mid year exam prep Flashcards
1
Q
Distinguish between legal and non legal rules
A
Who creates the rule Who obeys the rule Who enforces the rule Who interprets the rule Available punishment
2
Q
Define the term; law
A
A law is a legal guideline or restriction that is established and enforced by authority, supported by a sanction, and aims to prevent individuals from harming other members of society,
3
Q
List the functions of a law
A
Regulate society and obtain function in everyday life
Establish boundaries for acceptable social behaviour
And resolved disputes
4
Q
List the characteristics of an effective law
A
Known to the community Accepted by society Stable Able to be changed Enforceable
5
Q
What is the aim of criminal law?
A
Apprehend, prosecute and punish offenders, and deter others from breaking the law
6
Q
What is the procedure of criminal law?
A
Police arrest a suspect and they are prosecuted in a court of law
7
Q
What is the burden and standard of proof?
A
Burden - falls on the prosecution
Standard - Beyond a reasonable doubt (meaning if the judge has even a small doubt in the prosecution’s theory, he/she cannot convict the accused)
8
Q
What is the outcome of a criminal case?
A
The accused is found guilty or not guilty
9
Q
What is the aim of civil law?
A
To return individuals whose rights have been infringed to their original state.
10
Q
What is the procedure of civil law?
A
The plaintiff sues the defendant in a court of law
11
Q
On whom does the burden and standard of proof fall?
A
Burden - the plaintiff
Standard - The balance of probabilities (which means whichever version of the story is most likely true).
12
Q
What is the outcome of a civil dispute?
A
The defendant is found liable or not liable.
13
Q
Define the division of powers
A
The division of powers refers to the separation of the roles of individuals in the legal system. This separation exists in order to avoid any one individual in the legal system obtaining more law-making responsibility than is deemed reasonable.
14
Q
List the 3 levels of powers and their relevant area
A
Judiciary - courts
Legislative - parliament (state and federal)
Executive -Senate
15
Q
How many seats in the house of reps?
A
150
16
Q
How many seats in the senate?
A
76
17
Q
What is the role of the house of reps?
A
To protect the rights of the people of Australia, create laws and govern society
18
Q
Role of the senate
A
Scrutinises the lower house, provides for the rep govt. and responsible govt. makes, reviews and passes laws
The states house: because there is an equal amount of representatives from each state, as is outlined in Section 7 of the commonwealth.
19
Q
seats in the legislative assembly
A
88
20
Q
seats in legislative council
A
40
21
Q
role of legislative assembly
A
Pass bills and form government at state level
22
Q
role of the legislative council
A
create, review and pass laws. Scrutinises assembly.
23
Q
Role of the Crown
A
Royal Assent - the signing of a proposed law, has the power to withhold royal assent (only available to GG)
Reserve powers - to be used to ensure the country is still governed. e.g. if the government was voted out of power, the GG would be forced to step in.
Executive council - responsible for creating rules and regulations with government bodies (such as the department of health) whilst acting in council.
24
Q
3 sources of law are:
A
Courts
Parliament
Subordinate bodies (Vicroads, VCAA etc)
25
define bi-cameral
the term bi-cameral refers to having two chambers or houses of a legislative body. for example, in Australia our federal government consists of an upper and lower house (house of representatives and the senate).
26
list the two main sources of law in Australia
Judges making decisions in superior courts
| Legislations made in parliament
27
role of the lower house
represent the views of the people
introduce and regulate laws
debate and pass bills
scrutinise the work of the government
28
how might parliament become aware of a need to change a law?
