semester one exam revision Flashcards
what is the principle of justice of equality?
no discrimination, attention to vulnerabilities and equal protection doesn’t mean same protection
what is the principle of justice of access?
access to court processes, info, documents and legal personnel
what is the principle of justice of fairness?
independence and impartiality, no delays, full disclosure, opportunity to present, time to prepare and right to a lawyer.
what is social cohesion?
the willingness of members of society to cooperate with each other in order to survive and prosper
what is the rule of law?
the principle that everyone in society, including lawmakers and leaders, are bound by the law and must obey the law. the law must be certain, clear and stable.
what is the role of law?
law provides guidelines on what is acceptable behaviour and sets expectations. laws protect the right of individuals and is fundamental to achieving social cohesion
what is the role of individuals?
individuals must be aware of the law and abide by it. before taking an important action an individual must find out what the law is and their responsibilities
the role of the legal system
the law is only effective when it is applied evenly and enforced regularly
what are the characteristics of an effective law?
known to the public, acceptable to the community, able to be enforced, clear to understand, must be stable and applied consistently
what is statute law?
law made by parliament via the legislative process. it is supreme to all other laws
what are the stages of a bill through parliament?
1 2 C 3 SH RA P
first reading, second reading, committee stage, third reading, second house, royal assent, proclaimation
what is delegated legislation?
parliament passes an act to allow other government body to create and enforce laws in their area of expertise
jurisdiction
authority of a government to govern or legislate
what is common law?
judge made law through court decisions. can be overridden by legislation
statutory interpretation
judges interpret the words/phrases of legislation when where is a dispute as to what the words of statute mean in regard to a particular case
precedent
judges develop new law on an issue that arises in a case before them, for which there is no existing relevant statute or common law
what is the victorian court hierarchy
- High court of Australia (federal)
- supreme court (Vic) – court of appeal and trial division
- county court (vic)
- magistrates court (vic)
what are the terms that ensure consistency and ratio?
- ratio decidendi - the reason for the decision
- stare decisis - stand by what has been decided
- obiter dictum - other things said
what are the two types of precendent?
binding precedent (must be followed by lower courts in the same hierarchy) and persuasive precedent (established in another state/country, set by lower/same court or was made in obiter dictum)
how does parliament influence the courts?
parliament establishes the courts, codifies common law and abrogates common law
how does criminal law protect individuals?
by establishing crimes and punishments for people who injure or harm others
what are the purposes of criminal law?
to protect individuals, protect property, protect society and promote justice
how does criminal law protect society?
by setting standards of what behaviour isn’t tolerated by the community and legal system
how does criminal law promote justice?
by providing processes to deal with offenders and helping people feel that justice has been served
what is the presumption of innocence?
accused person does not have to prove their own innocence and they are entitled to be treated as and considered to be innocent until proven guilty beyond reasonable doubt
what protects the presumption of innocence?
- burden of proof on prosecution
- right to silence
- right to legal rep
- standard of proof is beyond reasonable doubt
- right to appeal and apply for bail
- previous convictions are withheld until end of case
what are the two elements of a crime?
actus reus (a guilty act) and mens rea (a guilty mind)
what are strict liability offences
offences that do not require the mens re to be proven because the accused can argue crime was an honest mistake eg- speeding, selling alcohol to minors, driving a red light
what is the age of criminal responsibility?
person under 10 cannot be charged
what is the principle of doli incapax
a child cannot form mens rea for a criminal offence from 10-13 yrs old unless it can be proven child knew what they were doing at the time of the crime.
person 14 yrs + can be held criminally responsible
what are the divisions of crime?
- crimes against person (homicide, sa)
- property and deception offences (arson)
- drug offences (dealing/trafficking)
- public order and security offences (weapons, terrorism)
- justice procedure offences (perjury)
- other offences (dangerous driving)
types of offender crimes
organised crime and juvenile crime
types of victim crimes
cyber bullying, hate crime
what are summary offences
minor crimes not heard before a judge or jury and heard in magistrates eg drink driving and disorderly conduct
what are indictable offences
serious crimes heard before a judge and jury in the county and supreme courts such as homicide, culpable driving and sexual offences
what are indictable offences heard and determined summarily
indictable offences heard in magistrates court that can be punished by 10 yrs or less.
do this because max sentence magistrates can impose is 12yrs, no jury is used and reduces costs and delays
what are the participants to a crime?
