revision Flashcards
the concept of rule of law- the pyramid
The rule of law is the legal tradition that we have laws that are followed and enforced. it includes equality before the law- law should apply to everyone equally regardless of status, checks and balances on the use of power- to ensure that government and individuals act according to the law, rights of the accused and victims, presumption of innocence- ensures individuals are punished only when found guilty, independence of the judiciary- ensures that there are fair trials, right to assemble- ensures people can gather and meet, both publicly and privately, freedom of speech, access to justice, knowing the law
explain the characteristics of an effective law
Law should be clearly known to the public -Individuals bear the responsibility of knowing the law, however, law-makers need to inform the public of any new laws that have been passed in parliament. Law must be acceptable to the community- n a democracy laws should reflect community values, Law should apply equally to all, Law should be capable of being enforced
explain the key differences between a rule and a law (provide example of the difference)
rules- have been specifically stated and regulate our lives in a more formal way than norms
laws- formal legal rules that are made by the government designed to govern people’s behaviour so that society can function properly.
furthermore, rules are not legally binding while laws are
Three features of a law that distinguish it from a custom or a rule are
1. Authority 2. Consequences 3. Regulation
explain the role and PURPOSE of the separation of powers doctrine in the Australian legal system
The principle of the separation of powers is that, in order to prevent oppressive government, the three powers of government should be held by separate bodies—the Legislature, Executive and Judiciary—which can act as checks and balances on each other and to avoid any group having all the power. The making of law is called legislative power and rests with the representative governments of the Commonwealth and States, when assembled as parliaments. The implementing or carrying out of law is called executive power and is handled by the Executive or Cabinet.
or Cabinet. The interpretation of law is called judicial power and
is carried out by the the courts and tribunals
explain the difference between onus of proof and standard of proof
Standard of proof is when it is not necessary for the prosecution to prove conclusively that the accused is guilty. The actual
standard of proof is proof ‘beyond reasonable doubt’.
The onus of proof is the task of the prosecution in a criminal trial to prove that the accused person is guilty of the offence with which he or she is charged.
Like if someone was being charged for manslaughter what is the standard of proof that a court would have to use- it is beyond reasonable doubt
If you were in a civil court and defamed someone who was famous- balance of probabilities- THIS IS IN CIVIL LAW
explain how the court hierarchy operates in the Australian legal system
The court hierarchy goes as follows:
High Court- the highest court in Australia
Supreme Court- the highest court in Queensland
Federal Court- cases involving constitution
Family Court- secures disputes relating to marriage and family affairs
District Court- serious criminal offences- rape, armed robbery
Federal Circuit court- bankruptcy applications and migration
Magistrates Court- hears 94% if court cases. has no jury.
Courts and Tribunals operate in a hierarchal system. This means that a court or tribunal is bound by any decisions of a higher court or tribunal.
how to classify offences (Indictable: crimes and misdemeanours and non-indictable: regulatory and simple) (offences against the person, property or public)
Indictable means these offences must come to trial on indictment, which is a written charge to an accused person to stand trial before
these courts with a jury. The more serious offences, such as doing grievous bodily harm and rape, are indictable offences.
Simple and regulatory offences are non-indictable and are always heard in a Magistrates Court without a jury.
Regulatory offences are set out in the Regulatory Offences Act 1985 (Qld) and must be finalised in the Magistrates Court
All regulatory offences carry fines as their maximum penalty Summary offences - also known as simple offences - matters that are tried by a magistrate; usually less serious offences, such as traffic offences and minor crimes - no right to have a trial by jury.
All crimes can be classified into a type of offence, including:
offences against the person
offences against property and
other offences.
Other offences - generally offences detected by the police rather than being reported by the public – for example drug offences.
explain reasonable suspicion in the criminal investigation process
A reasonable suspicion involves less than a reasonable belief but more than a possibility. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence.
to explain how right to silence contributes to just and equitable outcomes
Right to silence states that a person’s right to refuse to answer questions is protected, unless they are required under legislation to answer the questions. The right to silence reflects the notion that in a criminal case, the prosecution carries the burden of proof; it is not up to the accused to show their innocence. It also reflects the long-held idea that people should not be forced to answer questions regarding possible illegal behaviour.
explain what role police contribute to the criminal investigation process
Responsible for investigating reports of alleged crimes and enforcing criminal law in Queensland.
o Part of the executive arm of government and are given special powers separate from the legislative and judicial powers.
Police granted special powers beyond those of ordinary citizens to ensure they have lawful authority so that evidence collected is lawful and can be relied on (admissible) in a trial.
explain the difference between types of evidence collected by police
Oral Evidence- right to silence- suspect is allowed to not answer the question and police need to inform them of that. Confessions
Fingerprint Evidence- an impression of friction ridge detail from the palm surface of a persons hand. considered strong evidence.
Crime Scene Evidence- Police given special powers under PPRA to enter a potential crime scene and then have power to establish the crime scene
DNA Evidence- Collecting DNA
Police can collect with consent, by court order or with permission of a senior police office
Direct evidence- first hand observations (eyewitness accounts, confessions)
Circumstantial evidence- indirect evidence that can be used to imply a fact but does not directly prove it. example- finding a suspect’s gun at a crime scene is circumstantial evidence that the suspect was there.
explain the rights and responsibilities of police in relation to search and seizure of a person or property
searching of property- Police must obtain permission from a person in possession of the property to enter and search it.
If permission is refused they must obtain a search warrant
This is issued by a Justice of the peace, Magistrate, Supreme Court Judge
The search warrant entitles the police to identify and collect any physical and documentary evidence which are relevant to their investigation
S160 of the PPRA allows a police officer to search a property without a warrant when they reasonably believe that evidence will be lost, concealed or destroyed if the property is not searched immediately.
Searching a person:
The police can search a person without a warrant.
S30 of the PPRA lists a range of circumstances where this is acceptable eg. Some form of weapon, drugs, stolen property.
S624, s629, s630 of the PPRA contain provisions when dealing with a personal search, eg. Limiting embarrassment to the person, police officer of the same sex, reasonable privacy
Searching a motor vehicle:
S32 of the PPRA sets out provisions where a vehicle can be searched without a warrant.
explain the rights and responsibilities of suspects, accused and victims
The rights of persons after detention by police:
time limits for the period of questioning (see s403 and s404 PPRA);
a person having a right to communicate with a friend, relative or lawyer (s418 PPRA);
special provisions when questioning Aboriginal people and Torres Strait Islanders (s420 PPRA);
special provisions about the questioning of children (s421 PPRA);
special provisions with respect to questioning of persons with impaired capacity;
special provisions with respect to questioning of intoxicated persons (s423 PPRA);
a requirement to caution persons (s431 PPRA);
a right for a person with insufficient knowledge of the English language to an interpreter (s433
PPRA)
the right of a person to be electronically recorded (s435 PPRA
explain situations where search and arrest warrants are required
Police must obtain permission from a person in possession of the property to enter and search it.
If permission is refused they must obtain a search warrant
arrest warrant - if you failed to attend court when required. to search and seize property from your house, care, place of work etc. The
usual grounds for such an arrest warrant are that the police reasonably believe that to simply commence
proceedings would not be an effective means to bring the suspect or possible offender to court
explain police discretionary powers
Power afforded to police to make decisions based upon what seems to be the most appropriate action in the circumstances
Include decisions regarding what areas to patrol, what crimes to target, what reports to investigate, offences to pursue and when behaviours merit filing charges
The police collect evidence and they determine whether evidence is sufficient to charge somebody with an offence.
