Legal Studies Review

Flashcards based on lecture notes about legal effects of statutory interpretation, precedent, the relationship between parliament and courts, criminal law, and sanctions.

What is the effect of statutory interpretation?

By giving meaning to unclear words/phrases, judges clarify what the statue means so that it can be applied to resolve the dispute before them, thereby broadening or narrowing its meaning.

What is a Precedent?

A principle established in a legal case that should be followed by courts in later cases where the material facts are similar.

What is Ratio Decidendi?

A Latin term meaning ‘the reason’; the legal reasoning behind a judge’s decision. Ratio decidendi forms the binding part of a precedent

What is Stare Decisis?

A Latin term meaning ‘let the decision stand’. The basic principle underlying the doctrine of precedent

What is Binding precedent?

The legal reasoning for the a decision of a higher court that must be followed by a lower court in the same court hierarchy in cases where the material facts are similar

What is Persuasive precedent?

The legal reasoning behind a decision of a lower of equal courts within the same court hierarchy, or a court in a different court hierarchy that may be considered and therefore used as a source of influence or followed, even though it is not binding.

What is Obiter dictum?

A statement made by the way – that case be persuasive in future cases.

Why do parliament and courts have a complementary relationship?

The parliament and courts need to work together to ensure that laws are workable and enforceable

How do Decisions by courts about the meaning of the words in statute form precedents?

Statutes form precedents that become part of the law to be followed in future

What is Codification of common law?

Parliament can make laws that confirm precedents by passing an act of parliament that reinforces a principle established by a court

What is Abrogation of common law?

Parliament can change or override – that is abrogate – common law by passing an act of parliament that specifically abolishes the particular common law principles

How do Courts influence parliament?

Courts can influence changes in the laws made by parliament through the comments judges make during court cases, such as by indicating in a judgement that they think a law should be changed by parliament

What is Criminal law?

An area of law that protects the community by establishing and defining what crimes are and sets down the sanctions for people that commit them

What is a crime?

An act or omission that breaks an existing law, is harmful to an individual or society as a whole, and is punishable by law

What is Civil law?

An area of law that sets out the rights and responsibilities of individual groups and organisations, and regulates private disputes when these rights have been infringed

How do Laws help members of society?

Laws help members of society live together in a harmonious way by establishing boundaries of acceptable behaviour.

What is a crime?

A crime is an act or omission (that is, failing to undertake an action), that is against an existing law, harmful to an individual or society, and punishable by law.

What is the presumption of innocence?

The right of a person accused of a crime to be considered innocent until proven otherwise.

What is Burden of proof?

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

What is Standard of proof?

The strength of evidence needed to prove the case

What are the Roles of House of Representatives?

To form government, to represent the people, introduce and pass bills, receive any bills

What are the Roles of the Senate?

Review bills, ensure equal representation of states, Introduce and pass bills

What are the Roles of legislative assembly?

Political party with majority in lower house forms government, represent the people, Introduce and pass bills, Review any bills

What are the Roles of Legislative Council?

Review bills, introduce and pass bills

What describes Supremacy of parliament?

Final law-making power rests with parliament, which can repeal and amends its own statutes and pass legislation to override common law

What is Statute Law?

A law passed by a state parliament or Commonwealth Parliament

How does the court system help society?

Provides a means of resolving disputes and enforcing the law peacefully and without resorting to violence

What are the Reasons for Court Hierarchy?

Allows for specialisation and expertise, parties to a court case to lodge and appeal, administrative convenience, for the operation of the doctrine of precedent

What is the primary role of the courts?

To apply existing laws to the facts in cases brought before it to resolve cases

How can a court make law?

Interpreting the meaning of the words, deciding on new issue that is brought before the court where there is no legislation in the area

What are examples of crimes against a person?

Assault, murder, stalking

What are examples of crimes against Property?

Arson, burglary, theft

What are examples of crimes against Society as a whole?

