VCE Legal Studies AOS 1 warm up questions Flashcards
analyse how the doctrine of precedent affects the ability of courts to make laws
The doctrine of precedent is a judicial process whereby the ratio decidendi behind decisions in courts of superior record must be following in lower courts in the same court hierarchy in cases with similar material facts. This implies that binding precedent can be somewhat restrictive in the ability of lower courts to adopt a broad or new interpretation of the law, in cases of similar material facts to existing decisions made in higher courts. However, judges can distinguish between the material facts of a case, as was done in Davies v Waldron which enables them to depart from existing reasoning and create new precedent. Thus, this ability of lower courts to distinguish between the material facts of cases where binding precedent has already been created in higher courts, indicates that lower courts can make law to some extent.
explain one difference between an indictable offence and a summary offence
One difference between an indictable offence and a summary offence is the severity of the offending. Indictable offences are considered to be severe offences, causing a significant impact. These involve murder, rape, homicide or commercial drug offences, and are contained in the Crimes Act and heard in higher courts. Whereas summary offences are relatively minor in comparison and have a far less detrimental impact than indictable offences. Summary offences include theft or minor assault; these are contained in the Summary Offences Act and heard in lower courts. As such, the severity and detrimental impact indictable offences have, in comparison to the less severe impact of summary offences is a key difference.
outline one reason why the court hierarchy is needed in determine criminal cases
The court hierarchy is necessary in determining criminal cases to enable the operation of the doctrine of precedent. The doctrine of precedent is the common law principle by which the reasons for the decisions of higher courts (ration decidendi) is binding on courts ranked lower in the same court hierarchy where the material facts are similar (stare decisis). The formation of precedent is necessary in the role of courts in law making (common law) and is applied in determining criminal cases. Without the existence of the court hierarchy – courts ranked from low severity to high severity – the doctrine of precedent would not be operational; thus, it is necessary in determining criminal cases.
Outline the judge’s responsibilities in a civil trial.
The judge’s responsibilities in a civil trial can include things such as directing the jury to ensure that they are best able to understand legal terminology and proceedings. This could include explaining the meaning of the ‘balance of probabilities. The judge will also ensure conformation/adherence to rules of evidence and procedure, such as declaring hearsay evidence inadmissible.
Analyse how the High Court acts as the guardian of the Australian Constitution.
The High Court acts as a guardian of the Australian Constitution through its determining of disputes relating to the Constitution and its interpretation of its wording.
If a parliament creates a law that is outside of its constitutional law-making powers, the High Court can declare this legislation ultra vires. This illustrates how the High Court guards the Constitution, ensuring that laws that contradict it are deemed invalid and reversed. However, this role is not proactive as the High Court must wait for a case to arise concerning unconstitutional legislation, and must be initiated by a person with standing, as the High Court is unable to declare legislation invalid of its own accord.
If a case arises requiring the interpretation of the wording of the Australian Constitution, this is another way in which the High Court can defend it. When these cases arise, the High Court acts as a guardian of the Australian Constitution by interpreting the words in a way consistent with the intentions of the drafters of the Australian Constitution, defending its integrity by either broadening or narrowing the meaning of the words.
