Legal Test S2 22

What are laws?

- formal set of rules
- protect our general safety
- shape and regulate society

What is criminal law?

- deals with offences against the state (eg. treason or sabotage), property (eg. theft or damage), a person (murder or assault), or public order (traffic offences and verbal abuse)
- offences are classified in order of seriousness

What is civil law?

- cases in which there are disputes between 2 or more private individuals/cooperations

What is the difference between summary and indictable offences?

summary (less serious eg. jaywalking)
indictable (heard before a judge and jury)

What is the person being prosecuted called?

defendant (civil) or accused (criminal)

What are types of civil cases?

defamation (suffering due to someone else's false statement)
breach of contract
negligence (failure to take reasonable care, suffered injury)
trespassing

What is the function of the law?

- ensures our rights as citizens against abuse by other people, organisations, and by the government
- ensures everyone knows what is expected of them as members of society (sets boundaries)
- helps maintain a united society and avoid disputes

What is a court hierarchy and why do we have it?

court hierarchy = the ranking from lowest to highest jurisdictions of a court system
- enables courts to operate more efficiently
- allows each court to specialise in hearing certain types of cases
- allows for appeal processes -> court decisions are predictable and consistent

2 ways laws are made

courts
parliament

The 3 principles of Australia's legal system

- equality before the law
- an equal and unbiased judiciary (court system)
- the right to appeal

What is Australia's court hierarchy?

High Court
Superior: Supreme Courts
Intermediate: District and County Courts
Lower: Magistrates' and Local Courts

What are the 3 federal courts?

The High Court
The Federal Court
The Federal Circuit and Family Court

What types of cases do each of the 3 courts hear?

High Court: appeals from any state, territory or the high court itself AND disputes over meaning of constitution
Federal: civil disputes involving federal law (can hear appeals)
FCAFC: family law

Before the Federal Circuit and Family was ", what was it?

2 divisions of the Federal Court that were united by reform in 2021

What is the Victorian Court Hierarchy?

High Court of Australia (FEDERAL)
Supreme Court of Appeal
Supreme Court (Trial Division)
County Court
Magistrates' Court

What are the 2 ways in which courts can make laws?

by setting precedent and through statutoryinterpretation

What is the jurisdiction of the Magistrates' Court?

- all summary criminal matters (eg. property damage, driving over speed limit, possession of illegal drugs)
- minor civil dispute (damages under $100,000)
- no jury, no appeals (no lower courts to review)

What is the jurisdiction of the County Court?

- all indictable offences except murder (eg. armed robbery, sexual assault, driving causing death)
- all civil disputes involving an unlimited amount of money
- can hear appeals from the magistrates' court

What is the jurisdiction of the Supreme Court of Appeal?

- hears county court and supreme court trial division appeals (although an appeal can only be lodged if a party has reasonable grounds)
- if not happy with Supreme Court of appeal, most go to high court of AUS (which doesn't hear many appeals)

What is the jurisdiction of the Supreme Court (Trial Division)?

- all indictable offences (but typically hears murder related)
- all civil disputes
- some appeals from the magistrates' court

What are the sentencing purposes?

- Just punishment – to punish the offender in a way that is fair in all the circumstances -> considering previous criminal history, victim statements, and showing of remorse
- Deterrence – to discourage the offender (also known as specific deterrence) or other people (general deterrence) from committing the same or similar offences.
- Rehabilitation
- Denunciation – to denounce, condemn or censure the offender’s behaviour and make it clear to the community the behaviour is wrong.
- Community protection – to protect the community from the offender.

How does a juror get selected?

- potential jurors selected from electoral roll
- potential jurors sent questionnaire to determine eligibility
- either disqualified, excused (must apply) or ineligible
- jury summons are issued
- individuals are balloted from jury pool at random
- jurors selected from jury panel
- empaneled (if drawn from jury panel, not challenged, and not excused)

What is a jury? (criminal vs civil)

- a jury is a group of men and women that are randomly selected from the community who return a verdict

What are the pros of the jury system?

- the defendant is given a trial by their peers
- jury system has been around for 350 years, amazing staying power
- there is evidence that judge alone trials caused a difference in results (verdicts)
- acceptable alternatives such as mixed judiciaries (used in Europe) are hard to find/implement/maintain

What are the cons of the jury system?

- 92% of matters are dealt with in the magistrates' court where there are no juries and of the remaining 8% more and more are choosing judge alone trials
- jurors overrate DNA evidence despite judicial directions
- it is considered normal fo judges to not follow directions because they misunderstood/ignored them
- commonsense comes with common biases which are difficult to erode

What do the jury have to do?

- use common sense, observational skills, and community standards of behaviour
- follow all instructions given by the judge
- listen to all evidence presented with bias or preconceived ideas
- weigh up all evidence
- deliver a verdict
- decide damages in civil case if plaintiff is successful

Why isn't a jury used in appeals?

because they never have to interpret the law (therefore never having to decide sanction either)

what is a rule?

regulations or guidelines imposed upon members of a specific group
(allows them to work together in a peaceful manner)

What is common law?

laws made by judges following the estblishing of a legal principle

what is setting precedent?

- legal principle created by a judge when there is no existing law (in order to solve a dispute)
- must be followed by all judges in lower courts in that hierarchy to ensure laws are consistent and predictable

what is statutory interpretation?

creating of a legal principle (common law) when wording of existing legislation is unclear or needs to be interpreted

what are laws made by parliament called?

statutes

what is the legislative process? (creating laws through parliament)

H.O.R (draft, bill presented, 1st 2nd and 3rd readings, debates and amendments each time, passing), Senate (same process minus draft), GG royal assent given, becomes a law

Who else can laws be made by (outside of parliament and courts)?

statutory authorities (smaller organisations created by parliament in order to make minor laws on their behalf eg. VicRoads)

What are the sentencing principles?

parisomy: no more severe sentence than necessary
proportionality: sentence proportional to the gravity of the offending behaviour
parity: similar offences (in similar conditions) must have similar sentences
totality: if there is more than one sentence, total must be just