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Legal Studies Unit 1 & 2 > Legal Studies Mid-Year Exam > Flashcards

Legal Studies Mid-Year Exam Flashcards

1
Q

Explain the role of individuals in achieving social cohesion and protecting the rights of individuals.

A

Individuals need to be aware of laws and follow these laws. They should especially be aware of and respect human rights.

  • Assisting the police with their investigation.
  • Reporting crime.
  • Using the legal system to resolve their disputes when their rights have been infringed.
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2
Q

Explain the role of laws in achieving social cohesion.

A

Laws are fundamental in establishing social cohesion.
- Set boundaries for behaviour
- Establish a framework in which people live and allow individuals to make choices
- Laws specify what we can and cannot do
- Apply to everyone
- Laws also protect rights such as the right to not be subject to discrimination.

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3
Q

Explain the legal system in achieving social cohesion.

A

The legal system is a set of methods and institutions which makes, administers and enforces laws. It includes courts, tribunals and the police.

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4
Q

Explain and list the principles of justice.

A

Fairness – impartial and just treatment without discrimination. In criminal law, this upholds the right to fair processes and hearings

Equality – everyone is treated the same before the law, free from bias, impartial decisions, etc.

Access – everyone understands their legal rights and pursues their case with access to institutions and approaches.

Charter of Human Rights and Responsibilities Act 2006

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5
Q

Explain and list the characteristics. of effective law.

A

C lear and understood – ambiguous, confusing or unclear cannot be followed
A cceptable (reflect societies values)
K nown – informed by changes
E nforceable – possible to catch and punish people who break a law
S table – if laws are constantly changing…

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6
Q

Explain common law.

A
  • Law made by the courts (judge-made law)
    Courts can make law in two situations:
    1. Interpreting the meaning of words in statutes (Statutory Interpretation)
    2. By deciding on an issue where there is no legislation or existing principle of law (precedent)
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7
Q

Explain statute law.

A
  • Law made by parliament
  • Statutes are also called Acts of Parliament or legislation.
  • All laws must pass through both houses of parliament and receive royal assent from the Queen’s representative.
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8
Q

Explain the relationship between the parliaments and the courts.

A
  1. Codification of common law: parliament confirms a precedent by passing an act of parliament that reinforces that principle.
  2. Statutory interpretation: parliament creates statutes and the court interprets the meaning of words in statutes or secondary legislation.
  3. Abrogation of common law: overriding or changing a common law principle. Parliament can do this by passing a law that specifically abrogates a common law principle that, for example, does not reflect society’s values.
  4. Ability of courts to influence parliament: courts can influence parliament through comments they make during court cases.
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9
Q

Describe the stage in the passage of a bill referred to as, ‘Royal Assent’.

A

The bill is presented to the Governor of Victoria for royal assent. Once royal assent is received, the bill becomes an Act of Parliament.

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10
Q

Explain persuasive precedent.

A

A precedent can be persuasive (influential but not binding) on a Victorian court.

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11
Q

Explain binding precedent.

A

A binding precedent is one that must be followed by courts lower in the same court hierarchy.

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12
Q

What is the Plaintiff?

A

A person who brings a legal (civil law) action.

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13
Q

What is the Defendant?

A

The party who is being sued (civil law).

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14
Q

What is the Accused?

A

A person or group of people who are charged with or on trial for a crime (criminal law).

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15
Q

What is the Prosecution?

A

Government official conducting of legal proceedings against someone (criminal law)

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16
Q

Distinguish between criminal and civil law.

A

Criminal law:
- Aim to protect society and sanction offenders.
- Sanction
- Police involved

Civil law:
- Aim to regulate conduct between parties and remedy wrongs
- Remedy

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17
Q

Outline the purposes of criminal law.

A
  • protect individuals
  • protect property
  • protect society
  • protect justice
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18
Q

How is the presumption of innocence protected?

A
  • The standard of proof is beyond a reasonable doubt.
  • The burden of proof is on the prosecution.
  • Police must reasonably believe a person has committed a crime before arresting them.
  • An accused has the right to legal representation.
  • An accused has the right to silence.
  • Generally, no previous convictions can be revealed in court until the sentencing.
  • A person convicted of a crime has the right to appeal.
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19
Q

Explain the age of criminal responsibility.

A

The minimum age a person must be to be charged with committing a crime.

Under 10 = cannot be charged with a crime.
10 - 13 = can if the prosecution proves the child knew their actions were wrong.
14+ = can be charged with a crime.

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20
Q

Identify and explain the elements of a crime.

A

Elements of a crime: A general principle of law states that there is no guilty act without a guilty mind.

Actus reus (guilty act): the action, inaction, or omission that the prosecution needs to prove in order for them to be found guilty of an offence.

Mens rea (guilty mind): Mental element of a crime/the person’s state of mind. The prosecution must prove they intentionally committed the wrongful action.

