is defamatory if it lowers a person’s reputation or standing in the community, exposing them to ridicule, contempt or hatred.
Defamation elements: The statement is untrue
- The plaintiff must prove that the defamatory statement is untrue.
- A plaintiff cannot be defamed if the statement is substantially true.
Defamation elements: The defamatory statement refers to the plaintiff
- The plaintiff must establish that they were the person referred to in the statement.
- The name of the person defamed does not need to be mentioned however it would be sufficient proof that people reading, hearing or seeing the statement would reasonably conclude it was about the plaintiff.
Defamation elements: The defendant published the defamatory statement
- The plaintiff must prove that the statement was communicated to a 3rd party other than the plaintiff.
- It is not defamation if the untrue or derogatory comments are made directly to the person concerned if done in private.
Defamation elements: The limitation of actions
- An action for defamation must be brought within one year from the date of the publication of the matter
- A person may apply for an extension up to a period of 3 years
Defamation defences
- Justification
- Contextual truth
- Absolute privilege
- Publication of public documents
- Fair report of proceedings of public concern
- Qualified privilege
- Honest opinion
- Innocent dissemination
- Triviality
Defamation defences: Justification
- When a defamatory statement is substantially true
Defamation defences: Contextual truth
- When a number of defamatory statements are made within the same context of statements that are substantially true
Defamation defences: Absolute privilege
- Used in parliamentary proceedings which gives a defendant complete immunity from being sued
Defamation defences: Publication of public documents
- It is in the interests of the public to have this information.
Defamation defences: Fair report of proceedings of public concern
- Allowing the public to know information that has been published.
Defamation defences: Qualified privilege
- A privilege held by professionals
Defamation defences: Honest opinion
- An expression of an opinion not a statement of fact
Defamation defences: Innocent dissemination
- Someone may be in possession of defamatory material without the knowledge of it having defamatory content and publicising it.
Defamation defences: Triviality
- Did not have a big impact on the plaintiff’s reputation
Defamation impact: Plaintiff
- Loss of reputation
- Emotional impact of the defamatory material
- Loss of wages and livelihood
- Unemployment
Defamation impact: Defendant
- Costs
- Need to sell assets
- Public humiliation
How is the presumption of innocence protected?
- The burden of proof
- The standard of proof
- Reasonable belief
- Bail
- The right to legal representation
- The right to silence
- Previous convictions
- Right to appeal
Protection of presumption of innocence: The burden of proof
- The prosecution must present evidence to the court to prove the guilt of the accused rather than the accused being required to prove their innocence.
Protection of presumption of innocence: The standard of proof
- The prosecution is required to present sufficient evidence to the court to prove that the accused is guilty beyond reasonable doubt.
- This is a high standard of proof compared to that in civil disputes, where the plaintiff is only required to prove that the defendant most likely breached their rights.
Protection of presumption of innocence: Reasonable belief
- Police officers are required to have reasonable belief that a person has committed a crime before arresting them.
Protection of presumption of innocence: Bail
- A person who has been arrested and charged has the right to apply for bail, unless there is a good reason they should be denied their freedom and be held in custody while waiting for their court hearing.
Protection of presumption of innocence: The right to legal representation
- An accused has the right to legal representation in court.
Protection of presumption of innocence: The right to silence
- An accused does not need to answer any questions and is not required to give evidence in court and this ‘silence’ is not interpreted as a sign of their guilt
Protection of presumption of innocence: Previous conviction
- The accused previous convictions cannot be revealed in court until the sentencing process begins
Protection of presumption of innocence: Right to appeal
- A person who has been convicted or found guilty of a crime has the right to appeal a wrongful conviction.
