The Judiciary Flashcards
What are the roles of the High Court?
- Acts as the highest court of appeal
- Protects the rights of Australians
- Acts as a ‘check’ on Cth’s law-making powers
What is an express right?
Rights that are written/embedded in the Constitution that cannot be changed unless a successful referendum is passed.
Give 5 examples of an express right.
- Freedom of Religion
- Acquisition of property on just terms
- Trial by jury for indictable offenses
- Trade between States shall be free
- The right to not be discriminated based upon states of residence
How does the High Court act as a check on Parliament’s power.
If an individual with standing claims that Parliament has limited an express or implied right, HCA interprets statute + reviews problematic law to see if in conflict with Const.
If found to, law is invalidated by HCA bc ultra vires.
What is original jurisdiction?
The authority or legal power of a court to hear the case at the first instance.
What is appellate jurisdiction?
The power of a court to hear and determine a matter on appeal.
Define appeal
An attempt to seek a review of the trial judge’s decision from a more superior court to correct/reverse the decision that was made.
What are the two primary roles of courts?
- Enforce the law
- Settle disputes in a peaceful way that reflects the VVS of the community.
How do courts enforce the law?
- Grant or deny bail
- Decide to hold the accused in remand
- Issuing warrants to police e.g. search
- Allowing the accused to return to the community with certain conditions
How do courts settle criminal disputes?
- Conduct a trial
- Apply the law, rules of evidence and procedure in the trial
- Instruct the jury
- Ensuring that both sides receive equal opportunity to present their case
- Handing down the appropriate sanction if the accused is found guilty OR dismissing the case if there is insufficient evidence
What is the role of the Magistrates Court and give examples?
Hear summary offences (90% of all cases)
e.g. - Jaywalking
- Traffic infringements
- Minor drug possession
And to preside over committals
What is a Committal?
A series of hearings that occur when an accused has been charged with an indictable offense.
What is the role of the Children’s court and the Koori court?
C: hear criminal charges against anyone under 18 (Criminal div. + Family div.)
K: for FN ppl who have pleaded guilty to offenses that can be heard in M.Courts or CC.Court > to recognise systemic bias and raise cultural awareness.
Involves elders who participate and provide sentencing recommendations
What is the role of the County Court?
Original Jurisdiction: Hears all but the most serious cases e.g. robbery, theft, arson, drug possession, armed-robbery
Appellate Jurisdiction: Can hear appeals against convictions and sentencing from M.Court in criminal matters.
What is the role of the Supreme Court?
Original Jurisdiction: Trial Division deals with the most serious criminal cases e.g. murder, treason, manslaughter
Appellate Jurisdiction: Court of Appeals Has the power to hear and determine appeals from the CC.Court and Trial Div. of Supreme Court
Outline the Victorian court hierarchy (Highest to Lowest).
- Supreme Court - Court of Appeals and Trial Division
- County Court
- (Koori Court)
- Magistrate’s Court
- (Children’s Court - Criminal Division and Family Division)
What is the role of a Magistrate?
They perform a similar function to a judge.
- Oversee the conduct of a hearing for summary offences
- Determine the verdict of a case (if accused pleads not guilty)
- Determine appropriate sanction
- Hear applications for warrants and bail
What is the role of a judge/justice?
Preside over hearings of indictable offences
- Ensuring both parties obey rules of evidence and procedure in court
- Protect the rights of victims + witnesses
- Ensure both parties receive equal opportunity to present their case
- Sum up evidence + explain the law to the jury
- Determine an appropriate sanction if the accused pleads/is found guilty
What is the role of the prosecution?
A party that acts on behalf of the Cth/State.
Their role is to prove the accused is guilty beyond a reasonable doubt.
- Start the trial with an opening address
- Present evidence at trial
- Determine which witnesses to call
- Make submissions to court in relation to an appropriate sentence for the accused
- Meet the standard of proof required to prove the guilt of the accused
What is the role of the accused?
Is the party who is charged with a criminal offence.
If they plead guilty > proceed to sentencing and avoid trial
If they plead not guilty > trial or hearing will commence
They can weaken the prosecution’s case thru:
- Presenting evidence
- Presenting a defence
- Remain silent
- Calling witnesses
What is the role of the jury?
People chosen at random from the electoral role.
- Listen to all evidence presented by both parties
- Consider and weigh up evidence presented
- Reach a decision based on the evidence and applying the relevant law
What are the benefits to a jury?
- Impartial and Independent (cannot take into account personal characteristics of the accused - decision based only on evidence)
- Spreads the decision making process (eliminates bias/discrimination and reduces unjust decisions)
- Promotes trust + transparency in the community (ppl. are entitled to know how justice is carried out / ensures judicial officers are accountable)
What are the weaknesses of a jury?
- Don’t need to provide a reason for their decision (decision could be based upon biased attitudes but unlikely to be known)
- Delays and extra costs (Empanelling takes time, jurors need legal procedure explained, need time to consider facts and make a decision?
- May not understand legal jargon (laypeople: decision can be based upon limited understanding of elements which limits justice)
Define precedent.
A principle established in a legal case that should be followed by courts in future cases where the material facts are similar.
Define stare decisis.
(Latin: ‘let the decision stand’) Whereby consistency is ensured through the following of previous decisions when similar matters arise in the future.
Define Ratio Decidendi.
(Latin: ‘reason for the decision’) The reasoning behind the decision the judge arrived to
Define obiter dicta.
(Latin: ‘statements made by the way’) Comments made by the judge in a particular case that comment on the context/entertain considerations of the law outside of the facts of their case that may be persuasive in guiding future cases
What is binding precedent?
Precedent that must be followed because:
- Set by a higher court
- In the same court hierarchy
- Pertains to a matter of similar fact
What is persuasive precedent?
Precedent that does not have to be followed because:
- Set by another state/country (different court hierarchy)
- Set by a lower court
- Pertains to different material facts
What was the precedent established in Donoghue v Stevenson?
- Duty of care is owed to a neighbour
- A neighbour is anyone that can be directly affected by your acts or omissions
- Manufacturers owe their consumers a duty of care
- DoC is breached if actions of manufacturers cause harm/loss to their consumers and those actions are reasonably foreseeable to cause harm/loss
- If the breach causes harm/loss to the consumer, manufacturers are liable.
Define judgment
A written decision handed down by a judge after resolving a legal matter.
Define common law.
The body of law that is derived from judicial reasoning and decisions in past cases. It requires a court to create legal principles to resolve the dispute at hand, which will then be followed in future like-cases.
Define statutory interpretation.
When judges apply or generate meaning to words within statute law to resolve a dispute.
What are three reasons legislation may need to be interpreted?
- Unclear wording
- Changing nature of words
- Clarify words
Why does unclear wording mean legislation has to be interpreted?
Legislation is created to suit a broad range of circumstances, so the wording is often broad which can create confusion.
Why does the changing nature of words mean legislation has to be interpreted?
The nature of words can change as society changes and technology develops. Parliament may not be able to efficiently pass reforms on urgent issues (older laws) so courts must update the meanings of words and list reasonings for how those laws apply in future judgments.
Why does the clarification of words mean legislation has to be interpreted?
Legislation may have been drafted to cover emergency situations and there may have been a wording mistake. BUT courts cannot change the wording of statutes - interpretations of laws can be binding or persuasive.
What is the effect of statutory interpretation?
- Narrowing of meaning > possible meanings are excluded and scope of accepted interpretations is made smaller.
- Broadening > possible meanings are expanded to include more meanings or examples.
