Legal Studies 1/2 Glossary

Crime

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

Act

A physical action.

Omission

Failing to do something.

Punishable by law

Able to be punished by law enforcement and the courts.

Sanction

A penalty imposed by a court on a person guilty of a criminal offence.

Fine

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

Imprisonment

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

Presumption of innocence

The right of a person accused of a crime to be presumed not guilty unless proven otherwise.

Beyond Reasonable Doubt

The standard of proof in a criminal case.

Standard of Proof

The degree to which the evidence provided proves the case; in a criminal case, it is 'beyond reasonable doubt'.

Prosecution

The party on behalf of the state that brings forward a criminal case.

Burden of Proof

The responsibility of a party to provide evidence to prove the case; in criminal cases, it is the prosecution.

Prosecutor

A person acting on behalf of the DPP who institutes a legal proceeding against the accused.

Bail

Temporary release of the accused into society while awaiting trial.

Actus Reus

That the accused committed the physical act.

Mens Rea

The necessary mental state when the accused committed the act.

Strict Liability

A criminal offence in which only the actus reus must be proven, not the mens rea.

Culpability

Responsibility for a fault.

Defences

A legally recognised argument, used by a party, to justify their actions, so as to claim they are not guilty of a crime.

Crime against person

Criminal offences where a person is harmed or harm is threatened.

Crime against property

Criminal offences that involve using force or deception to obtain, damage, or destroy property.

Crime against society

Crimes that harm the wellbeing or safety of society.

Cyber crime

A criminal offence in which the use of computers or information communication (ICT) is an essential and central part of the offending.

Prejudice motivated crime

A criminal offence motivated by prejudice, intolerance, or bias towards the victim.

Organised crime

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

Juvenile crime

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

White collar crime

A criminal offence undertaken by people who work in government, businesses, or the corporate world.

Penalty unit

Used to define the amount payable for fines for many offences.

Indictable offence

Serious criminal offences generally heard and determined in higher courts (e.g., County Court and Supreme Court) before a judge or jury.

Summary offence

Minor criminal offences generally heard in the Magistrates' Court; less serious types of crime.

Principal offender

A person who has carried out the actus reus and has therefore directly committed the offence.

Accessory

A person who assists another person who has committed a serious indictable offence to avoid being arrested, prosecuted, convicted, or punished.

Social cohesion

The willingness of members of society to cooperate with each other to survive and prosper

Constitutional monarchy

System of government in which a monarch shares power with a constitutionally organised government

Bicameral parliament

A parliament with two houses (also called chambers). In the Australian Parliament, the two houses are the Senate (upper house) and the House of Representatives (lower house). In the Victorian Parliament the two houses are the Legislative Council (upper house) and the Legislative Assembly (lower house)

Administers

to put it into practice

Redress

to set right, remedy; relief from wrong or injury

Justice

The establishment of a society in which everyone is entitled to fairness, equality, and access

Fairness

Where all people can participate in the legal system, and its processes should be impartial and open

Equality

Where all people engaging with the justice system and its processes should be treated in the same way; 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

Access

Where all people should be able to engage with the justice system and its processes on an informed basis

Effective

A law is effective when it is enforceable, known, clear and understood, and stable

Reflecting society's values

If a law is more acceptable to the values of a society it is more likely to be followed by that society. When the values in society change, the law should change to reflect this

Enforceable

Enforceable by law (courts). If broken, can be punishable

Known

Only when people know a law can they follow it

Clear and understood

Only when a law is written simply, unambiguously and with as little legal jargon as possible can people follow it

Stable

Though laws must keep up with changing times, they need to remain stable until changed through the correct process. Otherwise, it is very hard for people to follow them

Parliament

A body of representatives that makes laws for a nation

Government

Political party that holds the majority of seats in lower house form government

Role of Parliament

Represent the people, form government, hold government to account, debate issues, make laws

Role of the Courts

To resolve disputes that come before them by interpreting statute law, suggesting reforms to the law or creating new legal principles

Jurisdiction

The legal authority and ability of a court to hear and determine a legal case

Statute law

Legislation that is passed and enacted by Parliament (collective term for Acts of Parliament)

Acts of Parliament

Laws passed and enacted by Parliament

Executive Government

The branch of government that puts government laws and programs into effect

Parliament vs Government

Parliament consists of all 128 members regardless of their political affiliation. It makes the laws, ensuring that the processes and rules have been followed. The government proposes the laws and administers the policies to run the nation or state.