principal offender, participant to a crime and accessory to a crime
what needs to be proven for the crime of murder?
the person was at criminally responsible age, the killing was unlawful (not self defence or war), malice aforethought was present (mens rea) and the offender was of a sound mind (no mental impairments at time of the crime)
what is causation
there must be an unbroken chain between act and harm. doesn’t need to be sole cause but a significant contribution. can be broken by natural events and bad medical treatment
what is the eggshell skull rule
if a victim dies from an injury inflicted by the accused due to individual vulnerability causal chain is not broken.
what are defences to homicide
self defence, mental impairment, involuntary actions
what is the defence of self defence?
must be to immediate threat and in order to preserve life. belief it was necessary and perceived as a reasonable response must be proven
what is the defence of mental impairment?
offender was suffering from mental impairment at time of the offence. if found not guilty will be imposed to a secure treatment order. must prove that they didn’t know what they were doing OR didn’t know it was wrong
what are involuntary actions?
automatism - automatic, involuntary actions
intoxication - accused proving they were involuntarily intoxicated
impacts of homicide on offender
loss of freedom (imprisonment), hardship (mental, financial), shame, guilt, remorse
impacts of homicide on victims
trauma, loss, damage, feeling (no) sense of justice, feeling (un)protected
impacts of homicide on society
disturbs social cohesion, feel unprotected, dissatisfied with outcomes/legal system
impacts of homicide on legal system
may (not) prompt change, may (dis)satisfy victims and society
what must be proven for crime of culpable driving?
accused was driving a motor vehicle / had control (actus reus)
accused was driving recklessly, negligently or under the influence
what is total effective sentencing?
imprisonment sentences, total of all sentence and whether they will be served concurrently or not
what is the non-parole period
time prisoners must serve befire applying for parole. must be 12+months and 6 months less than imprisonment
what is civil law?
defines rights and responsibilities of individuals, groups or organisations in society and regulates private disputes
what is civil liability?
describes level of legal responsibility that a party has for a particular civil wrong
purpose of civil law
to restore the plaintiff to their original position before they suffered any loss
what is breach?
key concept in most types of civil cases. plaintiff has to prove there has been a breach by the defendant. breach can mean a person has failed responsibility under tort law or they have contravened a term in a contract
what is limitation of actions?
the time period within which a wronged party must sue the wrongdoer. after this period defendant can raise that plaintiff is too late to obtain any remedy
reason for limitation of actions
so disputes can be resolved efficiently and defendant does not have to face claim a significant time after events
what are the limitation of actions for defamation and negligence?
- defamation - 1 year
- tort (injury) - 3 years
- negligence, breach of contract - 6 years
- action to recover land - 15 years
what are the burden and standard of proof for criminal law?
prosecution and beyond reasonable doubt
what are the burden and standard of proof for civil law?
defendant and on the balance of probabilities
possible defendants of a civil case?
wrong doer, employers and other people involved (accessorial liability)
what is negligence?
a person failing to take reasonable care and this failure resulting in loss or damage to another
elements of negligence
- a duty of care was owed by defendant to plaintiff (legal obligation to avoid doing things that could foreseeably cause harm)
- defendant breached duty of care (defendant failed to do what reasonable person in their position would’ve done)
- plaintiff suffered injury, loss or damage
- the breach caused injury
must be proven ::
- injury was caused by breach
- would not occur. if duty was not breached
possible defences for negligence
- contributory negligence (plaintiff contributed to harm caused by defendant)
- assumption of risk (plaintiff accepted dangers of risk either expressively or by implication)
defamation
written or oral statement that injures a person’s good reputation
elements of defamation
- defamatory statement was made (must prove statement damaged reputation)
- statement is untrue
(cannot be defamed if substantially true) - statement is about plaintiff (whether a reasonable person having knowledge or circumstances would like statement to plaintiff)
- statement has been published (must be published or communicated to third party)
possible defences of defamation
- justification (statement is substantially true)
- honest opinion (expression of opinion, not statement of fact)
- innocent dissemination (unknowingly distributes defamation)
- triviality (unlikely to be harmed)
impacts of defamation on plaintiff
loss of reputation, emotional impact of the defamatory material, loss of wages and livelihood, unemployment
impacts of defamation on defendant
costs in paying plaintiff, public humiliation
