Intro To Law Flashcards
Types of Law
Statutory Law - Legislation
Common Law - Judge made (or decision based) Law
When there is conflict between a common law principle and a statute, the statute shall always prevail
Proctor v Jetway Aviation Pty Ltd
Precedent: obligation of every court is to follow superior court as it is often stated. Even if there the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However you must be binded.
Doctrine of Precedent
A precedent is a judgement or decision of a court as an authority for deciding a similar set of facts
Binding or Persuasive
- Original - create a new rule of law
- Declaratory - suggest the application of an already - existing rule of law.
- Authoritative - binding and must be followed.
- Persuasive - which need not be followed but are worthy of consideration.
Ratio Decidendi
The reason for a judicial decision. It is binding precedent for future cases on the same
Obiter Dictum
A saying/observation by the way.
A judges opinion about legal issues that did not form the central core of the legal dispute in the case.
Only persuasive precedent
Mellor v Low [2000]
There is no intimidation unless and behaviour has affected its object in the required manner, that is by inducing fear or affecting conduct.
It does not occur until the effect is created. The concept is two fold:
Intimidation necessarily consists both of a particular form of conduct and the effect has on another person. There is no intimidation until another person has been intimidated.
In order to sustain a conviction for intimidation of a police officer acting in his execution of his duty under s 60 it is necessary for the prosecution to prove that the police officer was put in fear of apprehension, was forced into or deterred from some action by being put in fear, or was overawed or cowed
Regina v Martin [2002]
Rejected Mellor v Low. Held it is the offence of intimidation of a police officer under s 60 of the Crimes Act established by proof of no more than that the acts or words of the accused caused the officer to experience fear or apprehension.
It is not necessary to establish that the officer was overborne to the extent that he or she was influenced to or deterred from some action or otherwise corrupted in the executed of duty
Common Law
Is judge made or case law. It supplements statute law insofar as it creates some offences that are not legislated. E.g. larceny
Common Law as per Gleeson CJ
The word common was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places.
Court Hierachy
High Court NSW Court of Appeal and Court of Criminal Appeal Supreme Court District Court Local and Children’s Court
Who is the ultimate Court of Australia?
High Court
The Australia Acts of 1986 abolished all appeals from Australian Courts to the Privy Council in Britain
Precedent & Courts
District Court - persuasive not binding
Supreme Court - binding on inferior jurisdictions in its State.
High Court - binding on all lesser courts within Australia
Statutes
Acts (laws) enacted by Parliament (legislation)
Regulations made by bodies/officials under parliamentary authority (delegated legislation)
When there is a conflict/inconsistency between a Cth and a State Law, the Cth law shall always prevail.
