Week 11 Lecture

Question 1

What is judicial activism?

Answer 1

The promotion of justice

Question 2

What does judicial activism promote?

Answer 2

Justice

Question 3

What kind of approach does judicial activism have?

Answer 3

Contextual approach.

Question 4

What does judicidal formality promote?

Answer 4

Certanity.

Question 5

What kind of approach does judicial formality have?

Answer 5

Textaul approach.

Question 6

What is the tribunal of fact concerned with?

Answer 6

The “tribunal of fact” is concerned with establishing the facts of a case, where the facts are contested between the parties.

Question 7

Who is the tribunal of fact in a jury trial?

Answer 7

Jury

Question 8

Who, besides the jury, can also function as a fact finder?

Answer 8

Judge or magistrate.

Question 9

What is the acceptance of an alleged fact based on?

Answer 9

The acceptance of an alleged fact is based on the presentation of evidence to a required standard of proof

Question 10

What must evidence be capable of?

Answer 10

Evidence must be capable of establishing whatever has been asserted.

Question 11

What is the presentation and reception of evidence a key aspect of?

Answer 11

Judicial reasoning.

Question 12

What is physical evidence?

Answer 12

Physical evidence: things in the physical world.

Question 13

What is testimony?

Answer 13

Oral evidence given by witnesses and the parties

Question 14

What is expert evidence?

Answer 14

Reports given by a person who possess recognised expert knowledge about some phenomenon

Question 15

What are notorious facts?

Answer 15

Matters that are so well-known that they do not require evidence – they may be accepted on judicial notice

Question 16

What is circumstantial evidence?

Answer 16

Evidence that surrounds the allegation, but not directly establishing it

Question 17

What is documentary evidence?

Answer 17

Material, symbolic and linguistic records of people, places and things captured in time.

Question 18

What is the threshold test for attempts to tender or adduce evidence in a court?

Answer 18

Relevance .

Question 19

What is the requirement at common law for law to be relevant?

Answer 19

Evidence has to be relevant to be admissable.

Question 20

When is evidence relevant?

Answer 20

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

Question 21

What is the tribunal of law?

Answer 21

The “tribunal of law” is the court and the judicial officer(s) within it.

Question 22

Whose function is it to determine questions of law?

Answer 22

The judge.

Question 23

What is burden of proof?

Answer 23

Duty to make out a case.

Question 24

What are the two components of burden of proof?

Answer 24

Legal burden and evidental burdern.

Question 25

What is the legal burden part of burden of proof?

Answer 25

It has to satisfy tribunal of fact.

Question 26

What is the evidental burden of burden of proof?

Answer 26

Satisfy tribunal of law.

Question 27

Who has the burden of proof in criminal cases?

Answer 27

Prosecution.

Question 28

Who has the burden of proof in civil cases?

Answer 28

Plaintiff must satisfy burden of proof.

Question 29

Was is the standard of proof in criminal cases?

Answer 29

Beyond reasonable doubt to an onerous standard.

Question 30

What is the standard of proof in civil cases?

Answer 30

Balance of probabilities

More probable than not

Question 31

What are appeals?

Answer 31

When a party disagrees with a judicial decision, they may have the option to challenge the opinion.

Question 32

Where do appeals go to?

Answer 32

A higher court in the hierarchy

Question 33

What are appeals based on?

Answer 33

Difference between matters of law and fact

Question 34

What does unanimous mean in a appeal judgement?

Answer 34

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

Question 35

What does majority mean in an appeal judgement?

Answer 35

A decision of the majority when not unanimous.

Question 36

What is minority in an appeal judgement?

Answer 36

The judges not in the majority.

Question 37

What does joint mean in an appeal judgement?

Answer 37

Where two or more judges write a common judgment between them

Question 38

What does individual mean in an appeal judgement?

Answer 38

A judge writes their own judgement.