Legal Studies - Unit 1

Fairness

Open Processes

Impartial Processes

Participation

Open Processes

Transparency:

Courts are open to the public

Law reports on proceedings made readily available

Scrutinise:

Community and the media

Impartial Processes

Judges and Jury:

Impartial and Independent

No bias, decisions made on facts presented in court

No perception or suspicions of a person may be bias

Participation

Legal Aid

Accused must know all the facts/evidence that will be presented against them (other parties must disclose even if its detrimental to their case)

Must have time to prepare case

Engage with Lawyer

Use interpreters

Trials without a unreasonable delay

Equality

Formal Equality

Substantive Equality

Formal Equality

Treat everyone the same

Substantive Equality

A way to accomodate for disparity and disadvantages

Access

Engagement

Informed Basis

Engagement

Physical access to the Courts (ramps for wheelchairs)

Technological methods (online conference for evidence)

Financial access

Victorian Legal Aid

Informed Basis

VLA

CLC

Google

Lawyer

Education about the law

Legal information

Legal support and services

Legal representation

Advantage of Fairness

Impartial judge and jury

No Bias

Disadvantage of Fairness

Jury has preconceived bias

Jury doesn't need a specific reason for decision

Systemic delays

Advantage of Equality

Judge and Jury afforded to everyone

Victorian Legal Aid & Koori Court

Disadvantage of Equality

Vunerable witness/disadvantaged groups

Lack of legal represenation for low SEO

Jury swayed on emotion not evidence

Advantage of Access

Legal advice and represenation for those who qualify for VLA

Plea Negotiations

Disadvantage of Access

Difficulties accessing information

Formalities of courts can be intimidating

Costs and Delays

Social Cohesion

Willingness of individuals to work together to survive and prosper.

Sense of belonging

Members challenge and work against disharmony

Opportunities in work, education and social activities

Individual Rights

Rights of individuals are protected.

Freedom of speech

Freedom of religion

Right to vote

Right to silence.

Role of the Legal System

To create, apply, and enforce laws to maintain social cohesion, protect individual rights, and resolve disputes fairly and effectively.

Role of Laws

Provide enforceable guidelines

Set expectations

Set boundaries for behaviour

Apply to everybody

Role of Individuals

Abide by the Law

Cooperate with law enforcement

Use the legal system

Characteristics of an Effective Law

Reflect society's values

Enforceable

Clear and understood

Known to the public

Stable

Reflect society's values

If society generally doesn't support a law, it will be ineffective as people will choose not to follow it.

Enforceable

If no one is punished for breaking a law, what will stop people from continuing to behave that way?

Is it possible for all instances to be caught, all of the time?

Clear and understood

If a law is ambiguous, unclear or written in legal jargon that people don't understand, then the law will be ineffective.

Known to the public

Citizens must be aware of the law to be able to follow it.

Stable

Remain consistent for an extended period of time.

Bicameral System

A legislative body two chambers.

Commonwealth Parliament

Upper:

Senate/ States' House

Acts as a House of Review

Lower:

House of Representatives

Forms government

The Crown:

Governor-General

Provides Royal Assent to new legislation

Victorian Parliament

Upper:

Legislative Council

Lower:

Legislative Assembly

Forms government

The Crown:

Governor

Provides Royal Assent to new legislation

Bill

A proposed law

Statute Law

Parliament-made Law

Aka legislation or Acts of Parliament

Common Law

Judge-made law, used when no statute applies.

Aka case law

Supremacy of Parliament

Statue law overrides common law

Subordinate Authorities

Authorities that can make minor laws in their area of expertise

Vicroads

Merri-bek

How laws are made?

First Reading: Bill is introduced.

Second Reading: Debate on bill's purpose

Consideration in Detail: Committee reviews and amends.

Victorian Human Rights Charter

Third Reading: Final vote.

Same process repeated in second house

Approval: Crown provides royal assent.

