Legal studies UNIT 1 combined

AOS 1, 2 AND 3

Principles of justice (POJ)

when thinking about justice the following the 3 principles of justice (Fairness, access, equality) should be considered.

Fairness

involves impartial treatment for all people under the law w/out fear or favour. it is about fair processes and procedures.

example of fairness (POJ)

considered innocent until proven guilty & a fair trial

Access

involves the provision of a range of methods and institutions to settle disputes in the legal system: access to legal information, legal personnel, and legal bodies. Access can be impeded by time, cost and stress.

example of access (POJ)

the availability of courts or tribunals to hear a case. Online legal info provided by Victoria Legal Aid.

Equality

all citizens should be treated equally before the law. No one should be treated advantageously or disadvantageously. however, sometimes to treat people the same you have to treat them differently.

examples of equality (POJ)

providing additional assistance to someone with a mental impairment

characteristics of an effective law

V.E.C.K.S

reflects societies VALUES

must be ENFORCEABLE

must be CLEAR

must be KNOWN

must be STABLE

criminal law

Deals with offenses against the state, like theft, assault, or murder, where the government prosecutes the accused, and penalties can include fines or jail.

aim of criminal law

Aim is to protect society and to sanction offenders. Includes crime against the person (murder), property (theft), the state (treason) or the legal system (perjury). Prosecution (brings the case forward) vs Accused. Outcome is a sanction.

what is a crime

An act or omission that is against an existing law. Punishable by law.

civil law

Handles disputes between individuals or organizations, like contract issues or personal injury claims, where the goal is usually compensation rather than punishment.

aim of civil law

Aim is to regulate the conduct between parties to a dispute, and to remedy a wrong that has occurred. Includes tort law (negligence), contract law, family law (divorce) and consumer law (sale of goods). Plaintiff (brings the case forward) vs Defendant. Outcome is a remedy (damages or a injunction(restraint)).

define civil law

Civil law regulates disputes between individuals and groups, and seeks to enforce rights where harm has occurred.

sources of law - developing or avoiding earlier precedents

Developing or avoiding earlier precedents-

R.O.D.D.

Reverse- higher courts can reverse the precedent on the same case.

Overrule- a higher court can change the precedent.

Distinguish- facts are different enough to avoid binding.

Disapprove- a court may be forced to follow but can express disagreement which can influence later decisions.

what can courts not do?

create new laws

when can judges make laws?

if there is no existing common law for that situation

Binding precedent

the precedent was set buy a higher court in same hierachy. facts of the precedent case are similar to new case.

persausive precedent

the court that set the precedent is in another state or country OR lower/same court set the precedent

Upper and Lower houses

(magistrates, senate, monarchy)

upper house/senate house

--Represents states and territories

--Reviews and debates laws passed up by the lower house

lower house/house of representatives

--Represents electorates

--Introduces and debates new bills (laws)

--Government is formed by the party that has the majority

monarchy/governer general

--Represents the King in Australia

--Approves laws after being passed through both houses

--Performs ceremonial and constitutional duties

Principles of justice

F-Fairness, Impartial treatment to all, innocent until proven guilty

A-Access, Available access to legal resources and information

E-Equality, equally treating citizens, sometimes to treat people equally you need to give people different treatment

differences between laws and rules

LAWS are official regulations made by the government that everyone must follow, with serious consequences if broken (e.g., fines or jail).

RULES are guidelines set by specific groups or organizations (like schools or sports teams) that apply only to their members, with less severe penalties.

high court of australia

The highest court, handling constitutional matters and appeals from the Supreme Court. Its decisions are final.

court of appeal

Reviews decisions from the County and Supreme Court to check for legal errors. It does not hold new trials.

supreme court

Hears the most serious criminal cases, like murder, and large civil disputes. It also reviews some lower court decisions.

county court

Deals with serious criminal cases (except the most serious like murder) and civil cases with unlimited claims. It has jury trials for criminal cases.

magistrates court

Handles minor criminal cases, traffic offenses, and civil disputes under $100,000. It does not have jury trials.

relationship between courts and parliment

Complimentary Relationship-

--Statutory relationship - interpretation from precedents

--Codification of Common Law - confirming common law precedents

--Abrogation of Common Law - parliament can override laws

--Ability of Courts to Influence Parliament - judges can influence parliaments to change laws

why does the court hierachy exist?

