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Law and order > topic 4 & 5 > Flashcards

topic 4 & 5 Flashcards

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Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

What is civil law?

A

private disputes between individuals it protects individual rights and responsibilities.

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2
Q

Difference between criminal and civil?

A

In criminal law, someone is alleged to have broken the law
In civil law no one has committed a crime however they are alleged to have infringed on the rights of someone else.

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3
Q

Reasons for civil law

A

Protect our rights
Impose duty on individuals not to harm or infringe upon their neighbours rights.

Provides a solution if our rights are breached

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4
Q

Standard of proof

A

Criminal trial - beyond reasonable doubt
Civil - balance of probabilities, plaintiff has to prove their version of the case is more than 50% likely to be true

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5
Q

Burden of proof -

A

Whose job it is to prove something
Criminal - prosecution
Civil - plaintiff

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6
Q

Civil vs criminal possible outcomes / findings

A

Criminal - guilty, not guilty, no decision ( hung jury )
Civil - defendant liable or not liable for compensation.

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7
Q

Civil court hierachy -

A

High court
Supreme court appeals division (Court of appeal )
Supreme court - trial division
county court
Magistrates court

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8
Q

High Court

A

original jurisdiction: Very limited
appellate jurisdiction: Appeals from the Court of Appeal

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9
Q

Supreme Court - appeals
(Court of Appeal)

A

original civil jurisdction: none
appellate civil Jurisdiction: appeals from the trial division and county court

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10
Q

Supreme Court - trials

A

original jurisdiction: unlimited
appellate civil jurisdiction: appeals from magistrates court

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11
Q

county court

A

original civil jurisdiction: Unlimited – no minimum or maximum $ amount
- hears moderate cases
appellate civil jurisdiction: none

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12
Q

Magistrates’ Court

A

original jurisdiction: Only claims up to $100,000
appellate civil jurisdiction: None

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13
Q

Jurisdiction

A

The power of a Court to hear a case is called its jurisdiction – the range/extent of its power/authority
Jurisdiction can be limited by

Geography –
Laws –
Cases – appelate/original/money restrictions
Remedy -

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14
Q

Courts have 2 types of jurisdiction

A

Original: The power to hear cases for the first time
Appellate: The power to hear appeals

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15
Q

Why is there a court hierachy?

A

Specialisation and expertise/experience
Efficiency saves time and money
Appeals

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16
Q
A
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17
Q

Appeals

A

If you do not like the decision of the court in the first instance, you can appeal to a higher court.
Without a hierachy..
There would be no courts to whom you could appeal as no higher courts exist
You would not know to whom you could appeal to

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18
Q

Specialisation

A

Courts can develop expertise in hearing and resolving certain types of disputes
Promotes consistency
All about the outcome, getting the fairest and most just outcome.

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19
Q

What is a precedent?

A

A judgement of a court that established a legal principle or point of law

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20
Q

Legal principles

A

Judges can establish legal principles that other courts have to follow in later cases, common law is all of the legal principles established by courts
- Like cases must be treated alike
- Courts value predictability

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21
Q

Three elements of the doctrine of precedent

A

All inferior courts are bound to follow the decision of superior courts
Courts only have t follow decisions made by superior courts in the same hierarchy
Cases must involve the same material ( important ) facts

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22
Q

Binding precedent

A

Decisions made by superior court is binding on all inferior courts, in that jurisdiction where the cases involve materially similar facts

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23
Q

Persuasive precedent

A

Persuasive could be:
Decision of court in another hierarchy like the NSW ruling
Decision of equal or lower court, in the same court
They may influence but you do not need to follow them

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24
Q

Nuisance - elements

A

Element that the plaintiff needs to establish on the balance of probabilities

There is action that subbstaintially interferes with the enjoyment of property
The nuisance is unreasonable
Damage or harm was caused
Eg. pain, suffering, inconvinience

25
Q

Nuisance

A

Civil law protects our enjoyment of our property - specifically the property we lawfully occupy.
If this right is breached, the lawful property occupier can sue for nuisance.

26
Q

What is the hardest part to prove in nuisance?