First Reading

Introduced to the first house (usually the lower).

Usually summarises the main provisions/purpose.

Second Reading

Purpose explained again and debated upon.

Considered against the Victorian Human rights charter

Consideration in Detail

Any changes they need to make

Royal Assent

Crown approves the bill

Victorian Court Hierarchy

Supreme Court of Victoria (Court of Appeal)

Supreme Court of Victoria (Trial Division)

County Court of Victoria

Magistrates' Court of Victoria

Reasons for Court Hierarchy

Specialisation and Expertise

Appeals

Administrative Convenience

Doctrine of Precedent

Specialisation and Expertise

Certain judges/court become experts in a certain area.

Appeals

If a party is not satisfied with the decision or believes an error has been made by the court they can appeal to a higher court to review the decision.

Administrative Convenience

Minor cases are heard in the Magistrates court.

The more complex cases are heard in the Supreme Court.

This allows for more efficiency.

Doctrine of Precedent

This enables individuals and lawyers to predict the likely outcome of a case.

Primary Function of Courts

To apply existing laws to the facts before them to make a decision

Precedent

When a court makes a decision in a case that is the first of its kind, and in doing so establishes a legal principle, the court is said to be setting a precedent.

Allow for cases with similar facts to have consistent decisions

Binding Precedent

Precedent that must be followed by lower courts within the same court hierarchy.

Persuasive Precedent

Precedent that a judge may choose to follow, but does not have to.

If the NSW Supreme Court makes precedent, it is persuasive for all Vic Courts.

If the County Court makes precedent, it is persuasive to the County Court.

Ratio Decidendi

The reason

Legal reasoning behind judge's decision

Stare Decisis

Let the decision stand

The basic principle underlying the doctrine of precedent

Obiter Dictum

By the way

Judge's comment that may be persuasive in a future case.

Ways to Develop or Avoid Precedents

Reversed

Overruled

Distinguished

Disapproving

Reversed

Same case goes to higher court on appeal and then the decision is changed.

When a precedent is reversed it no longer applies.

Overruled

A different case in a higher court overrules the decision from an earlier case.

When a precedent is overruled, it no longer applies.

Distinguished

The facts of the case are different from the binding precedent, and therefore they can make a different decision.

Disapproving

Court is bound by precedent but disagrees with it.

The precedent does not change, but a higher court may consider it when deciding a later case.

Relationship Between Parliament and the Courts

Statutory Interpretation

Abrogation

Codification

Influence of Courts on Parliament

Statutory Interpretation

Courts give meaning to the words in the statute law because they are ambiguous or unclear.

Abrogation

Parliament is able to change or override (abrogate) common law.

Codification

When Parliament makes law that confirms a precedent set in a court by passing an Act of Parliament that reinforces the principles established by the court.

Influence of Courts on Parliament

Courts can influence changes in the law by parliament through their comments made during cases and make the need for a change in the law known to parliament through their decisions.

Criminal Law

A body of law that protects the community by establishing crimes and setting sanctions.

Examples of Crimes

Crimes Against the Person - assault, rape, manslaughter, murder

Crimes Against Property - theft, property damage, robbery, deception

Crimes Against Morality - street prostitution, use of illegal drugs

Crimes Against the Legal System - perjury, contempt of court

Crimes Against the State - treason

Civil Law

Defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.

Types of Civil Law

Tort Law - negligence, trespass, nuisance, defamation

Family Law - marriage, divorce, adoption, de facto relationships

Industrial and Workplace Laws - occupational health and safety, working conditions, work contracts, workplace agreements, union disputes

Consumer law - tenancy agreements, sale of goods, advertising laws

Property law - wills, planning laws, real estate purchases

Purpose of Law

Criminal:

To protect society, to maintain order, to establish justice and to punish those who offend.

Civil:

To remedy a civil wrong by returning the person whose rights have been infringed to their original position.