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21
Q

Explain strict liability.

A
  • No mental element only actus reus needs to be proven.
  • Many are summary offences eg. consuming liquor while driving
  • Some cases the accused argues it was committed due to a reasonable and honest mistake.
  • The elements of crime do not apply.
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22
Q

Explain the burden of proof.

A

Responsibility for proving the facts of the case.
- Civil = on the plaintiff
- Criminal = on the prosecution

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23
Q

Explain the standard of proof.

A

The strength of evidence needed to prove a legal case
- Civil = “balance of probabilities”
- Criminal = “beyond reasonable doubt”

24
Q

Distinguish between summary offences and indictable offences.

A

SUMMARY OFFENCES:
* Minor crimes
* Generally heard in the Magistrates’ Court
* The final hearing = hearing
* Magistrate

INDICTABLE OFFENCES:
* Serious crimes
* Tried in the County Court or Supreme Court
* The final hearing = trial
* Jury

25
Q

Outline the general defences to the crime.

A
  • Self-defence
  • Mental impairment
  • Duress
  • Sudden or extraordinary emergency
  • Automatism
  • Intoxication
  • Accident
26
Q

Explain the defence: Self-defence.

A
  • Believed that their actions were necessary to protect or defend themselves, and
  • Perceived their actions to be a reasonable response in the circumstances.
27
Q

Explain the defence: Mental impairment.

A

An accused may use the defence of mental impairment if, at the time of the offence, they were suffering from a mental illness and, as a result, they:

  • did not know what they were doing because they had little understanding of the nature and quality of their actions, and
  • did not know their conduct was wrong or could not reason, or think
    about, their conduct like an ordinary person.
28
Q

Explain the defence: Duress.

A

Reasonable belief that:

  • a threat of harm existed
  • the threat would have been carried out unless the offence was committed
  • committing the offence was the only reasonable way to avoid the threatened harm, and
  • their conduct was a reasonable response to the threat.
29
Q

Explain the defence: Sudden or extraordinary emergency.

A

Reasonable belief that:

  • there was a sudden or extraordinary emergency
  • their actions were the only reasonable way of dealing with the situation, and
  • their actions were a reasonable response to the situation.
30
Q

Explain the defence: Automatism.

A
  • while sleeping or sleepwalking
  • while suffering concussion
  • during an epileptic seizure, or
  • as a result of a medical condition or because of a side effect of the proper use of medication.
31
Q

Explain the defence: Intoxication.

A

Acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking drugs, or ingesting some other substance.

32
Q

Explain the defence: Unfit to stand trial.

A

Unable to:
- understand the nature of the charges laid against them
- follow the course of the trial, and instruct their lawyer.

33
Q

Define murder and the elements that must be proven to be found guilty of murder.

A

Murder is the unlawful killing of another person with malice aforethought by a person who is of the age of discretion and of sound mind.

  • The killing was unlawful
  • The victim was a human being
  • The accused was a person over the age of discretion
  • The accused caused the victim’s death
  • The accused was a person of sound mind
  • There was malice aforethought
34
Q

Identify the defence to murder.

A
  • Self-defence
  • Mental impairment
  • Duress
  • Sudden or extraordinary emergency
  • Automatism
  • Intoxication
  • Accident
35
Q

Explain the role of the law in developing the elements of and defences to murder.

A

Common law
* Murder is an old common law offence.
* The definition and elements of murder, and some of the defences to murder, have been established throughout the years by the courts.

Statute law
* The penalty for murder is established by parliament and set out in statute law.
* The Victorian Parliament can pass legislation at any time to change the law relating to murder.

36
Q

Identify the possible impacts of murder and provide examples.

A

IMPACT ON THE VICTIM AND THEIR FAMILY
- Loss of life
- Funeral costs
- Loss of household income

IMPACT ON THE COMMUNITY
- Cost of publicly funded medical treatment (if death was not immediate)
- Need for coronial services
- Increased need for police, fire and emergency services

IMPACT ON THE OFFENDER
- Guilt or shame in causing a death
- Legal costs
- Negative influences as a result of exposure to prison

37
Q

Define culpable driving causing death.

A

Culpable driving causing death is the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs and alcohol.

38
Q

Outline the elements needed to be found guilty of culpable driving causing death.

A
  1. The accused was the driver of a motor vehicle
  2. The accused culpably caused a person’s death while driving the motor vehicle
    • Driving recklessly
    • Driving negligently
    • Driving under the influence
      (drugs/alcohol)
39
Q

Outline the defences to culpable driving causing death.

A
  • The accused was not driving the vehicle
  • The accused’s driving was not culpable
  • Duress
  • Sudden or extraordinary emergency
  • Automatism
40
Q

Identify the possible impacts of culpable driving causing death and provide examples.

