Week 11 Lecture Flashcards
What is judicial activism?
The promotion of justice
What does judicial activism promote?
Justice
What kind of approach does judicial activism have?
Contextual approach.
What does judicidal formality promote?
Certanity.
What kind of approach does judicial formality have?
Textaul approach.
What is the tribunal of fact concerned with?
The “tribunal of fact” is concerned with establishing the facts of a case, where the facts are contested between the parties.
Who is the tribunal of fact in a jury trial?
Jury
Who, besides the jury, can also function as a fact finder?
Judge or magistrate.
What is the acceptance of an alleged fact based on?
The acceptance of an alleged fact is based on the presentation of evidence to a required standard of proof
What must evidence be capable of?
Evidence must be capable of establishing whatever has been asserted.
What is the presentation and reception of evidence a key aspect of?
Judicial reasoning.
What is physical evidence?
Physical evidence: things in the physical world.
What is testimony?
Oral evidence given by witnesses and the parties
What is expert evidence?
Reports given by a person who possess recognised expert knowledge about some phenomenon
What are notorious facts?
Matters that are so well-known that they do not require evidence – they may be accepted on judicial notice
What is circumstantial evidence?
Evidence that surrounds the allegation, but not directly establishing it
What is documentary evidence?
Material, symbolic and linguistic records of people, places and things captured in time.
What is the threshold test for attempts to tender or adduce evidence in a court?
Relevance .
What is the requirement at common law for law to be relevant?
Evidence has to be relevant to be admissable.
When is evidence relevant?
Evidence is relevant if it tends to persuade the receiver that what has been asserted could rationally affect the conclusion that what has been asserted did or did not take place
What is the tribunal of law?
The “tribunal of law” is the court and the judicial officer(s) within it.
Whose function is it to determine questions of law?
The judge.
What is burden of proof?
Duty to make out a case.
What are the two components of burden of proof?
Legal burden and evidental burdern.
What is the legal burden part of burden of proof?
It has to satisfy tribunal of fact.
What is the evidental burden of burden of proof?
Satisfy tribunal of law.
Who has the burden of proof in criminal cases?
Prosecution.
Who has the burden of proof in civil cases?
Plaintiff must satisfy burden of proof.
Was is the standard of proof in criminal cases?
Beyond reasonable doubt to an onerous standard.
What is the standard of proof in civil cases?
Balance of probabilities
More probable than not
What are appeals?
When a party disagrees with a judicial decision, they may have the option to challenge the opinion.
Where do appeals go to?
A higher court in the hierarchy
What are appeals based on?
Difference between matters of law and fact
What does unanimous mean in a appeal judgement?
Unanimous: full bench arrived at the same outcome using similar reasoning
Majority: a decision of the majority when not unanimous
Minority/dissenting: the judges not in the majority
Joint:
Individual: a judge writes their own judgment
What does majority mean in an appeal judgement?
A decision of the majority when not unanimous.
What is minority in an appeal judgement?
The judges not in the majority.
What does joint mean in an appeal judgement?
Where two or more judges write a common judgment between them
What does individual mean in an appeal judgement?
A judge writes their own judgement.
