Legal Mid-year exam Flashcards
Fairness
means having fair processes and a fair hearing. This means that the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events, and the pre-hearing and hearing processes should be fair and impartial.
Equality
means people should have an equal opportunity to present their case as anyone else, without advantage or disadvantage.
Access
means that all people should be able to understand their legal rights and pursue their case.
Characteristics of an effective law: Laws must reflect society’s values
If a law is in line with society’s current values, then members of society are more inclined to follow that law then disregard it. This means that laws need to change when society’s values change.
Characteristics of an effective law: Be enforceable
That is, if people break the law, it must be possible to catch and punish them, or sue them. If not possible, people may be less inclined to follow the law.
Characteristics of an effective law: Laws must be known
For a law to be effective, the public must know about it. If people do not know about a law, they cannot follow it.
Characteristics of an effective law: Laws must be clear and understood
It is important for a law to be written in a way so that people can understand it, and so the intent of the law is clear. If a law is ambiguous, unclear, or written in language or in jargon that people don’t understand, it is possible people won’t follow it and the law will be ineffective.
Characteristics of an effective law: Laws must be stable
For a law to be effective, it must be stable. If a law is constantly changing, no one would be certain what the law is, and it may not be as effective as a law that has remained constant for some time.
Sources of law: Common Law
Law made by judges through decisions made in cases. Also known as case law or judge-made (as opposed to statue law)
Sources of law: Statute Law
Law made by parliament; also known as Act of Parliament or legislation (as opposed to common law)
Sources of Law: Precedent
A principle established in a legal case that is followed by courts in cases where the material facts are similar. Precedents can either be binding or persuasive.
Binding Precedent: the legal reasoning for a decision of a higher court in the same jurisdiction (i.e court hierarchy) in cases where the material facts are similar.
Persuasive Precedent: the legal reasoning behind a decision of lower (or equal) court within the same jurisdiction, that may be considered relevant (and therefore used as a source of influence) even though it is not binding (see binding precedent)
Methods used to avoid precedent
- Distinguishing a previous precedent: If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent. It may distinguish the material facts in the present case from those in the previous case and make a different decision.
- Overruling a previous precedent: A precedent can be overruled by a higher court in a different case. Overruled means it no longer applies.
- Reversing a previous precedent: A precedent can be reversed when the same case is taken to a higher court on appeal.
- Disapproving a previous precedent: In some instances, a court is bound by a precedent but expresses its disapproval of or disagreement with the precedent. Does not change a precedent, but a higher court, when deciding a later case, may choose to agree with the court that disapproved of the precedent and decide to overrule it.
The relationship between Parliament and courts.
- Statutory interpretation: For legislations to be effective, courts must apply the statues to the case before them. To do this, it is sometimes necessary for a court to interpret the meaning of the words in a statue or in secondary legislation (which is made by bodies given their law-making power through an Act of Parliament). Decisions by courts about the meaning of the words in statues from precedents that become part of the law to be followed in the future, as illustrated in the scenario below.
- Codification of common law: Because parliament is the supreme law-making body, it can make laws that confirm precedents. To codify a precedent passes an Act of Parliament that reinforces a principle established by a court. This is known as codification of common law, because the common law is codified or put into a statue
- Abrogation of common law: Parliament, as the supreme law-making body, can change or override (i.e abrogate) common law. Parliament abrogates common law by passing an Act of Parliament that specifically abolishes the particular common law principle.
- Ability of courts to influence parliament: Courts can also influence changes in the law made by parliament through the comments judges make during court cases. For example, they may indicate in a judgment that they think a law should be changed by parliament.
Criminal Law
An area of law that defines behaviours and conduct that are prohibited (i.e crimes) and outlines sanctions (i.e penalties) for people who commit them (as opposed to civil law)
Civil Law
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes (as opposed to criminal law)
The distinction between criminal law and civil law
The aim of civil law:
To regulate the conduct between parties to a dispute, and to remedy a wrong that has occured.
The consequences: Remedy
The aim of criminal law:
to protect society and to sanction offenders
The consequences: Sanction
The relationship between criminal law and civil law
The same behaviour can give rise to both a civil dispute and criminal case. A victim may sue someone else who they believe is responsible for a crime.
Overview of the Victorian court Hierarchy
- High Court of Australia (Federal Court)
- Supreme Court of Victoria
- County Court of Victoria
- Magistrates’ Court of Victoria
Reasons for a court Hierarchy
- Allows for specialisation or expertise
- The court hierarchy enables the parties to a court case to appeal to a higher court if they are not satisfied with a lower court’s decision
- administrative convenience
The purpose of criminal law
- Protect individuals: by establishing crimes and processes to deal with people who commit these crimes.
- Protect property: Including, privately owned and public property, land and the environment, and personal property.
- protect society: aims to protect the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system. Maintain public order and community safety.
The presumption of innocence
The right of a person accused of a crime to be presumed not guilty unless proven otherwise.
Key concepts of criminal law: The elements of a crime - actus reus and mens rea
- Actus reus: ‘guilty act’ (the physical element of a crime). The prosecution must prove the person physically did the wrongful action.
- Mens rea: ‘guilty mind’ (i.e the mental element of a crime) The prosecution must prove that the person knowingly or intentionally committed the wrongful action (or inaction)
Key concepts of criminal law: strict liability
where culpability or responsibility for committing a crime can be established without having to prove there was mens rea (i.e a guilty mind)
Key concepts of criminal law: the age of criminal responsibility
the minimum age a person must be to be charged with committing a crime.
- A person under 10 years of age cannot be charged with a crime.
- A person aged between 10-13 years can be charged with a crime if the prosecution can prove that the child knew, at the time of the crime, that their actions were wrong.
- Doli incapax: ‘incapable of evil’; the principle that a child aged between 10 and 13 years is presumed to be incapable of forming mens rea (guilty mind)