Precedent

A legal principle established by the courts which becomes law to apply in future similar cases

Common law

Laws made by judges when resolving a dispute

Statutory interpretation

The courts giving meaning to the words in legislation when resolving a dispute

Judges influencing parliament

When comments in the judgment of judges suggest reforms to the law

Abrogation

When parliament renders a common law principle invalid by passing legislation

Codification

The classifying and incorporation of common law into legislation by parliament

Parliament influences the courts through...

parliamentary supremacy and statutory interpretation

The courts influence parliament through...

statutory interpretation, abrogation, codification and comments from judges

Bill

Proposal for a new law or a suggested change to an existing one

Ratio decidendi

The legal reasoning for the decision which is treated as binding on similar cases in the future

Stare decisis

Standing by what has been decided

Binding precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy

Obiter dictum

A statement not essential to deciding a case and therefore not binding

Hung parliament

When no party or coalition of parties holds the majority of seats in the House of Representatives

Rubber stamp parliament

When the government holds the majority of seats in both houses

Doctrine of precedent

As decisions made in higher courts are to be followed by lower courts in cases with similar material facts, there needs to be a defined hierarchy to facilitate this. This ensures consistency and predictability in cases

Appeals

Without a hierarchy, parties would be unable to request a review of their case to a superior court

Specialisation

As each court has an assigned jurisdiction, that court is able to become an expert in those types of cases

Administrative convenience

The fact that courts have specific jurisdiction increases logistical efficiency. Time and resources are allocated more efficiently

Criminal law

An area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct

Crime

An act or omission that violates an existing law, causes harm to an individual, or society as a whole, and is punishable by law

Prosecution

The party who acts on behalf of the Commonwealth or the state who brings a criminal case to court

Accused

The party who is charged with a criminal offence

Beyond reasonable doubt

The standard of proof in criminal proceedings, which requires the prosecution to prove that there is no reasonable doubt that the accused is guilty

Sanction

A penalty imposed by the court on an offender when they are found guilty of a crime

Burden of proof

The responsibility of a party to prove the facts of a case

Standard of proof

The degree to which the facts of the case must be proven in court

Civil law

An area of law that defines the rights and responsibilities of individuals, entities and organisations

Tort

A civil wrong that interferes with a person's legally protected interests

Plaintiff

The party that initiates a civil claim against another person in court

Defendant

The party who is being sued by another for an alleged breach of civil law

Balance of probabilities

The standard of proof in civil disputes, which requires the plaintiff to prove that it is more probable than not that their version of the facts is correct

Remedy

Court orders that aim to correct a civil wrong and return the plaintiff to the position they were in prior to the civil breach by the defendant

Defamation

An area of civil law that aims to protect a plaintiff from having their reputation unfairly damaged

Negligence

A failure to behave with a level of care that a reasonable person would have exercised under the same circumstances

Persuasive precedent

A decision by a superior court that is not higher in the hierarchy of courts that is not required to be followed

Protection of society

Keeping society and the individuals within safe and maintaining social cohesion

Deterrence of crime

The act of discouraging an offender, or other individuals, from reoffending (or offending) through the imposition of a criminal sanction.

Stopping the crime, knowing that people would not commit crimes simply because they are wrong.

As criminal law comes with serious consequences for the offender, it is hoped that fear or risk of being caught serves to prevent people from committing crimes or reoffending

Protect justice and the rule of law

To achieve justice; to be treated fairly, people held accountable for their actions and adequately compensated when they have suffered harm

Criminal laws define and regulate behaviour within society

Set minimum standards of behaviour

Criminal law outlines the behaviours that are unacceptable - the crimes - and consequences of committing them - the sanctions.

What kind of behaviour is unacceptable

The community has the ability to influence laws

The presumption of innocence

The right for all accused person to be presumed innocent until it is proven, beyond reasonable doubt, that they are guilty

Protection of the presumption of innocence

The burden of proof is on the prosecution

Standards of proof is beyond reasonable doubt (exceptionally high, because the sanction applied is high)

Accused has right to silence, right to apply for bail and right to a fair trial

Prior convictions not revealed during trial

Police requires reasonable grounds to arrest

Accused must be informed of charges against them

Exceptions to the presumption of innocence

Only granted bail if exceptional circumstances can be proven for:

Treason

Murder

Aggravated home invasion

Aggravated carjacking

Serious drug offences

Terrorism offences

The elements of a crime

Actus reus and mens rea