Unit 1 Legal Studies - Exam Revision

what is social cohesion

the capacity of a society to esnure the wellbeing of all its members, minisming disparities and avoiding marginalisation

* belonging
* social justice
* equity
* acceptance
* worth

the role of individuals in achieveing social cohesion

responsibility to ensure they are aware of laws and abide by them

expected to respect human rights

and can ahcieve social cohesion by assisting police (reporting crimes etc)

the role of the law in achieving social cohesion

set expectations about the way individuals should behave - framework for which people live

the role of the legal system in achieveing social cohesion

set of methods that enforces laws and punish people who break them

applying the law and enforcing it creates cohesion

name and explain the principles of justice

**fairness -** impartial treatment for all under all law w/out fear or favour (right to a fair trial)

**access -** provision of a range of methods to settle disputes within the legal system (time, money, stress etc.)

**equality -** all citizens should be treated equally by the law - sometimes to treat people the same you have to treat them differently (use of impartial judge and jury)

what are the characteristics of an effective law

* reflects societies values
* must be enforcable
* laws must be known
* laws must be clear and understood
* should be stable

what is statute law

statute law are laws made by parliament - also known as acts of parliament or leglislation

parliaments are able to override laws made by other bodies including the courts

what is common law

common law are laws made by judges through decisions made in cases - also known as case law or judge made law

can do this by :

* interpreting the meaning of words in a statute (statutory interpretation)
* by deciding on a new issue in a case where there is no leglislation

what is the relationship between parliament and the courts

* **statutory interpretation** - interpret statutes and secondary leglislation
* **codification of common law** - confirming common law and putting them into leglislation
* **abrogation of common law** - override common law
* **ability to influence parliament** - judges may make comments that encourage parliament to change

what is criminal law

an act or omission that breaks existing law (murder, theft, arson etc.)

* if found guilty sanctions may be minor (fine) or severe (jail)

what is civil law

regulates disputes between individuals/groups (negligance, trespassing etc)

* do not involve police
* plaintiff and defendant

the distinction and relationship between criminal and civil law

**aim of law**

@@criminal@@ - to protect society and to sanction offenders

^^civil^^ - to regulate disuptes between parties and to remedy a wrong that has occured

**examples of crimes and laws**

@@criminal@@ - homocide, assualt, arson, theft, perjury, treason

^^civil^^ - negligance, defamation, contract law, consumer law

**possible consequences**

@@criminal@@ - sanction

^^civil^^ - remedy

**person bringing an action under the law**

@@criminal@@ - prosecution, on behalf of the state

^^civil^^ - plaintiff

**person who has the burden of proof**

@@criminal@@ - prosecution

^^civil^^ - plaintiff

**person defending the action**

@@criminal@@ - accused

^^civil^^ - defendant

**police involvement?**

@@criminal@@ - yes

^^civil^^ - no

**common words used**

@@criminal@@ - accused, crime, victim, arrest, guilty, sentence

^^civil^^ - sue, plaintiff, compensation, damages, remedy

the victorian court hierarchy

high court of australia (federal court)

\
supreme court of victoria -- (court of appeal and trial division)

\
county court of victoria

\
magistrates court of victoria (childrens court and coroners court)

reasons for court hierarchy

* allows for expertise/specialisation
* allows for appeals (to see higher courts)
* allows for doctrine of precedent (guided by higher courts)
* allows for administrative convience

what are the purposes of criminal law

* prohibits/punishes the types of behaviours we find unaceptable
* act/omission against existing law
* punishable by state
* protects individuals, property, society and promotes justice

what is the presumption of innocence

those accused should be treated as innocent as far as possible

* beyond reasonable doubt is the standard of proof
* prior convictions can only be brought up during sentencing
* burden of proof
* accused had right to legal representation, silence, appeal

what are the elements of a crime

guilty act and mind = crime

actus reus = guilty act

mens rea = guilty mind

* defences usually base that mens rea didn’t exist

what is strict liability

some crimes don’t require mens rea and only actus reus (eg. traffic offences)

what is the age of responsibility

anyone under 10 cannot commit a crime

* 10-13 prosecution needs to prove they knew what they were doing was wrong
* 14 or older can be charged with a crime

what is the burden of proof

the responsibility to prove the allegations made in case - burden of proof is held by the person or party who initiates or brings the case to court

what is the standard of proof

the strength of evidence needed to prove a legal case - in criminal law it has to be proven beyond reasonable doubt

what are the types of crimes

* crimes against a person - eg. homicide, assualt, stalking etc
* property and deception offences - eg. arson, property damage, theft etc
* drug offences
* public order and security offences
* justice procedures offences
* other offences

what is the difference between summary and indictable offences

**indictable -**

serious crimes eg. murder

heard in county/supreme court

verdict by jury and sentence by judge

**summary offences -**

minor crimes eg. drink driving

heard in magistrates court

verdict and sentence by magistrate

what are indictable offences heard summarily

the law allows for some indictable offenses to be heard in the magistrates as if they were minor

cannot be heard unless consent or if punishable by more than 10 years in prison or a fine greater than 1200 penalty points (200k)

