exam revision Flashcards
sources of statue law are…
parliament can create statue laws as the supreme law making body - acts of parliament
subordinate body’s, making power from commonwealth and state parliaments who delegate their law making power to subordinate bodies.
sources of common law
courts can make common law when judges interpret statutes or make precedents.
precedent
a principle established in a legal case that should be followed by courts in later cases where the material facts are similar.
Precedents can either be binding or persuasive
binding precedent
the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction in cases where the material facts are similar.
statutory interpretation
the process by which judges give meaning to the words or phrases in an act of parliament so it can be applied to resolve the case before them.
persuasive precedent
the legal reasoning behind a decision of a lower court within the same jurisdiction, or a court in a different jurisdiction that may be considered even though it is not binding.
reversing precedent(method of avoiding precedent)
occurs when the same court changes its previous decision as it was incorrect, establishing a new interpretation of the law.
overruling (method of avoiding precedent)
when a higher court nullifies a lower courts decision, setting a new legal standard.
distinguishing (method of avoiding precedent)
courts can identify significant differences between a current case and a prior case, allowing it to apply a different legal rule, preventing precedent.
disapproving (method of avoiding precedent)
publicly disapproving precedent, but must follow precedent.
two reasons for the victorian court hierarchy
- allows for specialisation of expertise
- enables parties to appeal to a higher court for review if unsatisfied.
presumption of innocence
the right of a person accused of a crime to be presumed bot guilty unless proven otherwise.
beyond reasonable doubt
the standard of proof in criminal cases. this requires the prosecution to prove there is no reasonable doubt that the accused committed the offence.
standard of proof
the degree or extent to which a case must be proved in court.
prosecution
responsible for conducting the case and appearing in court.
accused
a person charged with a criminal offence but has not been found guilty or pleaded guilty
burden of proof
the party responsible of providing the facts of the case. the prosecution carries the burden of proof in criminal offences, whereas the plaintiff carries the burden of proof in civil law
offender
someone who is found guilty or has pleaded guilty
plaintiff
person who brings a case against another in a court of law.
balance of probabilities
the standard of proof in civil disputes. this requires the plaintiff to establish that it is more probable than not that their claim is true.
bail
the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
actus reus
guilty act - the physical element of the crime.
mens rea
guilty mind - the mental element of the crime (state of mind)
‘knowing, intentionally, maliciously, recklessly, negligently and wilfully’ are examples
strict liability
crimes that have no mental element in their legal definition prosecution doesn’t have to prove mens rea
age of criminal responsibility
10 - 13 can be charged if doli incapax is found, 14 and above can be charged without proving doli incapax
doli incapax
a latin term meaning incapable of evil refers to the principle in Victoria that a child aged between 10 to 13 years is presumed to be incapable of forming mens era because they do not have the intellectual or moral capacity to know the differences between right and wrong.
summary offence
a minor offence generally hear in the magistrates court
indictable offence
a serious offence generally heard before a judge and a jury in the county court or Supreme Court of Victoria
indictable offence heard and determined summarily
a serious offence that is dealt with as a summary offence if the court and the accused agrees.
criminal law
an area of law that defines behaviours and conduct that are prohibited (i.e crimes) and outlines the sanctions for the people who commit them.
fairness
all people can participate in the justice system and its processes should be impartial and open.
equality
people should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.
access
all people should be able to engage with the justice system and its processes on an informed basis
how many jury are in a criminal trail?
12
in the selection of jury who may qualify as ineligible
- occupation such as police or lawyer
- language Barries
-physical disabilities
in the selection of jury who may qualify to be disqualified from the jury panel
- criminal convections who have served a term of imprisonment for over three years.
- on remand or bail
-bankrupt
in the selection of jury who may qualify as excused
- an appeal to not be empanelled due to a valid reason such as medical, financial and distance reasoning.
in the selection of jury what it is to be challenges
a lawyer can challenge a person with or without a reason to not be empanelled, no limit for challenges with a reason, however 3 without a reason.
what Is the role of the jury in a criminal trial
- listen to all the evidence
-concentrate during the trial - piece the evidence together and decide whether the accused is guilty or not guilty.
majority verdict in criminal trial
a decision where all but one juror agree. in a criminal trial this means 11 out of 12 jury.
evaluate the jury system
adv - jurors are independent and impartial; in particular, they are independent of the legal and political systems, thus helping to ensure equality and fairness in their decision.
dis - juries do not give reasons for their decisions, and deliberates occur behind closed doors, which can raise questions about whether they have understood the evidence or have made their decision based on bias or prejudice.
adv - the jury system allows the community to be involved in the legal system and in the administration of justice. this increases the communities confidence in the legal system.
dis - not all members of the community can be on the jury, because of th laws around people who are disqualified or ineligible, and people who can be excused or challenged. therefore, some may argue that it is not a true cross-section of the community.
adv- the jury system spreads the responsibility for making a decision across several jurors.
dis - jurors may have biases that may place a role in their deliberations, even if they are not aware of those biases.
sanction
a penalty imposed by a court on a person guilty of a criminal offence
punishment
one purpose of a sanction, designed to penalise the offender, and show society and the victim that criminal behaviour will not be tolerated.