petition by the public
demonstration by the public (protest)
someone runs for parliament
pressure from the media
29
outline the law making process
an idea occurs due to various factors
Initiation
first reading (formal motion to introduce bill, listed for second reading)
second reading (compatibility checked with rights and responsibility act 2006, ministers second reading)
bill is debated
bill is examined (relevant amendments made)
BILL PASSES TO THE SENATE
Senate is able to make amendments, but these amendments are debated by the house of reps
Approval
Clerk of Parliament certifies the bill
Royal assent made by the GG
Law then applies
30
jurisdiction of the magistrates court
magistrates court - original jurisdiction (summary offences, committal proceedings, bail applications, issuing warrants), no appellate
31
jurisdiction of the county court
County court - original (indictable offences except murder, attempted murder, certain conspiracies and corporate offences) appellate (from the magistrates court against a conviction or sentence)
32
Supreme Court (trial division) jurisdiction
original - indictable offences (mainly murder)
| appellate - appeal on a point of law from the magistrates court
33
Supreme Court (court of appeal) jurisdiction
no original jurisdiction
| appellate - with leave on a point of law, sentence, severity (for defence) or leniency (for prosecution)
34
high court jurisdiction
original - federal matters
| no appellate
35
the difference against criminal and civil disputes
a criminal dispute would refer to someone committing an act of omission against society e.g. murder, shop stealing, assault etc
a civil dispute, however, refers to a dispute between two parties (private individuals, companies, governments)
36
define crime
a crime is an act of omission against an existing law, is harmful to an individual or society as a whole and is punishable by law
37
distinguish between a summary offence and an indictable offence
a summary offence refers to a crime that is not considered serious and can be heard by a magistrate sitting alone rather than with a judge and jury. an indictable offence, on the other hand, is described as a serious offence such as murder, manslaughter, rape etc. as a general rule, an indictable offence is any offence listed in the crimes act 1958. it is possible for indictable offences to be heard summarily.
38
explain the elements of a crime
mens rea - the guilty mind. for a crime to be committed, there must be proof that the accused was aware they were committing crime/doing harm
actus reus - the guilty act. for a crime to be committed, there must be clear evidence that an act of omission did occur.
39
define murder
A murder is an indictable offence that involves an individual taking the life of another on purpose, where the accused is over the age of discretion, has a sound mind and malice aforethought existed. that is to say, the accused must have planned to kill the victim for it to be considered murder
40
what is necessary to ensure a conviction of murder
to convict someone of murder, all 5 elements of the murder must be proven.
- the killing was unlawful (lawful killing refers to execution, a soldier killing another soldier in war, selfdefense)
- the accused is over the age of discretion (10 yr old)
- the victim was a human being
- the accused was of a sound mind
- the accused directly caused the victims death
- malice aforethought existed
41
what is the difference between murder and manslaughter
the difference between murder and manslaughter is the degree of malice. that is to say, if aforethought of causing the death of the victim was present in the accused person's mind, the death would be considered a murder. however, if, for some reason, the accused caused the death of the victim but did not have the intention of killing them (stabbed with the intention of hurting but not killing), the death could be argued as manslaughter
42
3 defences available to murder/manslaughter charges
```
mental health (accused must be of a sound mind)
malice aforethought was not present
unawareness (automatism or intoxication etc)
```
43
to convict an accused of assault you must prove
force was applied without lawful excuse
| and that force was intentional or reckless and resulted in bodily harm
44
distinguish between theft, burglary and robbery
theft refers to taking another persons property without consent with the intent of permanently depriving them of it. robbery, however, involves the added application of force on the person to force them to give up possessions or intimidate them. burglary, on the other hand, refers to the accused entering someones premises as a trespasser with the intent to steal, assault a person or damage the property.
45
what is the most common defence to the accusation of rape
the most common defence to the charge of rape was that the accused was unaware that the victim did not consent, although this must be reasonable
46
distinguish between a summons and a warrant
a warrant is an agreement signed by a judge or magistrate that allows a police officer to arrest an individual, usually the crime committed is also stated.
a summons, however, refers to an individual being called to appear before a judge or magistrate to be tried for an offence
47
outline 3 rights an individual has during police questioning
the right to silence
the right to a lawyer, family or friend
the right to refuse to have a photo taken
48
when are you required to provide your name and address to an officer?
when you have refused to come to a police and if they think you have committed an offence, are about to commit an offence or if they think you could help solve an investigation
49
what is bail?
bail refers to an individual who has been charged with a certain crime to be released from remand back into the community until their trial, for a certain price.
