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legal studies > semester one exam revision > Flashcards

semester one exam revision Flashcards

1
Q

what is the principle of justice of equality?

A

no discrimination, attention to vulnerabilities and equal protection doesn’t mean same protection

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2
Q

what is the principle of justice of access?

A

access to court processes, info, documents and legal personnel

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3
Q

what is the principle of justice of fairness?

A

independence and impartiality, no delays, full disclosure, opportunity to present, time to prepare and right to a lawyer.

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4
Q

what is social cohesion?

A

the willingness of members of society to cooperate with each other in order to survive and prosper

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5
Q

what is the rule of law?

A

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.

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6
Q

what is the role of law?

A

law provides guidelines on what is acceptable behaviour and sets expectations. laws protect the right of individuals and is fundamental to achieving social cohesion

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7
Q

what is the role of individuals?

A

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

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8
Q

the role of the legal system

A

the law is only effective when it is applied evenly and enforced regularly

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9
Q

what are the characteristics of an effective law?

A

known to the public, acceptable to the community, able to be enforced, clear to understand, must be stable and applied consistently

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10
Q

what is statute law?

A

law made by parliament via the legislative process. it is supreme to all other laws

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11
Q

what are the stages of a bill through parliament?

A

1 2 C 3 SH RA P

first reading, second reading, committee stage, third reading, second house, royal assent, proclaimation

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12
Q

what is delegated legislation?

A

parliament passes an act to allow other government body to create and enforce laws in their area of expertise

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13
Q

jurisdiction

A

authority of a government to govern or legislate

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14
Q

what is common law?

A

judge made law through court decisions. can be overridden by legislation

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15
Q

statutory interpretation

A

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

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16
Q

precedent

A

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

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17
Q

what is the victorian court hierarchy

A
  • High court of Australia (federal)
  • supreme court (Vic) – court of appeal and trial division
  • county court (vic)
  • magistrates court (vic)
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18
Q

what are the terms that ensure consistency and ratio?

A
  • ratio decidendi - the reason for the decision
  • stare decisis - stand by what has been decided
  • obiter dictum - other things said
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19
Q

what are the two types of precendent?

A

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)

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20
Q

how does parliament influence the courts?

A

parliament establishes the courts, codifies common law and abrogates common law

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21
Q

how does criminal law protect individuals?

A

by establishing crimes and punishments for people who injure or harm others

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22
Q

what are the purposes of criminal law?

A

to protect individuals, protect property, protect society and promote justice

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23
Q

how does criminal law protect society?

A

by setting standards of what behaviour isn’t tolerated by the community and legal system

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24
Q

how does criminal law promote justice?

A

by providing processes to deal with offenders and helping people feel that justice has been served

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25
Q

what is the presumption of innocence?

A

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

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26
Q

what protects the presumption of innocence?

A
  • 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
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27
Q

what are the two elements of a crime?

A

actus reus (a guilty act) and mens rea (a guilty mind)

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28
Q

what are strict liability offences

A

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

29
Q

what is the age of criminal responsibility?

A

person under 10 cannot be charged

30
Q

what is the principle of doli incapax

A

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

31
Q

what are the divisions of crime?

A
  • 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)
32
Q

types of offender crimes

A

organised crime and juvenile crime

33
Q

types of victim crimes

A

cyber bullying, hate crime

34
Q

what are summary offences

A

minor crimes not heard before a judge or jury and heard in magistrates eg drink driving and disorderly conduct

35
Q

what are indictable offences

A

serious crimes heard before a judge and jury in the county and supreme courts such as homicide, culpable driving and sexual offences

36
Q

what are indictable offences heard and determined summarily

A

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

37
Q

what are the participants to a crime?

A

principal offender, participant to a crime and accessory to a crime

38
Q

what needs to be proven for the crime of murder?

A

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)

39
Q

what is causation

A

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

40
Q

what is the eggshell skull rule

A

if a victim dies from an injury inflicted by the accused due to individual vulnerability causal chain is not broken.

