Legal studies glossary Flashcards
1
Q
beyond reasonable doubt
A
the standard of proof in criminal
cases. This requires the prosecution to prove there is no
reasonable doubt that the accused committed the offence
2
Q
burden of proof
A
the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case)
3
Q
common law
A
law made by judges through decisions made in
cases; also known as case law or judge-made law (as opposed
to statute law)
4
Q
crime
A
an act or omission that is (1) against existing law,
(2) harmful to an individual or society as a whole, and
(3) punishable by law
5
Q
criminal law
A
an area of law that defines a range of
behaviors and conduct that are prohibited (i.e. crimes) and
outlines sanctions (i.e. penalties) for people who commit them
(as opposed to civil law)
6
Q
indictable offence
A
a serious offence generally heard
before a judge and a jury in the County Court or Supreme
Court of Victoria
7
Q
indictable offence heard and determined summarily
A
a serious offence which can be heard and determined as a
summary offence if the court and the accused agree
8
Q
jury
A
an independent group of people chosen at random to
decide on the evidence in a legal case and reach a decision
(i.e. verdict)
9
Q
mens rea
A
Latin term meaning ‘a guilty mind’; the mental
element of a crime (i.e. an awareness of the fact that the
conduct is criminal).
10
Q
presumption of innocence
A
the right of a person accused of a
crime to be presumed not guilty unless proven otherwise
11
Q
principal offender
A
a person who has carried out the actus
Reus (guilty act) and has therefore directly committed the
offense
12
Q
standard of proof
A
the degree or extent to which a case must
be proved in court
13
Q
strict liability
A
where culpability or responsibility for
committing a crime can be established without having to prove
there was mens rea (i.e. a guilty mind)
14
Q
summary offence
A
a minor offence generally heard in the
Magistrates’ Court
15
Q
accessory
A
a person who knowingly assists another person
who has committed a serious indictable offence (i.e. an
indictable offence with a punishment of five years or more in
prison) to evade arrest, prosecution or conviction
16
Q
accused
A
a person charged with a criminal offence
17
Q
actus reus
A
a Latin term meaning ‘a guilty act’; the physical
element of a crime (i.e. the act itself).
18
Q
bail
A
the release of an accused person from custody on
condition that they will attend a court hearing to answer
the charges
19
Q
equality
A
one of the principles of justice; equality means
people should be equal before the law and have the same
opportunity to present their case as anyone else, without
advantage or disadvantage
20
Q
fairness
A
one of the principles of justice; fairness means
having fair processes and a fair hearing (e.g. 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 (or trial) processes should be
fair and impartial)
21
Q
government
A
the ruling authority with power to govern,
formed by the political party that holds the majority in the
lower house in each parliament. The members of parliament
who belong to this political party form the government
22
Q
House of Representatives
A
the lower house of the
Commonwealth Parliament
23
Q
persuasive precedent
A
the legal reasoning behind a decision
of a lower (or equal) court within the same jurisdiction, or
a court in a different jurisdiction, that may be considered
relevant (and therefore used as a source of influence) even
though it is not binding (see binding precedent)
24
Q
Legislative Assembly
A
the lower house of the Victorian
Parliament
25
Legislative Council
the upper house of the Victorian
| Parliament
26
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
27
ratio decidendi
a Latin term meaning ‘the reason’; the legal
reasoning behind a judge’s decision. Ratio decidendi forms the
binding part of a precedent
28
Senate
the upper house of the Commonwealth Parliament
| social cohesion
29
social cohesion
a term used to describe the willingness of
members of a society to cooperate with each other in order to
survive and prosper
30
statute
a law passed by parliament, also known as an act of
| parliament or legislation
31
access
one of the principles of justice; access means that
all people should be able to understand their legal rights and
pursue their case
32
binding precedent
the legal reasoning for a decision of a
a higher court that must be followed by a lower court in the
same jurisdiction (i.e. court hierarchy) in cases where the
material facts are similar
33
civil law
an area of law that defines the rights and
responsibilities of individuals, groups, and organizations in society
and regulates private disputes (as opposed to criminal law)
34
An act
Doing something
35
An Omission
The failure to act
36
Dpp
the Director of Public Prosecutions (DPP
37
OPP
The offense of Public Prosecutions
38
summary offense
a minor offense generally heard in the
| Magistrates’ Court
39
indictable offense
a serious offense generally heard before a judge and a jury in the County Court or Supreme Court of Victoria
40
burden of proof
```
the obligation (i.e.
responsibility) of a
party to prove a case.
