Judicial Precedent

Question 1

Judicial Precedent

Answer 1

Decisions made by senior judges, may bind the decisions of other judges in the future if the facts are similar

Question 2

Stare Decisis

Answer 2

Judicial precedent is based on the Latin term
‘Stand by what has been said and do not unsettle the established’
Refers to hoe precedent is established, higher cases bound lower

Question 3

Ratio Decidendi

Answer 3

‘Legal principle set out in the judgement’
This is the reason for the decision and sets the precedent that must be followed in later cases (DONOGHUE V STEVENSON)- neighbour principle followed in (GRANT V AUSTRALIAN KNITTING MILLS)
Binding precedent

Question 4

Obiter Dicta

Answer 4

“Other Things Said During The Judgement”
These comments are not binding but may be chosen in later cases- persuasive precedent
(R V HOWE) duress is not a defence for murder, later in (R V GOTTS)

Question 5

The Judgement

Answer 5

1. Case Facts
2. Ratio Decidendi
3. Obiter Dicta
4. The Decision

Question 6

General Rule of Precedent

Answer 6

A precedent from an earlier case must be followed if the case facts are similar and the decision came from a higher court

Question 7

Binding Precedent

Answer 7

Must be followed
(CALDWELL) HOL set out guidance for arson, reasonable person Objective Test
(ELLIOT V C) 14 yo girl with learning difficulties lit a fire to keep herself warm, had to follow binding, d found guilty

Question 8

Original Precedent

Answer 8

If a point of law has never been decided on before then judge creates a new precedent
(DONOGHUE V STEVENSON) manufactures for negligence, new precedent

Question 9

Five Types of persuasive Precedent

Answer 9

1. Courts lower in hierarchy
2. Decisions from the judicial committee of the privy council
3. Obiter Dicta
4. A dissenting judgement
5. Courts in other countries

Question 10

Courts in the lower hierarchy

Answer 10

(R V R) HOL followed the HOA that a man could be guilty if racing his wife

Question 11

Decisions do the judicial committee of the privy council

Answer 11

Many judges are also part if the Supreme Court there decisions are treated with respect
(WAGON MOUND N1) reasonably foreseeable

Question 12

Obiter Dicta Statements

Answer 12

Other things said
(R V HOWE) duress is not a defence to murder, (R V GOTTS) followed

Question 13

Dissenting Judgement

Answer 13

Non unanimous. Judge who disagrees with the majority will set out their legal reasonings for their decision is a dissenting judgement
HOL may be persuaded but this in an appeal

Question 14

Decisions From Other Countries

Answer 14

Uses same ideas of common law, their decisions may be considered, especially common wealth like AUS and NZ