Sources of Contemporary Australian Law Flashcards
What is common law
Body of unwritten laws made by judges in court to decide how they will judge the case, using precedent.
What does precedent mean
An earlier event (court cases decisions) that is regarded as an example to be considered in similar circumstances (similar court case hearings).
How are precedents made
If no past cases with similar circumstances exist, a new decision is made and therefore becomes a precedent for the future.
Common law is created by the courts and can persuade and bind future situations.
What does persuade and bind mean
Persuasive (Ratio Decidendi) - Occurs when a judge is influenced but
does not have to follow a decision set by another court. (Set by courts
in other jurisdictions, or of equal or lesser ‘rank’ in the heirachy).
Binding (Obiter Dictum) - Occurs when a court must follow the decision set previously by a higher court (Courts are bound by the decisions made by courts higher in the heirachy).
Where did common law originate and who from
King William in England
What system of trial does Australia follow
The adversarial system of trial
What is the adversarial system of trial
In a trial, two opposing sides of the case try to prove their version of the
facts and disprove the other side. An impartial judge or jury will give their decision.
What is an impartial judge
A judge not connected to any person or party involved in the dispute, therefore able to give a fair decision.
Who does the burden of proof lie with
Lies with the prosecution/plantiff.
What is the role of the defense
To cast elements of doubt on the prosecutions case.
Does the defense need to prove innocence
No because of the presumption of innocence.
What is the role of the accused person’s legal team
To highlight flaws in the prosecutions case.
What is the inquisitorial court system
In a trial, judges play an investigative role where they initiate inquiries, seek evidence, and questions witnesses.
Does the inquisitorial court system put emphasis on confrontation between lawyers presenting their parties case or written evidence and documentation, and information the judge has gathered before the trial
Written evidence and documentation, and information the judge has gathered before the trial.
What is the role of the High Court
Hears matters involving a dispute about the meaning of the Constitution, as well as final appeals in civil and and criminal matters from all courts in Australia. Is the highest and final court.