```
41
Standard of proof
the degree or extent to
which a case must be
proved in court
42
Presumption of innocent
It is a guarantee to a person accused of a crime that they are entitled to be treated as, and considered to be, innocent until a charge against them is proved beyond a reasonable doubt. Innocent till proven guilty.
All a not guilty verdict says is that the prosecution did not have enough evidence to make a case, there was insufficient evidence.
43
Principle offender - General term
A crime does not necessarily involve only one offender. A person who commits an offence is often referred to as the principal offender.
44
Being ‘involved’ in a crime ( what does the law state)
The law states that a person ‘involved in a crime’ is also taken to have committed the crime, and is
responsible for the crime to the same degree as the principal offender.
45
Accessory
A person who knowingly assists another person who has committed a serious indictable offense (i.e. an indictable offense with a punishment
of five years or more in prison) to evade arrest, prosecution or conviction
46
Summary offences
Summary offences are minor criminal offences generally heard in the Magistrates’ Court. They are less
serious types of crime, and include offences
47
Indictable offences
Indictable offences are serious criminal offences generally heard by a judge (and a jury if the accused pleads not guilty) in the County Court or the Supreme Court of Victoria. Examples of indictable offences
include homicide offences
48
Indictable offence heard and determined summarily
A serious offence which can be heard and determined as a summary offence if the court and the accused agree.
49
The Crime Statistics Agency (CSA)
is an independent organisation responsible for processing,
| analysing and publishing crime statistics for the state of Victoria.
50
Cyber-crime (also known as e-crime)
Cyber-crime involves the offender using computers, the internet or other electronic systems and devices for illegal behaviours such as stealing or harassing.
51
Hate crime
a criminal offence motivated by hostility and prejudice towards the victim (e.g. because of their race or religion)
52
Organised crime
Organised criminal syndicates or gangs commit this type of crime, usually in a planned and ongoing way.
Organised crime often involves illegal activities such as drug manufacturing and tracking, money laundering, the sale of illegal firearms and illegal prostitution and gambling,
53
Juvenile Crime
Juvenile offenders are usually persons aged between 10 to 18_ years. Common juvenile crimes include fare evasion, assault, property damage (graffiti or vandalism) and theft (shoplifting, theft of a bicycle or theft of a motor vehicle)
54
White-collar Crime
White collar crime is generally described as a crime committed by a person who works in government,
businesses or the corporate world.
55
intoxication
the act of getting drunk of your own free will. Intoxication (i.e. drunkenness) is assumed to occur by a person’s own actions unless there was a factor that made it involuntary
56
automatism
a person has a total loss of control over their bodily movements (i.e. is not conscious or aware of what they are doing), so that they cannot form an intention to commit a crime
57
duress
strong mental pressure on someone to overcome their independent will and force them to do something
58
abrogate
to cancel or abolish a court-made law by passing an Act of Parliament
59
victim impact statement
To assist victims and their families, courts can make victim impact statements into account when
sentencing. These can be heart-rending.
60
contract law- Civil
An area of civil law governing the validity and
| enforceability of agreements made between two or more parties
61
counterclaim - Civil
A separate claim made by the defendant in response to the plaintiff’s claim (and heard at the same time by the court)
62
Damages - Civil
The most common remedy in a civil claim; an amount of money that the court (or tribunal) orders one party to pay to another
63
Defamation - Civil
A type of tort which involves the action of
damaging a person’s personal or professional reputation in the community through the communication of false and untrue
statements or information.