* cheaper and quicker
* may recive less of a punishment

who are the possible participants in a crime

**principal offender -** commits the offence - and people who assist w/ planning or encourage

**accessory -** person who assists with the offender after the act

what is murder

unlawful killing of another person with malice aforethought

what are the elements of murder

1. the killing was unlawful
2. the victim was a human being
3. the accused was a person over the age of disrection
4. the accused caused victims death
5. the accused person was of sound mind
6. there was malice aforethought

what are the possible defences for murder

* self defence
* duress
* sudden/extraordinary emergency
* intoxication
* mental impairment
* automatism
* accident

the role of common law in murder

murder is an old common law offence - the definition and elements and some defences have been established throughout the years

the role of statute law in murder

the penalty for murder was established by parliament and set out in statute law

in 2014 parliament changed the definition of self defence to allow its usage after prolonged periods of family violence

trends and statistics between murder in aus and us

**number of murders per 100 000 people**

**aus -**

2013; 1.1

2014; 1.0

2015; 1.5

2016; 1.3

2017; 1.2

**us -**

2013; 4.5

2014; 4.5

2015; 5.0

2016; 5.4

2017; 5.3

impact of murder

**impact on family/victim**

loss of life

trauma/grief

funeral costs

loss of income

**impact on community**

increased need for police, fire etc

trauma to emergency services

potential loss of confidence in the legal system

**impact on offender**

guilt/shame

legal costs

diminishment of family’s social standing

what is theft

dishonestly appropiate property belonging to another with the intention of permanantly depriving the other of it

what are the elements of theft

1. the accused took the property
2. accused took property with intention of permanantly depriving the other of it
3. accused acted dishonestly

possible defences to theft

* subjective belief
* inability to obtain permission of the owner
* claim of right - accused believe they had an authentic claim

what is the role of common law in theft

common law has developed common law principles regarding what is meant by terms ‘permanantly deprive’ ‘property’ and ‘appropiate’

what is the role of statute law in theft

the crimes act contains main provisions relating to theft and others like robbery, armed robery, handling stolen goods etc

trends and statistics in theft

in VIC, theft of motor vechile and shoplifting have increased

self serve checkouts have made retailers a soft target for shoplifting

impact of theft

* when precious gifts are stolen
* insurance premium payable by victim increases for community
* loss of income
* need for police officers
* guilt or shame
* legal compensation

purposes of civil law

regulates disputes between individuals, groups, organisations

aims to acheive social cohesion, protect rights, seek compensation

the certain types of civil law

* contract law


* negligance
* wills
* nuisance
* defamation

what is a breach

the defendant has in some way failed to fulfil obligations - the plaintiff has to prove there has been a breach by the defendant

what is causation

the actions of the defendant have resulted in harm or suffering being inflicted - the defendant was directly responsible

what is loss

plaintiff has to prove they have suffered a loss

eg. economic/financial loss, property damage, personal injury etc

the limitation of actions

time period within a party can sue

* breach of contract - 6 years
* under tort low - 6 years
* under tort ;aw; personal injury of disease of disorders - 3 years
* defamation - 1 year
* an action to recover arrears of rent - 6 years

the burden and standard of proof in a civil case

burden - who is responsible for proving facts

standard - decided on balance of probabilities - lower standard than criminal law

possible plaintiffs in a civil dispute

aggrieved party

* person who has had their rights breached
* representative proceeding

other victims

* individuals who have indirectly suffered a loss or damage as a result

insurers

* companies/individuals who agree to provide insurance to those who take out a policy

possible defendants in a civil case

wrongdoer

* party who has directly caused loss or damage

employers

* employer may be liable for the actions of their employee through vicarious liability

persons invloved in wrongdoing

* individual who aided, abetted or procured the wrongful act

insurers

* where insurance claim has been denied, plaintiff may seek to commence proceeding to seek compensation

negligance and rights protected by the law

* protect people from wrongful conduct
* allow parties to seek compensation

negligance elements required to establish liability

* duty of care
* breach of duty of care
* causation
* injury, loss or damage

limitation of actions for negligance and defamation

negligance - 3 years

defamation - 1 year

possible defences for negligance

* contributory negligance
* assumption of risk (volenti non fit injuria)

role of statute law in negligance

in VIC part X of the wrongs act is the main leglislation that goversn negligance claims - changes many common law principles relating to negligance

role of common law in negligance

the donoghue v stevenson case firmly established the tort of negligance

impact of negligance on the parties

on plaintiff

* loss of life
* serious physical injury
* unemployment
* effect on mental health

on defendant

* loss of business
* public humiliation
* costs

defamation and rights protected by law

* rights to freedom of expression
* right to be considered of good reputation/character
* right to quick and effective method of resolving a dispute

elements required to establish liability in defamation

* statement id defamatory
* statement is untrue
* statement refers to the plaintiff
* has been published

possible defences to defamation

* justification
* contextual truth
* fair report of proceedings in public concern
* honest opinion

role of common law in defamation

prior to 2006 defamation in VIC was gorvened by common law - elements and defences were developed through a serious of court cases

role of statute law in defamation

in 2005 unifrom leglislation was introduced by state and territory parliaments - this meant the laws on defamation were the same in each state/territory

impact of defamation on parties

on plaintiff -

* loss of reputation
* emotional impact of the defamatory material
* loss of wages and livelihood
* unemployment

on defendant -

* costs
* need to sell assets
* public humiliation