- allows victims and their families to feel a sense of retribution.
-improsonment and deprivation of freedom is the ultimate punishment in our society.
deterrence
one purpose of a sanction, designed to discourage the offender and others in the community from committing similar offences.
-general deterrence; discourage the general public from committing the crime.
-specific deterrence; aimed at stopping the particular offender who is being sentenced from repeating th offence.
denunciation
one purpose of a sanction, designed to demonstrate the community’s disapproval of the offenders actions.
- designed to convey the message that this type of behaviour will not be tolerated by courts
protection
one purpose of sanction, designed to safeguard the community from an offender by preventing them from committing a further offence.
rehabilitation
one purpose of sanction, designed to reform an offender in order to prevent them from committing offences in the future.
fine (types of sanctions)
a sanction that requires the offender to pay an amount of money to the state.
community correction order (types of sanctions)
a flexible non-custodial sanction that the offender serves in the community with conditions attached to the order.
imprisonment (types of sanctions)
a sanction that involves removing the offender from society for a stated period of time and placing them in prison.
parole
the supervised and conditional release of a prisoner after the minimum period of improvement has been served.
recidivism
re-offending; returning to crime already having been convicted and sentences.
purposes of civil law
provide guidelines of acceptable and unacceptable behaviour so individuals can live together in harmony. avoids the exploitation of others rights
protect the rights of individuals
protects the rights of individuals
provides an avenue for people to seek compensation where a breach of civil law has occurred.
remedy the hair that has been suffered when rights are infringed, civil law provides a way to return the person harmed to their position before the harm occurred.
purpose of contract law
aims to ensure people who make promises under a contract to stick with them.
purpose of negligence
aims to ensure that people who owe a duty go care uphold those duties.
purpose of wills
set of rules on how inheritance is divided
purpose of nuisance
aims to ensure people can enjoy their rights, free of interference or annoyance
purpose of deformation
aims to ensure no harm to reputation occurs due to false statements
breach
the breaking of or failure to fulfil or comply with a duty or obligation
causation
the direct relationship between one event and another event, where the first event was the reason the second event occurred, and event 2 would not have occurred by itself without event 1.
loss
a type of damage or harm suffered by a person. it can involve both economic and non-economic loss.
limitations of action
there is a time within which a wronged party must sue the wrongdoer. once the time period has passed, the defendant can raise a defence that the plaintiff is to late to obtain a remedy.
what is the limitation of action for fro a breach of contract
6 years
what is the limitation of actions of deformations
one year
define the burden of proof in civil law
the obligation of a party to prove a case. the burden of proof usually rests with the party who initiates the action (the plaintiff in a civil dispute and the prosecution in criminal trials)
the standard of proof
is the degree or extent to which a case must be proven. In civil cases this is the balance of probabilities and in criminal cases this is beyond reasonable doubt.
the possible plaintiffs in a civil dispute include…
- the aggrieved party (the person who has suffered the loss)
-other victims (victims other than the aggrieved party)
who is the aggrieved party
aggrieved party is the person whose rights have been infringed and who has suffered loss.
class action
a legal proceeding in which a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to court in the name of one person; also called a representative proceeding or a group proceeding
who are other victims to a civil dispute
a plaintiff can be a person who has indirectly suffered loss as a result of the actions of another party.
who are possible defendants to a civil dispute
-the wrongdoer
-employers
-persons involved in the wrongdoing.
vicarious liability
the legal responsibility of a third party for the wrongful acts of another (an employers liability for what their employees do)
how could an employer become a defendant
May become a defendant under the principle of vicarious liability as the employer has the right to control the activity of the wrong doer.
who are persons involved in wrongdoing
a person may be involved in wrong doing if they
-aided, abetter
-induced or encouraged the wrongdoing
-were in any way, directly or indirectly, a party to the wrongdoing
-conspired with others to cause the wrongdoing
deformation
a type of tort that involved the actions of damaging a persons personal or professional reputation in the community through the communication of false and untrue statements or information.
