Judicial Precedent Flashcards
What is stare decisis?
Translation - to stand by what has been decided
Similar cases should be decided in a similar way to ensure the law is certain consistent and fair
What is a point of law?
A precedent that is decided on a point of law
What is law reporting?
They reports of law and the percent is written
Ratio decidendi explanation
Latin for reason for the decision
The legal reason in which the judges based his decision
Contains the point of law which forms the precedent
The ratio of binding so it must be followed by lower courts in later cases with the same point of law
Oxford v Moss
Information is not property and cannot be stolen
Obiter dicta
‘Other things said’
The judge speculates what the decision would have been if the case facts had been different
This is persuasive which means it does not have to be followed the they can choose to follow it
R v Howe duress can not be used as a defence to murder
R v Gotts followed the obiter that it can be used for attempted either
Original precedent
A case raises a new point of law that has never been decided
Donoghue v Stevenson created negligence
Binding precedent
The ratio is a case in a senior court must be followed when a later case is raising the same point of law in a lower court
Donoghue v Stevenson was followed in Grant v Australian Knitting Mills
Persuasive precedent
The court is not bound by it but can choose to follow it if persuaded
R v Gotts was persuaded by Rv Howe
