Legal terms and definitions U1/2

Abrogate (abrogation)

To abolish or cancel a law

Access

One of the principles of justice; means that all people should be able to engage with the justice system and its processes on an informed basis

Accessory

A person who does an act to help another person who has committed a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished

Accused

A person charged with a criminal offence but who has not been found guilty or pleaded guilty

Act of parliament

A law made by parliament; a bill that has passed through parliament and has received royal assent (also known as a statute)

Actus rea

A Latin term meaning ‘a guilty act’: the physical element of a crime (i.e. the act itself)

Aggravated damages

An amount of money that a defendant may be ordered to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendant’s conduct

Aggravating factors

Facts of circumstances about an offender or an offence that can lead to a more severe sentence

Appeal

An application to have a higher court review a ruling

Appellate jurisdiction

The power of a court to hear a case on appeal

Apprehended bias

A situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case might not bring an impartial mind to the case

Arson

The intentional and unlawful use of fire to destroy or damage another person’s property

Arson causing death

The intentional and unlawful use of fire which causes the death of another person

Assault

The intentional or reckless use of force or the threat of force against another person without a lawful excuse

Australian Constitution

A set of rules and principles that guide the way Australia is governed. The Australian Constitution is set out in the Commonwealth of Australia Constitution Act

Automatism

A state in which a person has a total loss of control over their bodily movements, so that they cannot form an intention to commit a crime

Award

A legal document that sets out minimum pay rates and work conditions for employees who work in a particular occupation or industry

Bail

The release of an accused person from custody on condition that they will attend a court hearing to answer the charges

Barrister

An independent lawyer with specialist skills in dispute resolution and advocacy who is engaged on behalf of a party

Beyond reasonable doubt

The standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence

Bias

A prejudice or lack of objectivity in relation to one person or group

Bicameral parliament

A parliament with two houses (also called chambers).

Binding precedent

The legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction in cases where the material facts are similar.

Breach

The breaking of or failure to fulfil or comply with a duty or obligation

Burden of proof

The obligation of a party to prove a case. The burden of proof usually rests with the party who initiates the action

Causation

The direct relationship between one event and another event where event 1 was the reason event 2 happened, and event 2 would not have happened by itself, without event 1

Child homicide

The killing of a child under six years of age in circumstances that would normally be manslaughter

Civil law

An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

Civil liability

The legal responsibility of a party for loss or harm caused to another party because of a breach of civil law

Class action

A legal proceeding in which a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to court in the name of one person; also called a representative proceeding or a group proceeding

Coalition

An alliance or joining together of two or more political parties, usually to form government

Codify (codification)

To collect all the law on one topic together into a single statute

Committal proceeding

The pre-trial hearings and processes held in the Magistrates’ Court for indictable offences

Common law

Law made by judges through decisions made in cases; also known as case law or judge – made law

Community correction order (CCO)

A flexible, non-custodial sanction that the offender serves in the community, with conditions attached to the order

Compensatory damages

An amount of money awarded to a plaintiff for harm, injury, or other losses suffered. It includes general damages, special damages, and aggravated damages

Complaints body

An organisation established by parliament to resolve formal grievances made by an individual about the conduct of another party

Contract law

An area of civil law governing the validity and enforceability of agreements made between two or more parties

Conviction

A finding of guilt made by a court, whether or not a conviction is recorded. Where a conviction is recorded, it will form part of the person’s criminal record

Crime

An act or omission that is against an existing law, harmful both to an individual and society, and is punishable by law

Criminal law

An area of law that defines behaviours and conduct that are prohibited and outlines sanctions for people who commit them

Culpable driving causing death

That act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner, or while under the influence of drugs or alcohol

Cyber crime

A criminal offence in which the use of computers or information communication technologies is an essential and central part of the offending

Damages

An amount of money that one party is ordered to pay to another party for loss or harm suffered. It is the most common remedy in a civil claim

Dangerous driving causing death

That act of causing the death of another person while driving a motor vehicle at a speed or in a way that is dangerous to the public

Dangerous driving causing serious injury

The act of causing serious injury to another person while driving a motor vehicle at a speed or in a way that is dangerous to the public

Defamation

A type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information

Defence to a crime

A justification or lawful ‘reason’ given by an accused person as to why they are not guilty of a criminal offence

Defendant

(in a civil case) a party who is alleged to have breached a civil law and who is being sued by a plaintiff

Delegated body

An authority or agency given power by parliament to make and/or enforce laws

Denunciation

One purpose of a sanction, designed to demonstrate the community’s disapproval of the offender’s actions