Drug and terrorism offences

What are examples of crimes against The criminal justice system?

Perjury

What constitutes a Summary offence?

Less serious types of crime generally heard in the magistrates court

What constitutes a Indictable offence?

Serious criminal offences, heard in county or supreme courts

Who is an accessory in a crime?

A person who does an act to help another person who has committed a serious indictable offence to avoid being apprehended, prosecuted, convicted or punished

Who is the Principal offender in a crime?

A person who has carried out the actus reus (guilty act) and has therefore directly committed the offence

What is a defence to criminal charges?

A justification or lawful reason for a crime

What are the General defences to a crime in Victoria?

Self Defence, Mental Impairment, Duress, Sudden or extraordinary emergency, Automatism, Intoxication, Accident

When may an accused use self-defence as a defence to a crime?

If they: 1. Believed that their actions were necessary to protect themselves; and 2. Perceived their actions to be a reasonable response in the circumstances (that is, proportionality)

When may an accused use the defence of mental impairment?

If, at the time of the offence, they were suffering from a mental illness and, as a result, they: 1. Did not know what they were doing because they had little undemanding f of the nature of their actions; and 2. Did not know their conduct was wrong or could not reason like an ordinary person

When may an accused use duress as a defence?

If, at the time of the offence, they had a reasonable belief that: 1. A threat of harm existed 2. The threat would have been carried out unless the offence was committed 3. Committing the offence was the only reasonable way to avoid the threatened harm 4. Their conduct was a reasonable response to the threat

When may an accused use sudden or extraordinary emergency as a defence?

If, at the time of the offence, they had a reasonable belief that: 1. There was a sudden or extraordinary emergency 2. Their actions were the only reasonable way of dealing with the situation 3. Their actions were a reasonable response to the situation

When may an accused use automation as a defence?

They committed the offence involuntarily due to having, at the time of the offence, a total loss of control over their bodily movements

When may an accused use intoxication as a defence?

If, at the time of the offence, they acted involuntarily or without intent due to being in an intoxicated state

When may an accused use accident as a defence?

This applies if the actions the accused took to commit the offence were involuntary, unintentional, or unforeseeable by an ordinary person

What is Murder?

The unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification

What is Culpable Driving Causing Death?

The act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs/alcohol

What is Assault?

The intentional or reckless use of direct or indirect force or the threat of force against another person without a lawful excuse

What are the Elements of Assault?

The accused applied force or threatened to apply force, the application or threat of force was intentional or reckless, and there was no lawful justification or excuse

What are the possible defences to Theft?

Mental impairment, mistake of fact, lack of intention, duress

What are the possible defences to Robbery?

Duress, intoxication, lack of force or threat, lack of intent to steal

What are the possible defences to Burglary?

Lack of intent, rightful entry, duress, mistake of fact

What is the role of the police?

To serve the community and the law, and to enforce criminal law

Who are people who are suspected/accused of committing crime and people who are guilty of crimes given rights?

Are given rights, for example, the right to presumed innocent until proven guilty

What is a sanction?

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

What is a fine?

An amount of money ordered by the court to be paid by the offender to the state of Victoria

What are CCOs – Community Correction Orders?

A flexible, non-custodial, supervised sanction that the offender serves in the community

What are the roles of the jury?

To be objective, listen and remember the evidence, understand directions and summing up, deliver a verdict

What are the five purposes of sanctions?

Rehabilitation, punishment, deterrence, denunciation and protection

What is Rehabilitation in terms of a Sanction?

Aims to reform the offender so they can become a law-abiding citizen

What is Punishment in terms of a Sanction?

Imposes a penalty to ensure the offender suffers consequences for their actions

What is General Deterrence?

Discourages the public from committing similar crimes

What is Specific Deterrence?

Discourages the offender from reoffending

What is Denunciation?

Sends a strong message that the court and society disapprove of the offender’s behaviour

What is Protection?

