Relationship Between Civil And Criminal Flashcards
The relationship between civil and criminal law
The same behaviour can give rise to a civil dispute and a criminal case. For example, a person who hits another person can be charged with assault, and if this matter goes before a court, they may be found guilty and punished. The victim of the assault may also sue the offender for assault (trespass to the person). If the victim is successful, the offender may have to pay damages to the victim to compensate the victim for any injury suffered as a result of the assault.
Compensation order
A court that is hearing a criminal matter is able to order the defendant, on having been found guilty or convicted of an offence, to pay compensation to a victim. This is known as a compensation order.
Purpose of courts
The main purpose of courts is to settle disputes that arise in the community. A court’s primary responsibility is to apply existing laws to the facts in cases that come before the court and to make a determination on the case based on those laws.
Explain why courts need to have law making powers
Sometimes it is difficult for a court to apply the law in a particular case because the parliament may not have passed a law to cover the situation in the case before the court or the relevant law is unclear in its meaning. Because the court must still resolve the dispute, the judge will make a decision and provide reasons for the decision. This is the secondary role of courts; that is, law-making. As this type of law evolves through judicial decisions in legal cases, it is often referred to as judge-made law, case law or common law. Law made through parliament is known as statute law or legislation.
Explain precedent
When a court makes a decision in a case that is the first of its kind, the court is said to be setting a precedent. A precedent, which is a statement of law made through the courts, may be followed in similar cases that come before the courts in the future. These precedents then form part of the law.
Precedents made in higher courts are followed by lower courts in the same hierarchy. In this way the courts are able to ensure a consistent approach.
For example, if you were leaning back on your chair, your class teacher may decide to punish you because deliberate unsafe behaviour is unacceptable. For a consistent approach, other students found leaning back on their chairs should also be punished because their behaviour is also unsafe.
Ratio decidendi
Similarly, legal precedents are established through court decisions. The most important part of the judgment is the reason for the decision. This is known as the ratio decidendi. To ensure consistency in decision-making, courts ranked lower in the same hierarchy must follow the ratio decidendi of superior courts.
Binding precedent
A binding precedent is one that must be followed by courts lower in the same hierarchy. A precedent is considered to be binding on a new case when:
• the material facts of the precedent are similar to the material facts of the new case
• the precedent was set in a higher court in the same hierarchy as the new case.
A decision of the Supreme Court is therefore binding on decisions in the County Court and the Magistrates’ Court, but not binding on the Court of Appeal or the High Court. In this way there is consistency in the way cases are decided.
Persuasive precedent
Precedents from courts in other states or other countries are not binding on Victorian courts as the decisions come from courts outside the Victorian court hierarchy. A decision in another court hierarchy may have made an important statement of law and this may persuade a court to choose to follow the precedent. This precedent is therefore not binding, but persuasive. The court can choose whether or not to follow the earlier decision in deciding the case currently before the court.
Superior courts do not have to follow precedents set in lower courts, but may consider the decision in the earlier case as a persuasive precedent. Therefore, the High Court does not have to follow a precedent set in the Supreme Court, but may be persuaded by it in the decision it makes. Courts of the same level are persuaded and not bound by the decisions of its own court. Therefore, the Supreme Court is persuaded by previous decisions made by that court.
Obiter dictum
Sometimes a judge will make a statement that is not part of the reason for the decision, but is an important statement relating to the main issue of the case. This statement, known as an obiter dictum, a statement made by the way, can influence decisions in the future. An obiter dictum is only ever persuasive on all the courts, regardless of which court made the statement, as it does not form part of the reason for the decision.
Method 1 of developing or avoiding earlier precedent, distinguish method
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. Instead they may distinguish the present case from the previous case and make a different decision. For example, a person found in the front seat of a car, over the legal alcohol limit, with his keys in his hands was found guilty of being in control of a car while over the legal alcohol limit. The accused appeared to be about to drive the car. This case was distinguished from a previous case, where the accused was found asleep in the car with the engine running, trying to keep warm. He did not appear to be about to drive the car.
Method 2 overruled
A precedent can be overruled by a higher court in a different case. For example, the High Court may overrule a decision of a different case decided in the Court of Appeal. When a precedent is overruled, it no longer applies.
Method 3 reversed
A precedent can be reversed when the same case is taken to a higher court on appeal. For example, a case may have been decided in the Supreme Court and then taken on appeal to the Court of Appeal, where the decision is changed. When a precedent is reversed, it no longer applies.
Method 4 disapproving
In some instances a court is bound by a precedent but expresses its disapproval of the precedent. This is known as disapproving. This 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 that precedent.
Statutory interpretation
When a precedent is created, it often relates to the interpretation of words in an Act (known as a statute). This process, where a judge clarifies or interprets the laws written by parliament, is known as statutory interpretation. An Act is written in general terms to apply to all types of situations. Sometimes an unusual situation arises and the courts have to interpret words within the Act.
For example, a court may be required to interpret the word ‘traffic’ or ‘supply’ as it applies to drugs. Can a person who has a traffickable amount of drugs in her fridge, be charged with trafficking drugs even if the drugs belonged to a flatmate and she did not know they were there? A court would have to interpret the word ‘trafficking’ in the Act to decide if it included these circumstances.
2 other examples of when statutory interpretation may be necessary
• The Act may not include new types of technology, such as smartphones or tablets. The court may need to consider whether the use of a particular word was intended to include newer technology.
• A word may not be defined in the Act. Normally each Act of parliament has a ‘definition’ section where many words are defined. If a word is not defined, a court may need to consider what it
means.