Deterrence

One purpose of a sanction, designed to discourage the offender and others in the community from committing similar offences

Diversion program

A method used in the Magistrates’ Court and Children’s Court to ‘redirect’ offenders away from the court and avoid a criminal record by placing them on a plan

Doctrine of precedent

The rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Doli incapax

A Latin term meaning ‘incapable of evil’. Refers to the principle in Victoria that a child aged between 10 and 13 years is presumed to be incapable of forming mens rea (a guilty mind) because they do not have the intellectual or moral capacity to know the difference between wrong and right

Drug and alcohol treatment order (DATO)

A type of sanction imposed by the Drug Court that aims to treat the underlying causes of offending, and includes both the treatment and custody of the offender

Drug Court

A specialist court that is able to impose a drug treatment order on an offender where drugs or alcohol contributed to the commission of the offence

Duress

Strong mental pressure on someone to overcome their independent will and force them to do something

Duty of care

(in relation to negligence) the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them

Enterprise agreement

A legal agreement that sets out pay rates and work conditions between two or more employees and their employer

Equality

One of the principles of justice; means people should be treated the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage

Evidence

Information, documents and other material used to prove the facts in a legal case

Fairness

One of the principles of justice; means all people can participate in the justice system and its processes should be impartial and open

Fine

A sanction that requires the offender to pay an amount of money to the state

General damages

A type of remedy that requires the payment of a sum of money to compensate for loss that cannot easily be quantified

General deterrence

One purpose of a sanction, designed to discourage others in the community from committing similar offences

Government

The ruling authority with power to govern, formed by the political party or parties (coalition) that holds majority in the lower house in each parliament. The members of parliament who belong in this political party form the government.

Governor

The King’s representative at a state level

Governor - General

The King’s representative at the Commonwealth level

Guilty plea

When an offender formally admits guilt which is then considered by the court when sentencing

Homicide

The killing of another person without legal justification

Homicide by firearm

The killing of a person by discharging a firearm in circumstances that would normally be manslaughter

House of Representatives

The lower house of the Commonwealth Parliament

Human Rights Charter

The Charter of Human Rights and Responsibilities Act 2006 (Vic). Its main purpose is to protect and promote human rights

Imprisonment

A sanction that involves removing the offender from society for a stated period of time and placing them in prison

Indicatable offence

A serious offence generally heard before a judge and jury in the County Court or the Supreme Court of Victoria

Indictable offence heard and determined summarily

A serious offence that is dealt with as a summary offence if the court and the accused agree

Infanticide

The killing by a mother of a child under two years of age while suffering a mental condition caused by the effects of that child’s birth

Institutional power

The authority given to bodies such as Victoria Police to undertake certain actions

Intentionally or recklessly causing a bushfire

Intentionally or recklessly causing a fire that spreads to vegetation on property belonging to another person

Jurisdiction

The lawful authority of a court, tribunal or other dispute resolution body to decide legal cases

Juvenile crime

A criminal offence undertaken by a young person aged between 10 and 18 years

Koori Court

A division of the Magistrates’ Court, Children’s Court and County Court that operates as a sentencing court for First Nations people

Laws

Legal rules made by a legal authority that are enforceable by the police and other agencies

Lead plaintiff

The person named as the plaintiff in a class action and who represents the group members

Loss

A type of harm or damage suffered by a person. It can involve both economic and non-economic loss

Majority verdict

A decision where all but one of the members of the jury agree

Manslaughter

The unlawful killing of a person due to a reckless, dangerous act or negligent behaviour

Mental impairment

A condition of the mind that impacts on a person’s ability to know the nature and quality of their conduct, or that the conduct was wrong

Mitigating factors

Facts of circumstances about the offender or the offence that can lead to a less severe sentence

Murder

The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification

Negligence

A type of tort that involves a breach of a duty of care, causing loss or harm

Nominal damages

A small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial

Nuisance

A type of tort law that involves interference with a person’s right to use and enjoy private and/or public property

Offender

A person who has been found guilty of a criminal offence by a court

Offensive behaviour

Conduct that is calculated to wound feelings, or arouse anger, resentment, disgust or outrage in the mind of a reasonable person

Organised crime

A criminal offence undertaken in a planned and ongoing manner by organised syndicates or gangs

Original jurisdiction

The power of a court to hear a case for the first time

Parliament

A formal assembly of representatives of the people that is elected by the people and gathers to make laws

Parole

The supervised and conditional release of a prisoner after the minimum period of imprisonment has been served