negligence
a type of tort law that involves a breach of a duty of care, causing loss or harm.
contributory negligence as a defence to negligence
contributory negligence is a defence that can be used by a defendant who alleges that the plaintiff contributed to the harm caused by the defendant. if proved, this reduces the damages the defendant has to pay.
assumption of risk as a possible defence to negligence
the defendant claims that the plaintiff accepted the dangers of a known and understood risk, either expressly or by implication
two defences to negligence
- contributory negligence
-assumption of risk
the defence justification in deformation
applies when a defamatory statement is substantially true. If the vast majority of the claim is true the substance of the statement is true.
the defence contextual truth in deformation
when defamatory statements are made within the same context as statements that are substantially true, and the defamatory statements do not further harm the reputation of the plaintiff. This is because, when read in context, the statement is substantially true. the truth of the more serious allegation overrides the falsehood in the less serious allegation. as the untrue statement on the plaintiffs reputation is insignificant
the defence of absolute privilege in deformation
absolute privilege gives a defendant complete immunity from being sued in certain cases. can be used where they can prove that the defamatory statement was published in the course of proceedings of parliamentary bodies, courts or tribunals.
the defence of publication of public documents as a defence for defamation
if the published statement was a fair copy, summary or extract of a public document, only if the statement was published for the public or for educational purposes. examples of public documents are those readily available from parliamentary body
defence fair report of proceedings of public concern for deformation
the statement is a fair report of proceedings, and the report was published for the publics information or for educational purposes
defence public interest for defamation
aimed at protecting the publication of matters that concern an issue of public interest, and the defendant reasonably believes that the publication of the matter was in the publics interest.
defence honest opinion for defamation
a defendant may claim that the defamatory material is an expression of their honest opinion rather than a statement of fact.
defence innocent dissemination for defamation
protects people who may unknowing distribute defamatory information, such as printing companies, booksellers, libraries and the Internet.
remedy
any order made by a court designed to address a civil wrong or a breach. a remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
civil law
an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
tribunal
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts
- methods used to resolve a civil dispute such as mediation
a method of dispute resolution that uses an independent third party the mediation to help the disputing parties reach a decision by facilitating discussion. (final decision is legally enforceable if terms of settlement are signed)
- methods used to resolve a civil dispute such as conciliation
an alliance or joining together of two or more political parties, usually to form government. Conciliators can make suggestions and the final decision is legally enforceable if terms of settlement are signed
- methods used to resolve a civil dispute such as arbitration
a method of dispute resolution in which an independent person is appointed to listen to both sides of dispute and make a decision that is legally binding on the parties. the decision is known as an arbitral award. the arbitrator makes binding decision that is legally enforceable.
ombudsman
an office holder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities or bodies.
complaint bodies
an organisation established by parliament to resolve formal grievances made by an individual about the conduct of another party.
Victorian Civil and Administrative Tribunal (VCAT)
a tribunal that deal with disputes relating to a range of civil issues heard by various lists, such as the human rights list, the civil claims list and the presidential tenancies list.
difficulties First Nations people face in the justice system
Limited Access to Legal Resources: Many First Nations people live in remote or rural areas, which can result in limited access to legal aid, appropriate defence counsel, or a fair trial.
Mistrust of the System: Due to a history of unjust treatment, many First Nations communities have a deep mistrust of the justice system, decreasing they’re participation of resolving disputes in the justice system.
Racism and Discrimination: Many First Nations individuals experience racism and bias at various stages of the justice process, from policing to sentencing. Stereotypes about Indigenous peoples being more prone to criminal behaviour can lead to unfair treatment and potentially harsher sentencing.
damages
is an amount of money that one party is ordered to pay another party due to loss or suffering induced.
purposes of remedies
- to make the point that the defendants actions where not acceptable
-to stop the harm from happening ant further.
-to force someone to do something they are refusing to do.
nominal damages
a small amount of
money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial
compensatory damages
an amount of money awarded to a plaintiff for harm, injury, or other losses suffered. It includes general damages, special damages, and aggravated damages
injunctions
a remedy in the form of a court order requiring the defendant to do something or not to do something. an injunction is designed to prevent a person doing harm or to rectify a wrong.
restrictive injunction
This injunction stops someone from doing something; for example, a person could apply for a restrictive injunction to stop a building from being destroyed if it was in the interests of the nation to preserve it
mandatory injunctions
this injunction is sought when a person wishes to compel someone to do a particular act; for example to remove something from someones land.