Court cases typically start from the bottom and make their way up, the court hierarchy exists because it allows for specialisation and expertise, it allows for appeals, it allows for the doctrine of precedent (lower courts can be guided by higher courts) and it allows for administrative convenience.

statute law

laws made by parliament

common law

judge-made laws during cases

stare decisis

common law is created by judges

ratio Decidendi

a legal decision

obiter dictum

a judges opinion, expression or remark that has no legal effect

statutory interpretation

acts of parliament are written in general terms to cover a wide variety of situations. it is left up to the courts to decide which incidents fit under the act.

appeal

someone who is not happy with the outcome of their case can appeal it to a higher court

precedent

a previous court decision that guides how judges decide similar cases. Precedents are used to promote consistency in legal rulings.

doctrine of precedent

the decisions made in higher courts across common cases become binding on lower courts

administrative convenience

distribution of cases according to their seriousness

codified

a law that is formally written into statue by parliament

abrogated

when a law is terminated, leaving it with no legal effect

sanction

fine or imprisonment

burden of proof

responsibility of proving a case

standard of proof

level of certainty needed to prove a case. Criminal, beyond reasonable doubt. Civil, more likely than not

Strict liability offences & examples

crimes that do not require mens rea (guilty mind) and only actus reus (guilty act).

examples of strict liability offences

They tend to be summary offences (more minor crimes) such as drink driving, speeding.

presumption of innocence

-those accused should be treated as innocent as far as possible e.g. bail

burden of proof

is the requirement of the prosecution to prove the guilt of the accused

standard of proof

Beyond reasonable doubt is the standard of proof - this a high standard. the level of certainity needed to prove something in legal cases.

latin words relating to murder

malice aforethought - the intention to kill or cause serious injury

actus reus - 'guilty act' ' the physical act or unlawful omission that constitutes a crime.'

mens rea - 'guilty mind' 'Mens rea is the mental state or intent a person has when committing a crime."

doli incapax - 'a legal presumption that children between the ages of 10 and 14 are incapable of committing a crime.'

principal offender and other content

The principal offender is a person who commits the offense and carries out actus reus (the crime). People who assist with the planning or encourage the act to occur are also principal offenders.

•An accessory is a person who assists a principal offender after a crime has been committed. To be an accessory a person must believe or know that the offender has committed a serious indictable offense.

why is murder a crime?

- Murder is the unlawful killing of another person with malice aforethought (i.e. the intention to kill or cause serious injury), by a person aged 10 or older and of sound mind.

- it is a crime because it involves the unlawful and intention killing of another human being. it violates the fundamental right to life and is considered the most serious form of homicide.

summary offences

are minor criminal offences generally heard in the Magistrates' Court. They are less serious types of crimes. The curt procedures used for summary offences are less complex than those used for indictable offences.

examples of summary offences

drink-driving, minor assault and disorderly conduct.

indictable Offences

are serious criminal offences generally heard by a judge (and a jury if the accused pleads not guilty) in the County or Supreme Court.

Examples of indictable offences

murder, manslaughter, arson and rape.

heard summarily meaning ****

a legal case, especially a criminal one, is handled quickly and with less formality in a lower court, typically the Magistrates' Court, by a single magistrate.

Indictable offences heard summariliy

- The law allows for some indictable offences to be heard and determined summarily

- An indictable offence cannot be heard in the Magistrates' Court without the consent of the accused or if it is punishable by more than 10 years in prison or a fine greater than 1200 penalty units (approx. $200,000).