64
Defendant - Civil
(in a civil case) a party who is alleged to have
| breached a civil law and who is being sued by a plaintiff
65
Group member - Civil
```
A member of a group of people who are part of
a representative proceeding (i.e. class action)
```
66
Limitation
Of actions the restriction on bringing a civil claim
| after the allowed time.
67
Loss -Civil
A type of harm or damage suffered by a person, and can
| involve both economic and non-economic loss
68
Negligence
A type of tort which involves a breach of a duty of
| care, causing loss or harm
69
Nuisance
A type of tort which involves interference with a
| person’s right to use and enjoy the property
70
Plaintiff
(in civil disputes) the party who makes a legal claim against another person (i.e. the defendant) in court
71
Remedy
the term used to describe any order made by a court
designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and (as much as possible) restore the plaintiff to their original position prior to the breach of their rights
72
Right of subrogation
The right to ‘step into the shoes’ of an insured person and act on their behalf, including taking legal actions in their name.
73
Standard of proof
The degree or extent to which a case must be proved in court.
74
Sue
To take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)
75
Trespass
A type of tort involving interference or intrusion of
| a person’s body, property, or goods without the consent of that person.
76
Vicarious liability
The legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)
77
Accessorial liability
A way in which a person can be found
to be responsible or liable for the loss or harm suffered to another because they were directly or indirectly involved in causing the loss or harm (for example, they encourage another person to cause that harm)
78
Balance of probabilities
The standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that his or her side of the story is right
breach breaking or failing to fulfill a duty or obligation
79
Breach - Civil
Breaking or failing to fulfill a duty or obligation
80
The burden of proof
```
The obligation (i.e. responsibility) of a party
to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case
```
81
Causation
The direct relationship between one event (i.e.
Event 1) and another event (i.e. Event 2), where Event 1 was the reason Event 2 happened, and Event 2 would not have happened by itself, without Event 1.
82
Civil law
An area of law that defines the rights and
responsibilities of individuals, groups, and organizations in society and regulates private disputes (as opposed to criminal law)
83
Assault
The intentional or reckless use of force or the threat
| of force against another person without a lawful. excuse.
84
Vicarious liability
The legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)
85
Right of subrogation
The right to ‘step into the shoes’ of an insured
person and act on their behalf, including taking
legal actions in their name.
86
Insurers
A person or company contracted to compensate another in the event of damage or loss.
87
nervous shock
A psychological reaction, psychiatric harm that is more serious than ordinary grief or stress.
88
lead plaintiff
The person named as the plaintiff on behalf of the group members in a representative proceeding (i.e. class action)
89
Group member
A member of a group of people who are part of a representative proceeding (i.e. class action)
90
Representative proceeding
A legal proceeding in which a group of people who have a claim based on similar or related facts, bring that claim to court in the name of one person; also called a class action or a group proceeding
91
next friend’ or ‘litigation guardian’,
Children aged under 18 years can still be
plaintiffs. They can sue through what is known
as a ‘next friend’ or ‘litigation guardian’, who will commence a proceeding on their behalf.
92
Duty of care
duty of care in relation to negligence, the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them.
93
Injunction
A remedy in the form of a court order to do
something or not to do something. An injunction is designed to prevent a person from doing harm (or further harm) or to rectify some wrong.
94
Private nuisance
A type of tort which involves an act or omission that substantially and unreasonably interferes with the use and enjoyment of land.
95
Public nuisance
A type of tort which involves an act or omission that interferes with the comfort or convenience of a number of people to a considerable degree remedy.
96
Tort
A wrongful act that is recognized by law
97
Neighbour principle
In relation to negligence, the common law rule
that a person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’ (i.e. people who would be closely and directly affected by their acts or omissions)
98
Standard of care
The degree of caution required by a person who owes a duty of care to another.
99
Freedom of political communication
The right of the Australian people to freely discuss and debate political issues, subject to certain restrictions.