A

Elements #1 and #2 - is the annoyance unreasonable, is it substantial

27
Q

Substantial

A

needs to be significant, has to happen more than once

28
Q

Unreasonable -

A

courts will consider lots of different factors like
Type of interference
How long it has existed
Time of day
How often it occurs

29
Q

Example of nuisance

A

Noise
Smoke
Smell
Golf balls

30
Q

Defamation - elements

A

Defendant published something about the plaintiff
The thing that was published was untrue
As a result of the reputation, the plaintiff suffered loss of reputation

31
Q

What is negligence

A

Negligence is all about looking out for other people
The law imposes a legal obligation on you to keep an eye for your neighbour

Your neighbour is anyone who you can reasonably foresee might get injured if you do not take care.

32
Q

Negligence elements -

A

If a plaintiff sues a defendant for negligence, the plaintiff has to prove three things on the balance of probabilities
1. the defendant owed the plaintiff a duty of care
2. The defendant breached the duty of care
3. The breach of the duty of care caused harm or loss to the plaintiff

33
Q

Negligence - duty of care

A

A duty of care is owed to anyone who could be reasonably foreseen to be injured by the acts of the defendant

34
Q

Reasonably foresee -

A

always depends on the fact of the case
foreseeable that harm could come their way

35
Q

Negligence - breach of duty

A

The defendant failed to exercise a reasonable standard of care.

36
Q

Negligence - breach causes a loss to the plaintiff

A

Plaintiff must show the loss was caused by the acts of the defendant

37
Q

Advanatges and disadvantages of the death penality

A

Advantages
Saves money
Eye for an eye
Deterrance
Community protection
Disadvantages
It is inhumane
What if the defendant was not guilty
Disproportionately imposed to marginalised groups

38
Q

Who is eligible for youth diversion?

A
  1. Offender must be a first time offender
  2. Charge must relate to a minor crime
  3. Offender must acknowledge they did wrong
39
Q

What might offenders have to do in youth diversion?

A

Write a letter of apology
Counseling
Participate in activities that promotes engagement and teamwork

40
Q

What is youth diversion?

A

pre-plea option that provides an opportunity for young people appearing before the criminal division of the Children’s Court to complete a diversion plan

41
Q

what does a youth diversion allow you to do?

A

Accpet responsibility
Complete a diversion program
Have charges against them dropped
Avoid negative stigma associated with a criminial record

42
Q

Why are youth diversions good?

A

After the program children are encouraged to get on with their lives, address issues underlying behaviour + grow into responsible productive citizens
someone good who did something bad to avoid receiving a criminal record

43
Q

Youth diversion criminal record

A

Offender avoids getting disclosable criminal record
There is still a record of incident but is not disclosable.

44
Q

Purpose of imprisonment

A

Punishment
Deterance
Rehab
Denunciation
Community protection

45
Q

What is parole?

A

the release of a prisoner to supervision in the community after he/she has completed a part of his/her sentence in an institution

46
Q

What is community corrections order?

A

A community corrections order is a supervised sentence served in the community

47
Q

What does supervised mean?

A

Supervised means a department of corrections officer looks after and ensures they adhere to the order made by the judge

48
Q

Purpose of community corrections order?

A

A community corrections order (or CCO) is a flexible order that allows you to serve your sentence in the community and has terms and conditions.

49
Q

Three requirements of being eligable in a cco?

A

Crime cannot be too serious or too minor
Court assesses if the criminal is stable
Criminal must agree

50
Q

Can CCO’s be imposed with other fines or imprisonment?

A

Yes

51
Q

Mandatory conditions of a cco

A

Cannot leave victoria without permission
Must notify their case manager of any changes in address
Must report frequently to the officer and adhere to there directions
cannot breach conditions of CCO + cannot reoffend

52
Q

Other options tailored to the individual for CCO’s -

A

not mandatory
Unpaid community work
Treatment and rehab programs
Area exclusion. Curfew, non - association
Officer meets frequently - supervision

53
Q

What is a fine?

A

A fine is a financial penalty imposed on an offender
Fines are the most common penalty

54
Q

Fines that are issued

A

As a sanction by the court

A fine can be issued by police and other authorised government officials

55
Q

Doctrine of precedent

A

the when a legal principle has been established by a superior court it should be followed in other similar cases by that court and other lower courts.

56
Q

plaintiff

A

a person who brings a case against another in a court of law.

57
Q

damages

A

Damages is a sum of money which is awarded by the courts for the purpose of replacing the monetary value of property or rights which have been lost or damaged,

58
Q

defendant

A

person who is charged with a offence.

59
Q

types of sentences

A

imprisonment.
diversion
community correction order.
fine.
death penalty

Law and order (4 decks)

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