exam revision

Question 1

how does criminal law provide for social cohesion?

Answer 1

by not allowing rule breaking of rules that harm businesses, society ect

Question 2

how does civil law provide for social cohesion?

Answer 2

by not allowing rule breaking of rules that harm individuals.

Question 3

principles of justice

Answer 3

fairness: fair to people
equality: everyones equal
access: being able to go where you want in public, do what you want to do by reasonable standards

Question 4

how does criminal law show fairness

Answer 4

innocent until proven guilty, defence gets lawyers (legal aid), forensic evidence only used for serious crimes, translators for those who don’t speak english

Question 5

what are the characteristics of an effective law?

Answer 5

reflects society’s values; enforceable; known; clear: understood; and stable

Question 6

common law

Answer 6

made by courts

Question 7

statute law

Answer 7

made by parliament

Question 8

parliament affect the courts

Answer 8

parliamentary supremacy
establishing the courts
statutory interpretation= courts interpret law for their context.

Question 9

courts affect parliament

Answer 9

comments
high profile cases
codification= common law becomes statute.
abrogation= parliament decides common law is not useful so they make it invalid.
invalidation of statute law= deciding the division of law making powers between states and commonwealth parliament. states do state stuff commonwealth does whole country and outside stuff

Question 10

criminal law purpose

Answer 10

protect society from harm and punish those who offend against our basic values by harming or threatening to harm another

Question 11

civil law purpose

Answer 11

to provide individuals and organisations the right to seek a remedy if someone else harms their individual rights.

Question 12

civil and criminal similarities and differences

Answer 12

similarities: protect society, actions can be criminal and civil, burden of proof

differences: plaintiff = prosecution, accused = defendant, sanction = remedy, types of crimes.

Question 13

victorian court hierarchy and jurisdiction

Answer 13

high court = constitutional matters, disputes between states
supreme court of appeal = appeals
supreme court trial division= trials for serious indictable offences (e.g murder) or civil more than $100,000
county court = most indictable offences or civil usually greater than $100,000
magistrates= minor criminal offences, pre trial hearings, civil up to $100,000

Question 14

what is the presumption of innocence?

Answer 14

everyone is innocent until proven guilty
it has to be proven beyond a reasonable doubt
burden of proof rests with prosecution

Question 15

actus reus and mens rea

Answer 15

actus reus: the act or failure to act
mens rea: mental element, did they mean to do it?

Question 16

strict liability

Answer 16

offences where there is no need to prove mens rea e.g speeding
helps avoid backlog and wasting courts time, deterrent of criminal activities, people can be charged for a dangerous crime regardless of intent.

Question 17

age of criminal responsibility

Answer 17

under 10: cannot be charged
10-14: presumption theres no mental capacity to commit a crime (doli incapax) this can be disproven
over 14: criminally liable

Question 18

burden of proof

Answer 18

prosecution has the burden of proof to convince the accused is guilty beyond a reasonable doubt. if a defence is raised, the burden is on the accused.

Question 19

standard of proof

Answer 19

proven beyond reasonable doubt

Question 20

crimes against the person

Answer 20

causing or threatening harm against another person

Question 21

crimes against the property

Answer 21

using force or deception to obtain, damage, or destroy property.

Question 22

summary offences

Answer 22

minor criminal offences e.g disorderly conduct, common assault

Question 23

indictable offences

Answer 23

serious criminal offences e.g murder, stalking

Question 24

indictable offences heard summarily

Answer 24

mid criminal offences heard like summary offence. lower max sentences, quicker, cheaper

Question 25

principal offender

Answer 25

committed the crime or was directly involved in the offence e.g person who hit someone with their car

Question 26

accessory

Answer 26

person who knows/ thinks a person is guilty and actively tries to prevent the arrest or punishment of that person
e.g person who helped hide the body

Question 27

elements of murder

Answer 27

(intentional) malice aforethought: thought about / meant to seriously injure or kill, foresight the outcome was almost certain to occur
reckless: causes death while acting recklessly as to causing death or grievous bodily harm, easily foreseeable outcome

Question 28

defences of murder

Answer 28

self defence: lawfully use force or threat of force in order to prevent unlawful harm against themselves or another. was reasonable and necessary according to accused in the circumstances
family violence self defence: responding to harm that isn’t immediate and the force can be excessive.
defence of duress: committed under compulsion to a threat of serious bodily harm or death. accused thought it was the only reasonable way and the conduct was a reasonable response to a reasonable person.

Question 29

murder on individuals and society

Answer 29

individuals: feel unsafe, grieving, ptsd, drift away from family and friends
society: less sense of community, scared to go out, less willing to intervene in crimes.

Question 30

why people want to peruse a civil law case

Answer 30

because they believe their rights have been infringed

Question 31

types of civil law

Answer 31

workplace law: relationship between employees and employers.
contract law: protect rights of parties to make enforceable agreements
family law: care of children splitting of assets in broken down families
defamation law: reputation being damaged by lies
negligence law: certain individuals to prevent foreseeable damage
consumer protection law: individuals purchasing goods or services do not have their rights infringed
wills and probate law: creation and enforcement of wills
property law: individuals buy, sell or rent houses or deal with commercial property leases

Question 32

breach

Answer 32

breaching a civil law, breaching someones individual rights

Question 33

causation

Answer 33

who / what is the cause of loss

Question 34

loss

Answer 34

the concept of a loss suffered by the plaintiff

Question 35

limitation of actions

Answer 35

time frame in which you can report / sue since noticing the loss

Question 36

burden of proof (civil)

Answer 36

on plaintiff unless defence

Question 37

standard of proof (civil)

Answer 37

‘on the balance of probabilities’ more likely than not

Question 38

representative proceedings

Answer 38

seven or more people sue together under similar circumstances

Question 39

elements of liability of negligence

Answer 39

risk was foreseeable, reasonable person would take a precaution, action or failure to act was a necessary condition of the harm caused

Question 40

limitation of actions of negligence

Answer 40

3 years

Question 41

possible defences of negligence

Answer 41

contributory negligence: plaintiff contributed to their harm.
voluntary assumption: plaintiff is aware of and freely accepts the risks involved.

Question 42

impact of negligence on society and parties

Answer 42

plaintiffs: physical injuries, psych injuries, financial loss, revictimisation
defendant: reputational damage, financial loss, cultural changes, third party claims, class actions.