Legal Studies Notes

Legal Studies Notes

Summary offences

Are criminal offences that are minor offences and less serious in nature, heard in the Magistrates’ Court by a Magistrate during a hearing.

Indictable offences

Are serious criminal offences which are heard at trial in either the County Court or Supreme Court of Victoria.

Indictable offences heard summarily

Serious criminal offences that can be treated as though they are summary offences and heard by a magistrate in the Magistrates’ Court.

Burden of proof

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

Standard of proof

The strength of evidence required to prove the case. It is the degree or extent to which a case must be proved in court.

Presumption of Innocence

Every person accused of a crime is presumed to be innocent until they have been proved guilty in a court of law, and as such they should be treated as though they are innocent.

Right to be tried without unreasonable delay

A person charged with a criminal offence is entitled, without discrimination, to a guarantee that he/she will be tried without unreasonable delay.

The right to silence

Enables the accused to not answer questions during an investigation or during a trial. The only exception to this is being legally required to provide their name and address.

The right to trial by jury

Provides the right to a jury to an accused who pleads not guilty to an indictable offence. There is no right to a jury trial for summary offences.

Victim

A person who has suffered injury directly as a result of a criminal offence

Alternative arrangements

Processes put in place by a court to protect vulnerable witnesses when they are giving evidence. Using alternative arrangements will help reduce trauma, distress and intimidation.

The right to be informed about proceedings

Recognises that persons adversely affected by crime are entitled to certain information about the proceeding and the criminal justice system.

The right to be informed of the likely release date of the accused

Says a person who is a victim of a criminal act of violence can apply to be on the Victims Register.

Justice

The fair and equitable treatment of all individuals under the law

Fairness

All people can participate in the justice system and its processes should be impartial and open.

Equality

All people engaging with the justice system and its processes should be treated in the same way.

Access

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

Plea negotiations

Discussions that occur between the prosecution and accused aimed to resolve the case by getting the accused to plead guilty

Jurisdiction

The power (or authority) of a court to hear and determine cases

Original jurisdiction-the

The power of a court to hear a case for the first time

Appellate jurisdiction

The power of a court to hear a case on appeal from a lower court

Sanction

A penalty imposed by the courts on a person who is guilty of an offence

Rehabilitation

The treatment of the offender to address the underlying reasons for their offending.

Punishment

The offender should be punished to an extent and in a manner that is just in all the circumstances.

General deterrence

To discourage other people (the entire community) from committing similar crimes

Specific deterrence

To discourage the offender from committing the crime again.

Denunciation

To show the court’s (and by extension society’s) disapproval of the offender’s conduct.

Fine

An amount of money ordered to be paid by the offender to the State of Victoria.

Imprisonment

Involves removing the offender from society, placing them in jail for a set period of time Involves the removal of their freedom and liberties

Aggravating factors

Increase the culpability of an offencer/the seriousness of the offence.

Burden of proof

The legal duty/obligation on the party who made the allegation.

Standard of proof

The standard of proof required in civil law rests on the balance of probabilities

Civil dispute

Occurs when an individual’s rights have been infringed by the actions or omissions (failure to act) of another person and that person suffers damages as a result of the action.

Mediation

The process in which an imperial third person/s assists the parties to identify the issues of the dispute and will facilitate discussion of possible solutions.

Conciliation

A method of dispute resolution in which an impartial third party tries to get the disputing parties to reach an agreement

Arbitration

A method in which the parties refer the dispute to a third person to make a decision.

Administrative convenience

Using a court hierarchy means that cases are distributed according to their complexity and seriousness

The parties

● The plaintiff is responsible for initiating the case, and therefore they carry the burden of proof, therefore they must provide the evidence to prove the facts claimed are more likely to be true on the balance of probabilities.

Class Actions

If a group of people all have claims against the same party, they may be able to join together to commence a representative proceeding

Consumer affairs victoria

A business unit of Victoria’s Department of Justice and Regulation that monitors and regulates consumer affairs.

CAV dispute resolution

CAV attempts to resolve disputes using conciliation.

Victorian Civil and Administrative Tribunal (VCAT)

A tribunal whose aim is to resolve disputes. They have a broad range of powers, and its decisions are legally binding.

VCAT dispute resolution

An attempt is made to resolve disputes before a hearing

Courts

Enables people to resolve disputes without the costs, delays and stress associated with court

Damages

Damages is a sum of money granted to the plaintiff, to be paid by the defendant.

Special damages

Compensate the plaintiff for items that can be easily measured in terms of money, such as medical expenses, loss of income etc.

General damages

It is difficult to accurately determine the cost of pain, suffering and loss of enjoyment of life.

Aggravated damages

Awarded for insult and humiliation of the plaintiff due to the defendant’s nasty or offensive behaviour.

Exemplary damages

To make the defendant an example to the rest of the community.

Nominal damages

A small amount of money is paid to the plaintiff.

Contemptuous damages

a summons of small amount of damages that display a contempt for the claim made, or to make a mockery of the court action

Injunctions

An order awarded against the losing party in a civil action that commands or prohibits certain behaviour.

Royal Assent

Final approval of a Bill by the Crown so that it can become a law/Act of Parliament.

Representative nature

Refers to a government which represents the views of the majority of the people

What is statutory interpretation:

Occurs when courts are applying the law to cases

Judicial conservatism

Judicial conservatism refers to the idea that the courts should show restraint or caution when making decisions and rulings that could lead to significant changes in the law.

Petitions

A formal, written request to the parliament for action in relation to a particular law that is in need of reform.

Demonstrations

Actions when a group of people gather together to express their common concern or dissatisfaction with an existing law or issue.

The Victorian Law Reform Commission

Independent, government-funded organisation that develops, monitors and coordinates law reform in Victoria.

Royal commissions

Major public inquiry about a matter of public concern or importance

Reasons for reform

Reasoning for why constitutions would need to be altered due to change

Preparation

A bill is prepared that sets out the proposed changes/alterations.

Bipartisan support

Bipartisan support refers to the approval of two or more political parties.