100
contributory negligence
A formal defence to negligence which claims the plaintiff contributed to the harm caused by the defendant. If proved, this will reduce the damages the defendant has to pay
101
volenti non fit injuria
A Latin terms meaning ‘to a willing person, injury is not done’. A defence in which the defendant claims that the plaintiff accepted the dangers of a known and understood risk, either expressly or by implication
102
community correction order (CCO)
a non-custodial sanction (i.e. one that doesn’t involve a prison sentence) that the offender serves in the community, with conditions attached to the order
103
delegated body
an authority or agency given power by the Victorian Parliament to make and/or enforce laws
104
denunciation
one purpose of a sanction; a process by which a court can demonstrate the community’s disapproval of the offender’s actions
105
diversion program
a method used in the Magistrates’ Court and Children’s Court to divert offenders away from the court and avoid a criminal record by placing them on a plan
106
Drug Court
a specialist court of the Magistrates’ Court which sentences offenders to a Drug Treatment Order where drugs or alcohol contributed to the commission of the offence
107
equality Principles
one of the principles of justice; equality means people should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage
108
fairness. Principles
one of the principles of justice; fairness means having fair processes and a fair hearing (e.g. 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 (or trial) processes should be fair and impartial)
109
fine
a sanction that requires the offender to pay an amount of money to the state
110
imprisonment
a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison
111
jurisdiction
the lawful authority (i.e. power) of a court, tribunal or other dispute resolution body to decide legal cases
112
Koori Court
a division of the Magistrates’ Court, Children’s Court and County Court that (in certain circumstances) operates as a sentencing court for Aboriginal people
113
protection
a division of the Magistrates’ Court, Children’s Court and County Court that (in certain circumstances) operates as a sentencing court for Aboriginal people
114
punishment principles
one purpose of a sanction; a strategy designed to penalise (i.e. punish) the offender and show society and the victim that criminal behavior will not be tolerated
115
rehabilitation
one purpose of a sanction; a strategy designed to reform an offender in order to prevent them from committing offenses in the future
116
access Principles
one of the principles of justice; access means that all people should be able to understand their legal rights and pursue their case
117
aggravated carjacking
the act of violently stealing an occupied car committed when the offender possesses a firearm, imitation firearm, offensive weapon, explosive or imitation explosive, or (in the course of carjacking,) causes injury to another person
118
aggravating factors
circumstances considered in sentencing that can increase the seriousness of the offence or the offender’s culpability (i.e. responsibility) resu
119
attempted murder
an act carried out with the intention of causing the death of another human being
120
carjacking
the act of violently stealing an occupied car
121
cumulative sentence
his means each sentence must be served one after the other rather than at the same time
122
mitigating factors
circumstances (i.e. factors) considered in sentencing that reduce the seriousness of the offence or the offender’s culpability and lead to a less severe sentence
123
complaints body
an organisation established by parliament to resolve formal grievances (i.e. complaints) made by an individual about the conduct of another party
124
conciliation
a method of dispute resolution which uses an independent third party (i.e. the conciliator) to help the disputing parties reach a resolution
125
conciliator
the independent third party in a conciliation who helps the parties reach an agreement that will end the dispute between them. The conciliator can make suggestions and offer advice to assist in finding a mutually acceptable resolution but the parties reach the decision
126
damages - remedy
the most common remedy in a civil claim; an amount of money that the court (or tribunal) orders one party to pay to another
127
injunction
a remedy in the form of a court order to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong
128
mediation
a method of dispute resolution, using an independent third party (the mediator) to help the disputing parties reach a resolution
129
mediator
an independent third party who does not interfere or persuade but helps the parties in a mediation as they try reach a settlement of the matter
130
remedy
a term used to describe any order made by a court designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and (as much as possible) restore the plaintiff to their original position prior to the breach of their rights
131
tribunal
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts
132
arbitration
a method of dispute resolution in which an independent person (known as an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award
133
arbitrator
the independent third party (i.e. person) appointed to settle a dispute during arbitration; arbitrators have specialised expertise in particular kinds of disputes between the parties and make decisions that are legally binding on them. The decision is known as an arbitral award
134
member
the person who presides over
final hearings