A

IMPACT ON THE VICTIM AND THEIR FAMILY
- Loss of life
- Disruption to family life
- Funeral costs

IMPACT ON THE COMMUNITY
- Need for coronial services
- Increased need for police, fire and emergency services
- Damage to community property

IMPACT ON THE OFFENDER
- Guilt or shame in causing a death
- Legal costs
- Damage to, replacement or impounding of a vehicle

41
Q

The role of the law in developing the elements of and defences to culpable driving causing death

A

Common law
- No long/slow history
- Clarifying driving laws including the statutory elements
- Automatism - common law defence

Statute law
- Statutory offence under section 318 of the Crimes Act.
- Refined by courts through statutory interpretation.
- 2004 = Victorian Parliament created dangerous driving causing death - an intermediate offence between culpable driving causing death and dangerous driving.
- Reform of indictable driving offences has been limited to changing the maximum penalty.

42
Q

Provide examples of indictable and summary offences.

A

SUMMARY OFFENCES:
- Drink-driving
- Graffiti
- Speeding

INDICTABLE OFFENCES:
- Murder
- Manslaughter
- Sexual assault

43
Q

Explain the differences between being an accessory to a crime and a principal offender to a crime.

A

PRINCIPAL OFFENDER:
A person who commits the actus reus (guilty act) and has mens rea (a guilty mind) of an offence.

ACCESSORY:
An accessory is a person who knowingly assists another person who has committed a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished.

44
Q

Describe the purposes of civil law.

A

Create social cohesion: provides guidelines for acceptable behaviour - didn’t exist people exploit or abuse the rights of others.

Protect the rights of individuals: protected from false statements, contracts and harm.

Provide a means to seek compensation: provides a way to return the person harmed as far as possible to the position they were in before the harm.

45
Q

Explain the types of civil law.

A

Negligence/tort - breaching duty of care

Defamation/tort - published material causing harm to someone’s reputation

Family law

Wills and inheritance laws

Contract law

Employment laws

46
Q

Explain the elements of negligence.

A
  1. Duty of care: The risk was foreseeable, the risk was significant, and a reasonable person would take precautions.
  2. Breach: Defendant failed to do what a reasonable person would do.
  3. Causation: Must be proven that the injury was caused by the breach and that it would not have occurred if not for the breach.
  4. Injury, loss, or damage: Plaintiff can only receive remedies if it’s proven they suffered an injury, loss, or damage.
47
Q

List the rights negligence protects.

A
  • Protect individuals from harm
  • Protect people from wrongful conduct
  • Allows parties to seek compensation
48
Q

Define Negligence.

A

A person failing to take reasonable care and this failure resulting in loss or damage to another.

49
Q

Explain the possible defences to negligence.

A

Contributory negligence: plaintiff helped cause harm or is partly to blame.

Assumption of risk: Voluntary acceptance of the risk of injury.

50
Q

Outline the elements of defamation.

A
  1. The statement is defamatory: lowers the reputation
  2. The statement is untrue: Plaintiff = not defamed if substantially true
  3. The statement refers to the plaintiff
  4. The statement has been published/communicated by the defendant
51
Q

Identify the rights defamation protects.

A
  • Freedom of expression
  • Considered of good character and reputation
  • Reputation protected
  • People whose reputations have been harmed seek remedies
  • Quick and effective dispute resolution.
52
Q

Define defamation.

A

An untrue statement that lowers a person’s personal or business reputation in the community.

53
Q

Explain the possible defences to defamation.

A
  1. Truth (Justification/Contextual truth): Substantially true.
  2. Absolute privilege: Free communication of information is considered to be so important.
  3. Publication of public documents: Driven by a legal or moral duty and the matter was a fair copy or summary of a public document.
  4. Fair report on proceedings of public concern
  5. Qualified privilege: A legal or moral duty. (no malice)
  6. Honest opinion: The matter must be of public interest and the opinion must be based on proper material.
  7. Innocent dissemination: Unknowingly distributes defamatory information.
54
Q

Explain the limitation of actions.

A

The time within a wronged party must sue the wrongdoer. The reason for this is cases are resolved efficiently, the defendant is protected, and to ensure no risk of the reliability of evidence.

Negligence: 3-12 years after the conduct of the defendant

Defamation: 1 year

55
Q

Possible impacts of defamation.

A

On the plaintiff:
- Loss of reputation
- The emotional impact of the defamatory material
- Loss of wages and livelihood

On the defendant:
- Need to pay costs
- Need to sell assets
- Public humiliation

56
Q

Possible impacts of negligence.

A

On the plaintiff:
- Loss of life
- Serious injury
- Loss of wages and livelihood

On the defendant:
- Need to pay costs
- Public humiliation
- Physical injury

57
Q

Explain why you are able to sue two defendants in a case.

A

Vicarious liability in Australia allows individuals to sue multiple defendants, including the employer of the wrongdoer, as they have control over their employee’s activities.

Legal Studies Unit 1 & 2 (12 decks)

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