Principles

Question 1

What is procedural law?

Answer 1

• The rules that regulate state conduct
• Designed for a fair and consistent use of procedure (procedural fairness/natural justice)
• Produce a civil order
• State of ordered relations

Question 2

What is substantive criminal law?

Answer 2

• Criminal offences (in crimes act)

- kind of conduct labelled as criminal in legislature and interpreted by courts

Question 3

What is procedural criminal law?

Answer 3

• Method to implement objects of substantive criminal law
• Fair trial (principle) - determine whether accused has committed an offence
• Distinction between pre-trial processes (focus on criminal investigation, police powers, dynamics of bail law) and trial process (court determines whether a person is guilty or not and what punishment they get)
• Influence whether a person will eventually be found guilty of a criminal offence

Question 4

Why is procedure important?

Answer 4

• Often referred to as the Rule of Law in action
• controls the balance between state power and the rights of the individual
• reflects adversarial nature of legal system

Question 5

What is a potential issue within procedure?

Answer 5

Discretion

• To what degree should the law regulate the exercise of discretion of the various actors to ensure that the law is applied consistently, have equality before the law, fair and consistent manner
• Has the law been administered without fear or favour
• Is criminal justice administered equally?

Question 6

Who are the parties in civil law?

Answer 6

individuals (inc. corporations) vs individuals (inc. corporations)

Question 7

Who are the parties in criminal law?

Answer 7

state v individuals

Question 8

Public or private interests in civil law?

Answer 8

private

Question 9

Public or private interests in criminal law?

Answer 9

public (harm to the social aggregate as the whole, community at large is damaged by criminal offending)

Question 10

What are the consequences in civil law?

Answer 10

damages, relief

Question 11

What are the consequences in criminal law?

Answer 11

punishment (can include a fines, imprisonment)

Question 12

What is the burden and standard of proof in civil law?

Answer 12

balance of probabilities

Question 13

What is the burden and standard of proof in criminal law?

Answer 13

beyond reasonable doubt

Question 14

What is the ‘balance of probabilities’ in civil law?

Answer 14

Denning J: it is ‘more probable than not’ that the facts occurred
Very simply - a version of events that is 51% more likely to have occurred than the alternative version

Question 15

What does ‘beyond reasonable doubt’ mean in criminal law?

Answer 15

• The highest standard of proof in our judicial system
• higher than in civil matters because of the potential for a finding of guilty to result in complete deprivation on one’s freedom (imprisonment)
• The prosecution must convince the court that based on the evidence, there is no other reasonable explanation other than that the accused is guilty
• It is not the job of the accused to establish that they are not guilty

Question 16

Who decides if the standard of proof has been met beyond reasonable doubt?

Answer 16

Jury

Question 17

What notion/principle/presumption underpins the standard of proof of beyond a reasonable doubt?

Answer 17

Presumption of innocence

Question 18

What are the Common Law principles underlying CJS?

Answer 18

1. Right to liberty
2. Presumption of innocence
3. No detention without legal cause
4. No punishment without conviction by due process
5. Right to a fair trial
6. Individualised justice and consistency in decision making
7. Special provisions for young people

Question 19

What is the guiding principle in criminal law?

Answer 19

Principe of legality

Question 20

What is the principle of legality?

Answer 20

the courts are guided by this principle to interpret statute so that it’s only when the parlt makes it expressly clear in unambiguous language to abrogate rights or liberties, those liberties persist

Question 21

Where is the criminal standard of proof codified?

Answer 21

S 141 of the Evidence Act 1995 (Cth)

Question 22

Where is the civil standard of proof codified?

Answer 22

S 140 of the Evidence Act (Cth)