Judicial Decision Making Flashcards
In jury trials, how is the responsibility to make judicial decision divided?
The judge presents the **legal issues and relevant laws to the issue at stake **to the jury who finds facts, apply law to facts and providing the final verdict
In a trial, what happens where there is on jury?
The judge, magistrate or tribunal member will find facts and apply facts to the law to arrive with verdict
What are two sources of law?
Precedents from past judicial decisions and the legislation established by parliament
What are obstacles to establishing material facts in a case?
witnesses may not give exact description of what occurred either from bias or poor recollection
What type of evidence may be presented to court or tribunal? Describe
Circumstantial evidence may be provided to court or tribunal. That is, if accepted, at best it can be inferred to by material facts and used as background rather than being concrete evidence of material facts
what is direct evidence?
evidence from eye witness that if accepted is used as as material fact for a case
Describe the process of fact-finding
Fact-finder will have to gather evidential statements made by eye witnesses.
They follow procedures that will help them develop material facts of case
What are some rules of evidence in court that governs whether evidence should be admitted or excluded?
- The testimony delivered by witness should not contain hearsay and needs to be exactly what they witnessed
- free from opinion and judgement. That is exception for experts who impart knowledge from their field that may assist fact -finder
- Criminal trial: protect defendant from double jeopardy (other allegation and conviction of defendant is to be omitted). Unless, it is very probative
Who can make grounds for appeal?
The unsuccessful party of a trial
What do appellate courts have the ability to do?
Overturn decision by trial court for their error of law rather than error of facts
In criminal appeals, who does the criminal law favour and why?
Favours defendants due to fewer resources than state and greater onus
Imbalanced power between prosectuor and accused
seriousness of sentence
Describe the increase in prosecution appeals in criminal cases
prosecution appeals has expanded recently.
Can appeal to trial judge who refuses evidence of incriminating nature
Can appeal to lenient sentence
make Appeal to high court of unfavourable decision of _intermediate appeal court _
appeal toacquittal by judge or jury
When may acquittal on serious charged be appealed?
‘fresh and compelling evidence’ of guilt and interference with the decision of the jury
In criminal cases, when an appeal has been made on an acquittal on a serious charge, which court does this go to?
The Court of Appeal where the retrial will be held to overturn the acquittal for serious charges
Is the double jeopardy protection for used?
It is not used in jury trials in australia and very few cases in England have adopted this
What is the difference between civil appeals and criminal appeals?
A rehearing occurs in civil appeals (rare for jury) rather than retrials in criminal appeals
What occurs in the rehearing of a civil appeal?
The appeal court will use a transcript of trial evidence and deduce facts but the facts from the trial is also significant
However, evidence not used in the trial can be presented if it is useful and there was a justifable reason for it not having presented in the trial
proceed in appeal if trial judge’s decision and findings of fact is inconsistent with facts of the case
In both civil and criminal cases, what happens when appellant has successfully defied facts of trial?
Retrial court will be ordered by appellate court who do not have to deliver their own finding of facts.
Court can make final orders which ends any further appeal to avoid extra cost, delay and stress for parties and witnesses
In jury trials, who is responsible for questions of fact and law?
Jurors answer questions of fact while judges to answer for question of law
(Cook, Crekye, Geddes p.201).
Do trial judges have discretion in apply law in disputes?
How does the judge apply law if there is no legal authority and the case is novel?
What are the limitations?
Judges make fictions, which is create law that applies to the novel situation if only there is no authority because they are unsuitable or antiquated
Although, judges can only create law from the superior appelate courts. (HCA the ultimate court of appeal) Fits in with existing legal principles
When may a precedent not be followed?
Precedents are not binding for the High Court. The High Court may be persuaded by the precedent.
- statement if obiter dictum in earlier case
- precedent wrongly decided
- changed social environment
- facts from earlier case materially different from present case
What does it mean to distinguish precedents? How is this a way to avoid precedent?
Precedent is not applied because of material difference in facts between earlier and present case
How may the broadness of the statement of law be a way to avoid precedent?
It is too ambiguous for the statement to be applied to the material facts
How can obiter dictum be a way to avoid precedent?
Obiter dictums are not binding therefore if statement of law was identified as obiter, it is not binding.
This method may be used by lower courts to not use a precedent. However, must show respect to obiter of superior court
How can a different social environment be a way to avoid precedent?
Laws change in accordance to changing social environment
Appellate courts may overrule precedents that do not fit into current social conditions
What is an example of precedent not followed due to change in social environment?
Mabo v Queensland [No 2] (1992) 175 CLR 1
HCA denied terra nullius doctrine and suported native title
Can lower courts ignore an older precedent if it does not fit into social conditions?
No, they can follow and provide criticsm
This therefore may be brought to the appeal court for precedent to overrule
How may way when a case is wrongly decided be a way to avoid a precedent?
Courts do not have to follow precedent decided per incuriam whereby they are inconsistent with existing body of principles
The rejection of precedent is only available to superior courts while lower courts are bound to follow decisions of higher courts **despite precedent being per incuriam. **
What are disadvantages of not following precedent
- injustice, uncertainty in litigants whether their case will be succesful, inequality,
- not following precedent is illegal unless a justifiable reason is provided
- lower courts do not follow precedents from superior court will have the decision overturned in appeal (hence is why appeals exist in case precedents are not followed
