Term 1 Flashcards
What are some reasons we need laws?
- Society would be chaos
- The strong would dominate the weak
- No safety
- Rights would be trampled
- Life would be unfair
How are rules and laws different?
- Rules are laws when they are accepted and obeyed by members of society
- Laws regulate activities in society
- Laws create rights for members of society but also give them responsibilities
What is the rule of law?
The doctrine all people are equal before the law and that the government is subject to the law.
No one is above the law, everyone is equal underneath the law.
What are the Separation of Powers?
Legislature, Executive, Judiciary
What does legislature do?
Parliament - they make the law
Senate and House of Representatives
What does the judiciary do?
Interpret the law
Judges
What do the executives do?
Enforce the law
Police, hospitals, school, etc.
Who is the governor general?
The governor general is the person who approves laws on behalf of the king or queen.
What concepts are involved in the rule of law?
- Checks and balances on the use of government power
- The independence of the judiciary
- The presumption of innocence
- Access to justice
- The right to a fair trial
What is the highest court of Australia and where is it located?
The High Court of Australia. It is located in Canberra
What is the Law Reform Commission?
Source of advice to Government about which laws need to be amended or legislated to keep in step with society.
What is Assertion?
The law that exists at any given time reflects the values that society holds at that time.
What are stakeholders?
The people who are effected by the situation.
Who is the judge?
Presides over the court, ensuring a
trial or any other legal hearing
follows the law and due process. The judge also decided the appropriate sentence. Presides in District, Supreme and High Courts. Referred to as “Your Honour”.
Who is the defence council?
Advocates or argues on
behalf of a client. In a criminal
matter, the client is the defendant.
Is a lawyer (barrister). Experienced barristers can be appointed Queens Counsel.
Who is the interpreter?
Translator if someone doesn’t speak english.
What is a witness?
Called by the prosecution or
defence to give evidence. Remains
outside court until they are called to give evidence. Prior to giving evidence they take an oath or affirmation.
Who is the defendant?
The person accused of committing the offence.
Who is the crown persecutor?
A barrister who works for the
Office of the Director of Public
Prosecutions (ODPP). Presents the
case against the defendant.
Who is the Judge’s associate?
They assist the judge with a variety of tasks such as reading out the charges, taking the defendant’s plea and asking the jury for its verdict.
Who is the solicitor?
Helps prepare the case for the
prosecution or defence. For
defendants (and anyone
considering taking legal action) they
often the first point of call for legal
advice.
Who is the Jury?
Twelve people selected
at random from the community. They are an essential part of
Queensland’s criminal justice
system. Together, they decide if the
defendant is guilty or not guilty.
What is a correction services officer?
Supervises the defendant sitting in
the dock, ensuring they remain in
court
What is a bailiff?
A court officer who sits or
stands near the jury and judge’s
associate. Announces the beginning
or end of sessions, look after the
jury, collect documents or exhibits
for the judge’s associate or judge,
call witnesses to give evidence and
adminster the oath or affiration
What is a hung jury?
When a jury couldn’t come to one agreement of what should happen, they are called a hung jury
What is a majority verdict?
When the outcome is based on what the majority of a jury agrees on
e.g. 11 out of 12 rule in favour of a guilty verdict
What is a unanimous verdict?
When everyone in the jury has to come to one agreement.
Actus Reus
Guilty Act
Mens Rea
Guilty Mind
Indictable offence
A serious offence. Usually heard in the District or Supreme Court by a judge or jury.
Summary offence
A less serious offence
What are the two types of assault?
Battery (actual assult)
Threats
Standard of Proof
The prosecutor must prove beyond the reasonable doubt that accused is guilty (in criminal cases)
A plaintiff must prove on the balance of probability, 51% or over, that the accused is guilty (in civil cases)
Presumption of Innocence
Innocent until proven Guilty
Two aspects of the right to silence
The right of a suspect not to answer questions asked before trial (pre-trial silence)
The right of an accused person not the give evidence in his or her defence at trial (at trial silence)
Doctrine of the Precedent
The rule that if a court makes a decision, all courts below it have to handle that situation in the same way. This collection of legal rules and principles is referred to as the common law.
Common Law
Made by judges based on previous cases and trials to decide how they will judge the case before them
The Australian Constitution
A document that states what parliament does and what power it has.
Tort of Negligence
Breach of a person’s duty of another person to take reasonable care in the circumstances where such a breach of duty causes damage to another person
What is stalking?
An act intentionally directly against another person. It must be a ‘concerning’ act. The whole intent is to intimidate the victim. Max penalty = 7yrs
Who is a Prosecutor?
They seeks to convince the jury in a criminal trial that the accused is guilty. They work for the Director of Public Prosecutions (DPP)
What is Grevious Bodily Harm
The infliction of an injury upon another person that results in a permanent loss of physical function. max penalty = 14yrs
What is Assault?
Unlawful, intentional threat of force or infliction of injury on another person. Threats to seriously injure or kill another person are considered assault, but the threat has to create a fear that it would be carried out
What is serious assault?
The threat or infliction against the following:
-Police
-Person aged over 60
-Person in a wheelchair
-A corrections officer by a jail inmate
Max penalty = 7yrs
What is Manslaughter?
The unlawful killing of another in circumstances that do not amount to murder. Usually this is because the prosecution cannot prove an intention to kill or do grevious bodily harm
1. Killed
2. Another person
3. Unlawfully
What is murder?
Intent to kill (Mens Rae) is required for a murder charg. Max penalty = life imprisonment
1. Killed
2. Another person
3. Unlawfully
Onus of Proof
Responsibility of proving a disputed charge or allegation. It is the responsibility of the prosecutor/plaintiff
Sentencing Options
-Suspended sentences
-Indefinite sentencing
-Intensive corrections orders
-Community service orders
-Probation
-Fines, compensation, conferencing
Offences against the person
Offences directly against a person’s physical or mental health
1. Homocide
2. Sexual Offences
3. Assault Offences
4. Stalking
What is criminal law?
The set of rules which determines that a person who does such wrongs will be punished. Crime is simply defined as a wrong against society.
What are the fundamental principles of criminal law?
- Presumption of innocence
- Right to Silence
- Onus and Standard of proof
What is Bail?
Between being arrested and going to trial, most accused granted bail
e.g. the accused is freed on the provision they will appear in court
What is a crime?
- Something society thinks is morally wrong
- Something that interferes with another person
- Society could not function properly unless it was considered to be wrong and people who did it were punished
What is a Coroner’s Court?
Investigates the causes of death of people who die suddenly or suspiciously. Judges are almost always lawyers who have practiced the law for many years.
What is the Children’s Court?
Hears criminal charges against children under 18 yrs of age. There is also a children’s court in the district courts.
What are two main differences between criminal and civil courts?
Criminal:
-Beyond Reasonable Doubt
-Charges made by police
Civil:
-Standard of Proof
-Charges made by civilians
What is civil law?
Provides the rights and duties of individuals in how we relate to other individuals.
1. Parties in the matter
2. Standards of Proof
3. Remedies
4. Decision maker
What is the high court?
Has jurisdiction over constitutional matters. Is comprised of seven justices. Interprets Australia’s constitution
What are sexual offences?
Indecent touching or indecent exposure. Max penalty = life imprisonment
What are criminal offences?
Determines the punishment for an offender depending on:
-The nature of the offence
-Criminal history
-Age of offender
-And any other mitigating circumstances
What are the elements of Negligence?
- Breach
- Duty of Care
- Damage to the plaintiff must be caused
