socal: common law

sources of contemporary australian law

adversarial system of trial

two adversaries try to prove their version of events and disprove the other
- impartial decision maker
- strict rules of evidence
- right to silence
- expensive

inquisitorial system of trial

a legal system where the court plays an active role in investigating the case, and the judge questions witnesses and evidence directly.
- no strict rules of evidence
- no right to silence
- can’t be fully impartial

precedent

legal principle set by higher courts to provide guidance on deciding cases with similar facts

binding precedent

made by courts higher in the hierarchy and must be followed by lower courts

persuasive precedent

made by a superior court that is not higher in the hierarchy of courts

statutory interpretation

new precedent made when a case is new and has no relevant legislation

obiter dicta

other comments made by the judge regarding the conduct of the trial

ratio decidendi

the essential legal reason why a judge came to a decision
sets binding precedent on lower courts

injunction

court order that prevents someone from doing something

equity (as an aid to the development of the current legal system)

supplements common law
gave rise to injunctions
focus on justice rather than a rigid system

how do serious criminal cases go to the district or supreme court?

through the committal process

what does the committal process constitute?

charge certification and case conferencing

charge certification

involves a brief of evidence and a charge certificate that states the specific charges against the accused and enables the court to determine if there is sufficient evidence for prosecution.

case conferencing

any charges the defendant will plead guilty to and discussions between parties to resolve issues prior to trial.
after the charge certification
between defense and prosecution

indictable offences

serious criminal offences that require an indictment and preliminary hearing
have greater penalties than non-indictable offences
tried before judge and jury

summary offences

can be dealt with by a single judge without a jury
does not require preliminary hearing
minor offences

jurisdiction

the scope of a court’s authority
location and offences it can hear

what are courts?

a forum to resolve legal disputes between individuals and organisations or individuals and the government

types and levels of jurisdiction

state/federal
local/district/supreme court

specialised jurisdiction

deal with cases only in a narrow range of topics
eg coroners court, children’s court
other courts have general jurisdiction

intermediate state court

district court nsw
both jurisdictions
cannot deal with murder or piracy

local courts

local court, coroner’s court, children’s court, drug court

drug court

therapeutic approach
alternative sentencing - suspended jail term
12 month treatment program
lottery system

jurisdiction impacts..

the type of penalty a court can award and the type of matters it can hear

superior state courts

court of appeal, supreme court

supreme court

highest court in state hierarchy
most serious indictable offences
both jurisdictions

court of appeal

highest court in each state and territory
appellate jurisdiction

superior federal court

the high court of australia
both jurisdictions

civil

non criminal disputes
seek damages - monetary compensation

criminal

offences that are a harm to society
fines, imprisonment, community supervision

original jurisdiction

hearing a case for the first time

appellate jurisdiction

hearing an appeal

appeal

a procedure which enables a party to challenge the decision of a lower court in a higher court

recidivism

reoffending

punitive

correctional

sanction

punishment

what do courts do?

• interpret the law

• resolve disputes

• expectations for future actions

what is common law?

law made by courts

how is common law developed?

through judicial decisions

burden of proof

who needs to prove their side of the case
Criminal: prosec
Civil: Plaintiff

standard of proof

how well they need to prove it
criminal: beyond reasonable doubt
civil: balance of probablilities