41
Q

what are defences to homicide

A

self defence, mental impairment, involuntary actions

42
Q

what is the defence of self defence?

A

must be to immediate threat and in order to preserve life. belief it was necessary and perceived as a reasonable response must be proven

43
Q

what is the defence of mental impairment?

A

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

44
Q

what are involuntary actions?

A

automatism - automatic, involuntary actions
intoxication - accused proving they were involuntarily intoxicated

45
Q

impacts of homicide on offender

A

loss of freedom (imprisonment), hardship (mental, financial), shame, guilt, remorse

46
Q

impacts of homicide on victims

A

trauma, loss, damage, feeling (no) sense of justice, feeling (un)protected

47
Q

impacts of homicide on society

A

disturbs social cohesion, feel unprotected, dissatisfied with outcomes/legal system

48
Q

impacts of homicide on legal system

A

may (not) prompt change, may (dis)satisfy victims and society

49
Q

what must be proven for crime of culpable driving?

A

accused was driving a motor vehicle / had control (actus reus)
accused was driving recklessly, negligently or under the influence

50
Q

what is total effective sentencing?

A

imprisonment sentences, total of all sentence and whether they will be served concurrently or not

51
Q

what is the non-parole period

A

time prisoners must serve befire applying for parole. must be 12+months and 6 months less than imprisonment

52
Q

what is civil law?

A

defines rights and responsibilities of individuals, groups or organisations in society and regulates private disputes

53
Q

what is civil liability?

A

describes level of legal responsibility that a party has for a particular civil wrong

54
Q

purpose of civil law

A

to restore the plaintiff to their original position before they suffered any loss

55
Q

what is breach?

A

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

56
Q

what is limitation of actions?

A

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

57
Q

reason for limitation of actions

A

so disputes can be resolved efficiently and defendant does not have to face claim a significant time after events

58
Q

what are the limitation of actions for defamation and negligence?

A
  • defamation - 1 year
  • tort (injury) - 3 years
  • negligence, breach of contract - 6 years
  • action to recover land - 15 years
59
Q

what are the burden and standard of proof for criminal law?

A

prosecution and beyond reasonable doubt

60
Q

what are the burden and standard of proof for civil law?

A

defendant and on the balance of probabilities

61
Q

possible defendants of a civil case?

A

wrong doer, employers and other people involved (accessorial liability)

62
Q

what is negligence?

A

a person failing to take reasonable care and this failure resulting in loss or damage to another

63
Q

elements of negligence

A
  1. a duty of care was owed by defendant to plaintiff (legal obligation to avoid doing things that could foreseeably cause harm)
  2. defendant breached duty of care (defendant failed to do what reasonable person in their position would’ve done)
  3. plaintiff suffered injury, loss or damage
  4. the breach caused injury
    must be proven ::
    - injury was caused by breach
    - would not occur. if duty was not breached
64
Q

possible defences for negligence

A
  • contributory negligence (plaintiff contributed to harm caused by defendant)
  • assumption of risk (plaintiff accepted dangers of risk either expressively or by implication)
65
Q

defamation

A

written or oral statement that injures a person’s good reputation

66
Q

elements of defamation

A
  1. defamatory statement was made (must prove statement damaged reputation)
  2. statement is untrue
    (cannot be defamed if substantially true)
  3. statement is about plaintiff (whether a reasonable person having knowledge or circumstances would like statement to plaintiff)
  4. statement has been published (must be published or communicated to third party)
67
Q

possible defences of defamation

A
  • justification (statement is substantially true)
  • honest opinion (expression of opinion, not statement of fact)
  • innocent dissemination (unknowingly distributes defamation)
  • triviality (unlikely to be harmed)
68
Q

impacts of defamation on plaintiff

A

loss of reputation, emotional impact of the defamatory material, loss of wages and livelihood, unemployment

69
Q

impacts of defamation on defendant

A

costs in paying plaintiff, public humiliation

legal studies (2 decks)

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