Parties

Criminal:

Prosecution (DPP, The Crown, The State)

Accused

Civil:

Plaintiff

Defendant

Legal Penalty

Criminal:

Sanctions - prison, fine, community corrections order

Civil:

Damages (Remedy)

Burden of Proof (Criminal & Civil)

Criminal:

Prosecution

Civil:

Plaintiff

Standard of Proof (Criminal & Civil)

Criminal:

Beyond reasonable doubt

Civil:

Balance of probabilities

Rules vs Laws

Who makes them?

Who it applies to?

Who enforces them?

What are the consequences?

Rules:

Community

Community

Community

Detention, suspension

Laws:

Government, Courts, Subordinate authorities

Everyone

Police

Sanctions

Crime

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

Purpose of Criminal Law

Protect Individuals

Protect Society

Protect Property

Maintain Order

Uphold Justice

Protect Rights

Improves Society

Process

Makes laws

Enforces law

Determines guilt

Provides a sanction

History of Criminal Law

Historically criminal law was common law and developed through the court system.

Presumption of Innocence

Innocent until proven guilty

A guarantee by the state to its citizens that if they are accused of a crime they will be treated, as far as possible, as being not guilty of the crime until proven beyond reasonable doubt!

Protection against wrongful conviction.

Prosecution (those bringing the charge) must prove the case.

Now protected under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).

We are not determining innocence but rather guilty or not guilty.

How does POI work?

1. Burden of proving is on the prosecution

2. Case must be proved beyond reasonable doubt

3. Require an act of free will by the accused

4. Police have to have a reasonable suspicion before they can arrest

5. Can have the right to apply for bail if arrested. Only refused in certain circumstances

6. Right to legal representation

7. Right to silence

8. Heard on that case alone, no prior convictions are mentioned when determining guilt

9. Right to appeal a conviction

Elements of a Crime

Actus Reus

Mens Rea

Actus Reus

Guilty Act

Mens Rea

Guilty Mind

Intention

Strict Liability Crimes

Crimes that don't need mens rea.

aka Absolute Liability Crimes

Burden of Proof (Definition)

The responsibility to prove the facts of the case.

Prosecution

Standard of Proof (Definition)

The strength of evidence required to prove a case.

Beyond reasonable doubt

Age of Criminal Responsibility

The age a person must be to be charged with a crime.

Under 10 cannot be charged with a crime

Aged between 10-13 - Doli Incapax

People aged 14 years and over are criminally liable.

Doli Incapax

Incapable of evil

The presumption that a child is incapable to commit a crime.

Prosecution must prove that child knew at the time of the crime that their actions were wrong.

- Child's age

- Upbringing

- Prior Criminal history

- Medical and psychological reports

- What the child said and did before, during and after the crime

Participants in a Crime

Principal Offender

Accessory

Principal Offender

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

Accessory

A person who assists in a crime after the fact.

Division A

Crimes against the person

Homicide

Assault

Stalking

Division B

Property and deception offences

Arson

Burglary

Property damage

Division C

Drug offences

Trafficking drugs

Manufacturing drugs

Using drugs

Division D

Public order and security offences

Weapons

Explosives

Public security offences (terrorism)

Division E

Justice procedures offences

Perjury

Contempt of court

Division F

Other offences

Dangerous driving

DUI

Transport regulation offences

Cyber Crime

Crimes committed using computers and other electronic systems.

Online fraud

Creation of malicious software

Computer hacking

Juvenile Crime

Crimes committed by young people between the ages of 10 to 18 years of age.

Shoplifting

Vandalism

Assault

Property damage

White Collar Crime

Are criminal offences committed by people in the government, businesses or corporate world. They hold usually trusted positions of employment and will use their influence to gain financial advantage.

Tax evasion

Theft

Fraud

Investment scams

Summary Offence

Less serious types of crimes.

Generally heard in Magistrates' Court.

To hear a case summarily means a case without a jury.

Drink

Driving

Disorderly conduct

Minor assaults