Aims to safeguard the community by removing the offender if they are dangerous

What is the difference between concurrent sentence and a cumulative sentence?

One sanction sentences for multiple offences are served at the same time, and the other each sentence is served one after the other

What is the effect of statutory interpretation?

By giving meaning to unclear words/phrases, judges clarify what the statue means so that it can be applied to resolve the dispute before them, thereby broadening or narrowing its meaning.

What is a Precedent?

A principle established in a legal case that should be followed by courts in later cases where the material facts are similar.

What is Ratio Decidendi?

A Latin term meaning ‘the reason’; the legal reasoning behind a judge’s decision. Ratio decidendi forms the binding part of a precedent

What is Stare Decisis?

A Latin term meaning ‘let the decision stand’. The basic principle underlying the doctrine of precedent

What is Binding precedent?

The legal reasoning for the a decision of a higher court that must be followed by a lower court in the same court hierarchy in cases where the material facts are similar

What is Persuasive precedent?

The legal reasoning behind a decision of a lower of equal courts within the same court hierarchy, or a court in a different court hierarchy that may be considered and therefore used as a source of influence or followed, even though it is not binding.

What is Obiter dictum?

A statement made by the way – that case be persuasive in future cases.

Why do parliament and courts have a complementary relationship?

The parliament and courts need to work together to ensure that laws are workable and enforceable

How do Decisions by courts about the meaning of the words in statute form precedents?

Statutes form precedents that become part of the law to be followed in future

What is Codification of common law?

Parliament can make laws that confirm precedents by passing an act of parliament that reinforces a principle established by a court

What is Abrogation of common law?

Parliament can change or override – that is abrogate – common law by passing an act of parliament that specifically abolishes the particular common law principles

How do Courts influence parliament?

Courts can influence changes in the laws made by parliament through the comments judges make during court cases, such as by indicating in a judgement that they think a law should be changed by parliament

What is Criminal law?

An area of law that protects the community by establishing and defining what crimes are and sets down the sanctions for people that commit them

What is a crime?

An act or omission that breaks an existing law, is harmful to an individual or society as a whole, and is punishable by law

What is Civil law?

An area of law that sets out the rights and responsibilities of individual groups and organisations, and regulates private disputes when these rights have been infringed

How do Laws help members of society?

Laws help members of society live together in a harmonious way by establishing boundaries of acceptable behaviour.

What is a crime?

A crime is an act or omission (that is, failing to undertake an action), that is against an existing law, harmful to an individual or society, and punishable by law.

What is the presumption of innocence?

The right of a person accused of a crime to be considered innocent until proven otherwise.

What is Burden of proof?

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

What is Standard of proof?

The strength of evidence needed to prove the case

What are the Roles of House of Representatives?

To form government, to represent the people, introduce and pass bills, receive any bills

What are the Roles of the Senate?

Review bills, ensure equal representation of states, Introduce and pass bills

What are the Roles of legislative assembly?

Political party with majority in lower house forms government, represent the people, Introduce and pass bills, Review any bills

What are the Roles of Legislative Council?

Review bills, introduce and pass bills

What describes Supremacy of parliament?

Final law-making power rests with parliament, which can repeal and amends its own statutes and pass legislation to override common law

What is Statute Law?

A law passed by a state parliament or Commonwealth Parliament

How does the court system help society?

Provides a means of resolving disputes and enforcing the law peacefully and without resorting to violence

What are the Reasons for Court Hierarchy?

Allows for specialisation and expertise, parties to a court case to lodge and appeal, administrative convenience, for the operation of the doctrine of precedent

What is the primary role of the courts?

To apply existing laws to the facts in cases brought before it to resolve cases

How can a court make law?

Interpreting the meaning of the words, deciding on new issue that is brought before the court where there is no legislation in the area

What are examples of crimes against a person?

Assault, murder, stalking

What are examples of crimes against Property?

Arson, burglary, theft