legal Flashcards
What is obiter dicta?
A judges expression of opinion that is not essential to the decision and not legally binding as precedent.
Obiter dicta can provide insight into a judge’s reasoning but does not have to be followed in future cases.
Define ratio decidendi.
The rule of law on which a judicial decision is based.
Ratio decidendi forms the binding element of a court’s decision and must be followed by lower courts.
What is jurisdiction?
The power of courts to make decisions and judgments over certain cases due to their nature.
Jurisdiction can be limited to specific types of cases, geographical areas, or levels of courts.
What is a code in legal terms?
A section of law where all acts relating to that section have been codified.
Codes simplify legal references by consolidating related laws into one document.
What does justice refer to?
Fairness, moral righteousness, and equitable treatment.
Justice is a fundamental principle in the legal system, ensuring that all individuals receive fair treatment.
What are equitable outcomes?
Outcomes of a legal matter that aim to result in justice and fairness for all parties.
Equitable outcomes seek to balance the interests and rights of all involved.
What is the rule of law?
The principle that no one is above the law.
This concept underpins democratic governance and the legal system.
Define crime.
An act or omission that is injurious to public welfare for which punishment is prescribed by law.
Crimes are categorized into various types, including felonies and misdemeanors.
What is statute law?
Laws created by the legislative part of government (parliament).
Statute law is distinct from common law, which is derived from judicial decisions.
What is common law?
Law created by precedent in legal cases that helps rule over future similar cases.
Common law evolves over time through judicial interpretations and rulings.
Define customary law.
Traditions and ideals of specific communities that govern them.
Customary law may vary significantly between different cultures and communities.
What is onus of proof?
The obligation of the prosecution/plaintiff to prove the accused’s guilt.
The onus of proof is crucial in determining the outcome of legal proceedings.
What is the standard of proof in a criminal case?
Beyond reasonable doubt.
This is a high standard that requires the prosecution to eliminate reasonable doubts about the accused’s guilt.
What is the standard of proof in a civil case?
On the balance of probabilities.
This standard is lower than in criminal cases, focusing on what is more likely true.
What are the arms of government?
Executive, judicial, legislative.
Each arm has distinct functions and responsibilities to maintain checks and balances.
What is the division of powers?
The powers granted to different levels of government, including exclusive, residual, and concurrent powers.
This division helps prevent any one level of government from becoming too powerful.
What is the Australian constitution?
The basis of law in Australia outlining rights, law-making processes, and government formation.
The constitution is a meta law that governs how laws are created and amended.
Define the doctrine of precedent.
Ensuring similar outcomes between similar cases, with binding and persuasive precedents.
Binding precedents must be followed, while persuasive precedents can influence but do not have to be adhered to.
What is the adversarial system?
A court system where two parties argue their case before an impartial judge.
The burden of proof lies with the prosecution in this system.
What is the inquisitorial system?
A system where the judge actively investigates the facts of the case.
The accused is required to prove their innocence under this system.
What are the elements of the rule of law?
Subject and accountable to the law, clear and enforced law, independent court system, presumption of innocence, no arbitrary arrest.
These elements ensure fairness and justice within the legal system.
What is the difference between onus of proof and standard of proof?
Onus of proof is who must prove guilt; standard of proof is the level of certainty required to establish guilt.
In criminal cases, the standard is beyond reasonable doubt, while in civil cases it is the balance of probabilities.
Describe the court hierarchy in Australia.
High Court, Supreme Court, District Court, Magistrate Court.
The High Court has binding precedent over all lower courts.
What is a summary offence?
A minor offence usually heard in a magistrate’s court.
Summary offences are typically less severe than indictable offences.
What is an indictable offence?
A more serious offence typically tried in a higher court with an indictment.
Indictable offences carry heavier penalties and a more formal legal process.
Define criminal act.
A person breaking the law, intentional or not.
Criminal acts can be classified into various categories based on severity.
What is criminal intent?
The intent to commit a crime.
Criminal intent is a crucial element in determining culpability.
What does alleged mean?
The crime the accused is claimed to have committed.
Allegations must be proven in a court of law.
Define accused.
Someone who is being charged with a crime.
The accused has the right to defend themselves against the charges.
What is a witness?
Someone who has evidence regarding the case and was present during the crime.
Witnesses can provide crucial testimony in court.
What is a suspect?
Someone who the police think is guilty.
Suspects have certain rights during investigations, including the right to remain silent.
Define victim.
The person the crime was committed against.
Victims have rights to support and protection under the law.
What is evidence?
Something used to prove a crime.
Evidence can come in various forms, including physical, testimonial, and documentary.
What is an offender?
A person who has been criminally charged and found guilty.
Offenders may face penalties such as imprisonment, fines, or community service.
What is a warrant?
A legal document allowing police to arrest or search.
Warrants are issued by a judge and must be based on probable cause.
What is an arrest?
When someone is restrained to compel obedience to the law.
Arrests must be conducted lawfully to be valid.
What is a charge?
An accusation of criminal activity.
Charges must be substantiated with evidence to proceed in court.
What is a summons?
A legal notice to inform a requirement to partake in a legal proceeding.
A summons can compel a witness to testify or a defendant to appear in court.
What constitutes criminal behaviour?
Any action or omission injurious to public welfare for which punishment is prescribed by law.
Criminal behaviour can encompass a wide range of actions, from minor infractions to serious felonies.
What is the criminal investigation process?
The process includes evidence collection, reasonable suspicion, and the right to silence.
The right to silence protects individuals from self-incrimination during investigations.
What types of evidence may police collect?
Oral, fingerprint, DNA, direct, circumstantial evidence.
Each type of evidence has its own standards for admissibility in court.
What is the difference between summary and indictable offences?
Summary offences are less serious and heard in magistrate courts; indictable offences are more serious and heard in higher courts.
The classification affects the legal proceedings and penalties involved.
Explain police rights and responsibilities.
Police have discretionary powers, can issue search and arrest warrants, and must uphold the rights of suspects and victims.
Specific laws govern police conduct, including the Police Powers and Responsibilities Act.