and compulsory conferences at VCAT. Members include
the President, vice- presidents, deputy presidents and senior and ordinary members
135
Victorian Civil and Administrative Tribunal (VCAT)
a tribunal that deals with disputes relating
to a range of civil issues heard by various lists (sections), such as the Human Rights List, the Civil Claims List and the Residential Tenancies List
136
representative proceeding
a legal proceeding in which a group of people who have a claim based on similar or related facts, bring that claim to court in the name of one person; also called a class action or a group proceeding
137
Productivity Commission
the Australian Government’s independent research and advisory body, which researches and advises on a range of issues
138
complaints body
an organisation established by parliament to resolve formal grievances (i.e. complaints) made by an individual about the conduct of another party
139
ombudsman
an officeholder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities
140
arbitral award
a legally binding decision made in arbitration by an arbitrator
141
compulsory conference
a confidential meeting between the parties involved in a dispute
(in the presence of an independent third party) to discuss ways to resolve their differences
142
terms of settlement
a document that sets out the terms on which the parties agree to resolve their dispute
143
Victoria Legal Aid (VLA)
a government agency that provides free legal advice to the community and low-cost or no-cost legal representation to people who can’t afford a lawyer
144
Australian Constitution, the
a set of rules and principles that guide the way Australia is governed. The Australian Constitution was passed by the British Parliament and its formal title is the Commonwealth of Australia Constitution Act 1900 (UK)
145
Commonwealth of Australia Constitution Act 1900 (UK)
a set of rules and principles that guide the way Australia is governed.
146
charter or bill of rights
a document that sets out the basic rights and/or freedoms of the citizens in a particular state or country
147
express rights
rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by referendum
148
Human Rights Charter
he Charter of Human Rights and Responsibilities Act 2006 (Vic). Its main purpose is to protect and promote human rights
149
implied rights
rights not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court
150
international declaration
a non-binding agreement between countries which sets out the aspirations (hopes) of the parties to the agreement
151
international treaty
a formal document, signed by countries (called states) or international organisations, in which they undertake to follow the law set out in the document and include it in their own local laws
152
locus standi
a Latin term meaning ‘standing in a case’; that is, the litigant must be directly affected by the issues or matters involved in the case for the court to be able to hear and determine the case
153
terra nullius
a Latin term meaning ‘empty land’; a false common law principle that Australia belonged to no one when the British first arrived in Australia to establish a colony in 1788
154
ultra vires
Latin term meaning ‘beyond the powers’; a law made beyond (i.e. outside) the powers of the parliament
155
discrimination
the unfavourable treatment of a
person based on
a certain attribute (e.g. age, gender, disability, ethnicity, religion or sexuality). Discrimination can either be direct discrimination or indirect discrimination
156
international treaty
a formal document, signed by countries (called states)
or international organisations, in which they undertake to follow the law set out in the document and include it in their own local laws
157
abrogate
to cancel or abolish a court-made law by passing an Act of Parliament
158
signatory
a state or organisation that has signed an international treaty to demonstrate a nation’s intent to adopt the treaty and incorporate it into their law
159
ratification
confirmation by a nation’s parliament
of its approval of
an international
treaty signed by its government. The parliament expressly passes legislation that requires them by law to adopt the various rights and responsibilities set out in the treaty
160
codify (codification)
to collect all law on one topic together into a single statute
161
freedom of political communication
the right of the Australian people to freely discuss and debate political issues, subject to certain restrictions
162
representative government
a political system in which the people elect members
| of parliament to represent them in government
163
judicial power
the power (authority) given to courts and tribunals to enforce the law and settle disputes
164
optional protocols
additional treaties in their own right that can be adopted and ratified by nations who are a party to the main treaty
165
federal legislature
a national law-making body; for example,
| the Commonwealth Parliament in Australia and the Congress in the US
166
Congress
the federal or national legislature or law- making body in the US
167
state legislatures
the state law-making bodies in the US (the equivalent of Australia’s state parliaments)
168
federal system
system of government in which a county is divided into states (each with its own parliament to make laws applicable in that state), in addition to having one central parliament (i.e. federal parliament) with the power to make laws that apply to the entire country
169
US Bill of Rights
a US law contained within the US Constitution that establishes the most important basic rights of the people and aims to protect them
