Studied by 45 peopleprecedent flow within the court hierarchy
a judge-made decision that stands as an example or guide for future decisions in similar factual circumstances.
precedent
to stand by what has already been decided.
stare decisis
judges can follow and apply the reasoning of past similar case outcomes to decide the judgement of a case.
how does stare decisis apply to precedent?
precedent which binds courts at a lower level in the court hierarchy than the court that made the precedent
binding precedent
→high court
→supreme court
→district court
→magistrates court
court hierarchy
influences (not binded!!) the courts higher than and equal to the court that made the precedent
persuasive precedent
latin for “reason of decision”
ratio decidendi
it is the judge’s reasoning for the judgement they’ve made that is the critical component of precedent.
how does ratio decidendi relate to precedent?
binding precedent bind precedent to all lower courts, whereas persuasive precedent only influences (not binded) courts above and equal to the court in which the precedent is made
difference between persuasive and binding precedent
-obiter dicta (latin)
→”sayings by the way” - so that future judges with similar cases may use obiter dicta as a guide to their own decision making.
ratio decidendi
→the judicial reasoning for the judgement of a case.
two main parts of a legal decision
-evolution of common law
→replacing outdated precedents and adapting new precedents to changing society and circumstances)
→fair * parties get the same treatment as other parties
→predictability * parties can be reassured about how a court will judge their case based on similar past case outcomes
→consistency * similar cases will have similar outcomes
→flexibility * is there is no precedent, courts may be free to create new common law to resolve a case.
advantages to the common law system
→lower court judges who are bound by the precedents of higher courts may disagree of a precedent despite having to apply it. if a judge thinks a precedent is unjust, their ratio will outline the reasons for this. this invites a party to appeal to a higher court with the power to overrule the precedent (change to common law!!!)
→two courts at the same level may produce two different judgements, thus conflicting ratios in similar cases. both ratios will stand until the conflict is resolved.
-until the conflict is resolved, there will be confusion(breaching rule of law’s requirement for laws to be clear, consistent and coherent) and unpredictable.
disadvantages to a common law system
judgements of higher courts are binding on the lower courts.
doctrine of precedent
the non-critical judicial reasoning outlined in the decision of the courts
obiter dicta
the decisions of higher courts are binding on lower courts.
key to the doctrine of precedent
overruling
disapproving
distinguishing
reversing
how can the courts apply or change a precedent?
a superior court may create a new precedent rather than following the one already made if it was in a lower court
→If they disagree with the lower court, the superior court may substitute its own ratio.
overruling
Occurs when a court decides not to follow a previous decision set by a court at the same level.
→The high court sometimes takes this action and creates ‘new law’
disapproving
If a court decided that the case before it is substantially different on the facts (the circumstances of a crime can be completely different to another, influencing the judgement of the case) from any previous case, its decision will be different or distinguished from existing precedents.
distinguishing
If the higher court finds the law has been misapplied it will reverse the judgement and substitute a correct ratio decidendi for the ratio used by the lower court.
→the fact that the law has been misapplied
reversing
law made by courts
common law
statue law
law made by parliament
common law is made by judges in a court, using precedent - decisions made in previous similar cases to decide the judgement of a case before them.
how common law applies to precedents
overruling, disapproving, distinguishing and reversing precedent
how the courts can apply doctrine of precedent
reversing a decision is based on the fact that the law has been misapplied, whereas overruling a decision is simply when the high court disagrees with the decision made in lower courts and can overrule it.
difference between reversing and overruling
rules of conduct enforceable by the court
→most powerful social controller and regulator that exists.
law
→to promote and represent the values of the community
→provide a structure for the creation, enforcement and alteration of the law in accordance with the wishes of society
→regulate and control human activity within a society
→provide a clear statement of behaviours that are considered acceptable within the community.
→provide a basis for the protection of people against behaviour that removes their social and economic freedom
functions of laws
laws are “formal rules’ set by society as a whole. when they are broken, they are enforceable by the courts. however, informal rules are not enforceable through the courts
laws vs. rules
→protect and regulate key areas of social interaction for the public
purpose of public laws
the people of the colonies (society)
2)the almighty god (religious times)
3)the crown.
constitution’s sources of authority
→strict rules of evidence and procedure
→consistent hearings
→right to an open hearing(transparency→justice)
→right to appeal
→presumption of innocence
→right to silence
rules of a fair and unbiased hearing
1)enforceability
→legal consequence for law breaking
2)universality
→the law applies to everyone, no one is above the law. informal rules may apply to a certain category of people.
3)legitimacy
→for the law to exist effectively, it must have legitimacy (consent of the people→whereby they follow the law through moral obligation, not coercion.
differences between laws and rules
regulating the conduct of individuals with other individuals
purpose of private laws
the order in importance of courts in legal decision making.
court hierarchy(define)
1)court of first instance
2)intermediate court
3)superior court
what does each state have in their court hierarchy?
→ensures judicial decisions are fair, predictable and consistent.
→helps precedents to flow down
→helps appeals to flow up
why have a court hierarchy?
-minor and indictable offences
-up to $75,000
magistrates court - jurisdictions
-serious criminal offences for which the max penalty is 20 years
-up to $750,000
districts court - jurisdictions
very serious criminal charges
above $750,000
supreme court - jurisdictions
minor and indictable offences (burglary), property cases
example of magistrates court case
breaking and entering, serious assult
example of districts court case
murder, manslaughter
example of supreme court case
the supreme court is granted to hear appeals from the supreme court of each state
S73 of constitution
lower courts follow the decisions of higher courts
rule of court hierarchy
ensures consistency whilst allowing the law to be modified over time.
advantage of rule of court hierarchy
-coherency
→usually consistent because it applies precedents
-legally enforceable
→ decisions of higher courts are binding on lower courts
-reflect changing community values
→acceptable laws and policies that are applied to the community
transparency
→citizens having the right to know and have access to documents about the government for effective public oversight.
what makes an effective law?
Note 
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