50
who is entitled to bail?
everyone is entitled to bail unless the police/judge/magistrate have reasonable evidence that the accused is going to reoffend, become a danger to themselves or society, or tamper with witnesses
51
when might bail be refused?
when the judge/magistrate believes that the accused may reoffend, is a danger to the community or to themselves, or when they might tamper with evidence
52
explain the presumption of innocence
the presumption of innocence refers to an accused person being presumed "innocent until proven guilty". It allows the prosecution to carry the burden of proof and prove they guilt of the accused, rather than the defence trying to prove the innocence of the accused
53
explain burden of proof
the burden of proof is a term used to describe what party is responsible for proving the guilt of the accused/defendant. In all cases, the burden of proof falls on the party bringing the case to court. In a criminal case, it is the prosecution, in a civil case it is the plaintiff.
54
explain the standard of proof
the standard of proof refers to the criteria for guilt or innocence to be proven in a case. in a criminal case, the standard of proof is "beyond a reasonable doubt", meaning the accused has to be proven guilty without a doubt. in a civil case, the standard of proof is the "balance of probabilities" meaning the judge/jury must decide what version of the story is most likely
55
outline the aim of criminal sanctions
criminal sanctions exist to deter people from offending crimes in the future, and to punish people who have committed crimes
56
outline 3 police powers that exist during questioning
the power to question suspects for a reasonable time
the power to question suspects and victims
the power to hold an identification parade
57
outline the process of a criminal trial in the county or supreme court
- case is called, appearances are entered
- arraignment (accused is named and offences are summarised. accused can plead at this time)
- jury is empaneled
- judge directs the jury
- opening addresses are made
- crown witnesses are called (examined-in-chief, cross-examined and re-examined)
- a no-case can be submitted at this time
- prosecution calls witnesses(examined-in-chief, cross-examined and re-examined)
- requests for particular direction to the jury is made
- closing addresses are given
- judge sums up the case and directs the jury
- jury goes into deliberation
- jury gives verdict
- pre-sentencing (if found guilty)
- sentencing
58
what is a jury?
a jury is a fact finding body that is given the task of deciding whether or not the accused/defendant in a case is guilty or not guilty based on the evidence presented in trial. a jury consists of 12 people, however multiple other prospective jurors are present throughout the trial in case a juror becomes ill or dies, and can take their place.
59
how is a jury selected?
a number of people are selected from the electoral role, all of which will receive a survey to determine their eligibility for jury duty. eligible jurors are then called for the empanelment process. this is where prospective jurors are presented to each party, both of which are able to challenge a juror. jurors who have not been challenged (excused), are empaneled and the trial can begin.
60
list three advantages of trial by jury
fulfils the right to a trial by peers
usually means community values are presented
aims to be bias-free
61
list three disadvantages of trial by jury
jury members can sometimes decide with emotion rather than facts, leading to an unfair verdict
jury members are not legally trained meaning they do not fully understand the legal system
causes individuals to be away from society for up to months at a time, inconvenient for families, businesses etc.
62
define imprisonment
the harshest penalty available for convicted criminals. involves being transferred into a detention centre for a period of time that is determined by the judge during sentencing. usually imprisonment is used as a last resort, however in some cases there is no other option.
63
define corrections order
a form of penalty that allows the criminal to stay in the community. They are able to do this by completing a number of hours of community service over a pre-determined amount of time.
64
define fine
refers to a monetary penalty expressed in penalty units that can be imposed with or without a conviction. penalty units change each year, currently 1 penalty unit is $155.46.
65
outline the procedure if an accused pleads not guilty in the Supreme Court
- jury is empaneled
- the judge directs the jury
- opening addresses are given
- crown witnesses are called, sworn in, examined-in-chief, cross examined, and re-examined
- a no-case may be submitted at this time
- the defence then calls their witness(es)
- directions to the jury can be requested at this time
- closing addresses are given
- judge will then direct the jury
- jury goes into deliberation
- jury gives verdict
- pre-sentencing takes place
- accused is sentenced or acquitted
66
key features of the adversary system
burden of proof falls on the prosecution/plaintiff
equal representation for each party
parties control their own arguments
67
3 advantages of the adversary system
oral evidence helps people tell whether someone is telling the truth or not
decision-makers are impartial (no bias)
both parties in control of their own case, makes them feel more satisfied with the trial if they are able to use whatever evidence they like
68
three disadvantages of the adversary system
parties are not trying to find truth, they are trying to win, can lead to a miscarriage of justice
oral evidence may cause people to look dubious when they are not
the legal expertise of judges is underused
