Unit 4 : AOS 2 Part 2

Question 1

The role of courts in law-making: precedent

Answer 1

• Magistrate Court can’t set precedent
• Precedent never sets when sentences
• sentences never precedent -as cases varies and mitigating and aggravating factors

Question 2

The Doctrine of Precedent

Answer 2

Precedent is a question of law in superior court that sets an example for the future.

Based on stare decisis - ‘to stand by what has been decided’

it ensures consistency in the legal system

Question 3

Setting Precedent

Answer 3

• Statement that judges make in their decisions set precedent.
• Questions of law set precedent
• Decisions of law in the case set the precedent

Question 4

Binding Precedents

Answer 4

• must be followed by lower courts in the same hierarchy when resolving disputes with SIMILAR HIERARCHY FACTS
  
  • ratio decidendi is the binding part

For Example: Grant V AKM

Question 5

Persuasive Precedents

Answer 5

• those that may influence a judge but which a judge is not obliged to follow.
• persuasive precedent may be created by a court from another hierarchy, by a lower court, by a court of equal standing or obiter dictum statements

Example: Donoghue v Stephenson -created law of negligence

Obiter dictum- ‘things said by the way’

Question 6

Dealing with persuasive precedent

Answer 6

Judges can either:
adopt or apply the precedent - follow it
affirm the precedent- agree with it
avoid the precedent- not follow it

Question 7

How precedent can be developed and stay flexible

Answer 7

How judges can avoid precedent:

Distinguishing: judge can avoid following a precedent where the material facts of their case are different to the case that created the precedent

Overruling (2 cases): superior court does not follow a precedent created by a lower court for a different case, it can overrule that precedent.

Doing so creates a new precedent and makes the previous precedent inapplicable

Reversing: when decision is appealed superior court could change the original decision. It relates to the same case in an appeal court. A new precedent is created and the old decision is no longer valid.

Disapproving: court expresses its dissatisfaction with an existing precedent.

If precedent is binding, court still has to follow it but the disapproval would encourage parliament ot review the relevant law or encourage a party to lodge an appeal