- it is quicker and cheaper than a trial

- the accused may receive a lesser punishment (2 years for single offense, 5 years for multiple)

examples of indictable offenses heard summarily

less serious assaults, criminal damage or theft of less than $100k.

fare evasion

Fare evasion is the act of deliberately avoiding payment for public transportation services.

elements of murder

•For a person to be found guilty of murder the prosecution must prove each of the following four elements beyond a reasonable doubt:

1.The killing was unlawful

2.The accused's acts were voluntary

3.The accused committed acts that caused the victim's death

4.The accused acted with intent to kill or cause serious harm (malice aforethought)

bail and how it relates to presumption of innocence

Bail relates to the presumption of innocence by allowing an accused person to remain free while awaiting trial, reflecting the principle that they are considered innocent until proven guilty.

define sanction

a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence

community corrections order

- a non-custodial sanction (i.e. one that doesn't involve a prison sentence) that allows an offender to stay in the community, whilst completing their sanction, with conditions attached to the order.

- it can be combined with a fine or imprisonment

-cant be imposed on offenders who commit serious crimes (e.g. murder, rape, manslaughter, kidnapping)

- have mandatory conditions e.g. reporting to & recieving visits from CCO officer

-other conditions may be placed upon offenders like electronic monitoring

Optional conditions may be placed upon an offender as part of a CCO such as electronic monitoring

What is the purpose of a community corrections order?

-to serve as a flexible, non-custodial sentencing option that allows offenders to remain in the community under strict conditions while being held accountable for their actions, promoting rehabilitation, reducing reoffending, and ensuring community safety.

-this refers to:

Punishment

Deterrence

Denunciation

Protection

Rehabilitation

( see other cards)

Purposes of sanctions (P.R.I.D.E)

Protection - Keep society safe

Rehabilitation - Help them change

Individual deterrence - Stop them doing it again

Denunciation - Show it's wrong

Everyone else deterrence - Warn others

What is punishment? (Purpose of sanctions)

one purpose is to ensure that an offender has been penalised for their actions. It allows victims (and their families) to feel a sense of retribution.

What is deterrence? (Purpose of sanctions)

aims to discourage the offender and society from committing the same or similar offences in the future. There are two types of deterrence in general (society) and specific (the specific offender).

What is denunciation? (Purpose of sanctions)

•this sends a message that this type of behaviour will not be tolerated by the courts. It demonstrates the community's disapproval of the offenders' actions.

What is protection? (Purpose of sanctions)

•long sentences may be imposed to prevent offenders from harming society. A particulry horrendous crime or lack of remorse may lead to courts imposing a sanction designed to keep a person out of society as long as possible.

What is rehabilitation?(Purpose of sanctions)

one purpose is to treat the offender and to encourage them to change their ways. This may be achieved through education, training and support.

What are the types of sanctions? ** check if needed

Custodial sanctions: when the offender is removed from society

Non-Custodial sanctions: when the offender serves the sentence in the community

What are the forms of sanctions?

Fines, community corrections order, imprisonment

What is a fine? (form of sanction)

a monetary penalty that is paid by the offender to the state of Victoria. they are expressed as penalty units ($192.31)

What is meant by imprisonment? (form of sanction)

the most serious sanction and involves removing the offender from society.

-Parole is the early release of an offender from imprisonment. However, conditions and supervision apply. Parole must be applied for and is not automatically granted.

-Concurrent sentences are served at the same time, while cumulative sentences are served one after the other.

role of the jury in a criminal trial

-The role of a criminal jury is to decide guilt or innocence, provide unbiased decisions, ensure community involvement in the legal system, share decision-making and ensure that cases adhere to the principles of justice.

-The concept of a jury is that a random group of people are selected to hear the evidence and hand down a verdict.

-only used in country and supreme courts NOT Magistrates or during court appeals

-Jury of 12 required in County and Supreme Courts; 3 extra jurors for long trials

-Jurors are random Victorian voters aged 18+, with some exemptions

-Each side has 3 no-reason challenges; unlimited for valid reasons

-Jurors decide guilt beyond reasonable doubt; judge explains the law

-Verdicts must be unanimous, except majority allowed for some crimes

-Hung jury means no verdict and possible retrial

-Deliberations are private; jurors cannot research trial info

criminal sanctions

legal penalty given by a court to someone found guilty of a crime, such as imprisonment, fines, community correction orders etc.

community service

-A diversion program is available in the Magistrates' Court for summary offences. It is a way of dealing with a criminal matter without entering a plea or being found guilty.

-The onus is on the offender to ask for a diversion. A diversion plan may involve doing some sort of community service or others.