Judicial Decision Making

Question 1

In jury trials, how is the responsibility to make judicial decision divided?

Answer 1

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

Question 2

In a trial, what happens where there is on jury?

Answer 2

The judge, magistrate or tribunal member will find facts and apply facts to the law to arrive with verdict

Question 3

What are two sources of law?

Answer 3

Precedents from past judicial decisions and the legislation established by parliament

Question 4

What are obstacles to establishing material facts in a case?

Answer 4

witnesses may not give exact description of what occurred either from bias or poor recollection

Question 5

What type of evidence may be presented to court or tribunal? Describe

Answer 5

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

Question 6

what is direct evidence?

Answer 6

evidence from eye witness that if accepted is used as as material fact for a case

Question 7

Describe the process of fact-finding

Answer 7

Fact-finder will have to gather evidential statements made by eye witnesses.

They follow procedures that will help them develop material facts of case

Question 8

What are some rules of evidence in court that governs whether evidence should be admitted or excluded?

Answer 8

• 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

Question 9

Who can make grounds for appeal?

Answer 9

The unsuccessful party of a trial

Question 10

What do appellate courts have the ability to do?

Answer 10

Overturn decision by trial court for their error of law rather than error of facts

Question 12

In criminal appeals, who does the criminal law favour and why?

Answer 12

Favours defendants due to fewer resources than state and greater onus

Imbalanced power between prosectuor and accused

seriousness of sentence

Question 13

Describe the increase in prosecution appeals in criminal cases

Answer 13

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

Question 14

When may acquittal on serious charged be appealed?

Answer 14

‘fresh and compelling evidence’ of guilt and interference with the decision of the jury

Question 15

In criminal cases, when an appeal has been made on an acquittal on a serious charge, which court does this go to?

Answer 15

The Court of Appeal where the retrial will be held to overturn the acquittal for serious charges

Question 16

Is the double jeopardy protection for used?

Answer 16

It is not used in jury trials in australia and very few cases in England have adopted this

Question 17

What is the difference between civil appeals and criminal appeals?

Answer 17

A rehearing occurs in civil appeals (rare for jury) rather than retrials in criminal appeals

Question 18

What occurs in the rehearing of a civil appeal?

Answer 18

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

Question 19

In both civil and criminal cases, what happens when appellant has successfully defied facts of trial?

Answer 19

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

Question 20

In jury trials, who is responsible for questions of fact and law?

Answer 20

Jurors answer questions of fact while judges to answer for question of law

(Cook, Crekye, Geddes p.201).

Question 21

Do trial judges have discretion in apply law in disputes?

Question 23

How does the judge apply law if there is no legal authority and the case is novel?

What are the limitations?

Answer 23

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

Question 24

When may a precedent not be followed?

Answer 24

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

Question 25

What does it mean to distinguish precedents? How is this a way to avoid precedent?

Answer 25

Precedent is not applied because of material difference in facts between earlier and present case

Question 26

How may the broadness of the statement of law be a way to avoid precedent?

Answer 26

It is too ambiguous for the statement to be applied to the material facts

Question 27

How can obiter dictum be a way to avoid precedent?

Answer 27

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

Question 28

How can a different social environment be a way to avoid precedent?

Answer 28

Laws change in accordance to changing social environment

Appellate courts may overrule precedents that do not fit into current social conditions

Question 29

What is an example of precedent not followed due to change in social environment?

Answer 29

Mabo v Queensland [No 2] (1992) 175 CLR 1

HCA denied terra nullius doctrine and suported native title

Question 30

Can lower courts ignore an older precedent if it does not fit into social conditions?

Answer 30

No, they can follow and provide criticsm

This therefore may be brought to the appeal court for precedent to overrule

Question 31

How may way when a case is wrongly decided be a way to avoid a precedent?

Answer 31

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. **

Question 32

What are disadvantages of not following precedent

Answer 32

• 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