Unit 1 - Legal

Landmark case

Landmark case

Involves a novel area of law where no existing law is available for courts to apply so their ruling becomes the definitive legal principal on that matter.

Ratio decedendi

the reason a judge gives for their decision.

Obiter dictum

Comments made by the judge that do not form part of the actual reasoning for the decision and only have persuasive value.

Binding precident

A precedent set by a higher court that must be followed by future cases in lower courts

persuasive precedent

a precedent set by a court of equal or lower status in the court hierarchy (or a different hierarchy) that is not binding but may have some influence on future cases.

Statutory interpretation

The process by which judges give meaning to words or phrases in an act of parliament so it can be applied to resolve a case before the court.

Overruling a precedent

a precedent can be overruled by a higher court in a different case

Reversing a precedent

A precedent can be reversed when the same case is taken to a higher court.

Distinguishing a precedent

If the material facts are significantly different from the material facts in a binding precedent, a lower court may not have to use the precedent.

Disapproving a precedent

When a court is bound by a precedent but expresses it’s disapproval with the precedent.

Abrogation

To cancel or abolish a court-made law by passing an act of parliament.

Codification

When parliament passes law to put a precedent into legislative form to make it permanent.

Fairness

Impartial and just treatment or behaviour without discrimination.

Equality

People should be seen as equal before the law and have the opportunity to present their case as anyone else without disadvantage.

Access

People should be able to understand their legal rights and pursue their case

Reflect society’s values

For a law to be effective it must reflect the current values of society. If a law is in line with societies beliefs and values people are more likely to follow it, this means that laws should change with society.

Laws must be enforcable

If people break a law it must be possible to catch and punish them. If this isn’t possible people may be less likely to follow it because they won’t fear punishment.

Laws must be known

The public must know about a law. If people don’t know about a law they can’t follow it.

Laws Must be clear and understood

it is important for a law to be written in a way so that people can understand it and so it’s intent is clear. If a law is ambiguous or unclear, it is possible people won’t follow it.

Laws must be stable

a law must be stable. if a law is constantly changing no one would be certain what the law is and may not be as effective as a law that has remained constant.

Criminal law

A body of law that protects the community by establishing crimes and setting sanctions for people who commit crimes. The 2 parties are the state and the accused. The standard of proof is beyond reasonable doubt. the offences are considered to be against society as a whole and are dealt with by police and the office of public prosecution who act oh behalf of the victims.

Cimes

a crime is an act or omission that breaks an existing law, is harmful to an individual or society.

Criminal law aim

To protect society, sanction offenders and to deter future offences.

Civil law

An area of law that regulated disputes between individuals and groups and seeks to enforce rights where harm has occurred. Civil disputes are private and do not involve the police. The 2 parties are the plaintiff and the defendant. The standard of proof is balance of probabilities.

Civil law aim

To remedy a civil wrong by returning the person who’s rights have been infringed to their original position. To achieve social cohesion and provides an avenue for people to seek compensation where a civil breath has occured.

Court hierarchy reasons

allows system of appeals, allows superior courts to establish precedence, provides administrative convenience and encourages the development of expertise in each level.

Court hierarchy

Magistrates, Children’s court, Coroners court, Supreme court trial division, supreme court of appeals and the high court

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Magistrates court

the criminal jurisdiction is for summary offences (less serious ones), indictable offences heard summarily, commital hearings and bail hearings. It’s civil jurisdiction is for damages between $10,000 to $100,000. there is no appellate jurisdiction

Children’s court

Criminal jurisdiction is trials where the accused was 17 or under when the crime was committed. Civil jurisdiction is disputes where the child is seeking emancipation. No appellate jurisdiction.

Coroners court

investigations into deaths that are suspicious in nature or are the result of a fire or occur in a public space. No appellate jurisdiction.

County court

Criminal jurisdiction is trials involving all indictable offences other than murder, treason or terrorism. Civil jurisdiction are claims for an unlimited amount of compensation. There are no civil appeals but may hear criminal appeals from the magistrates court on conviction only.

Supreme court - Trial division

Criminal jurisdiction is trials involving more serious offences such as murder, treason and terrorism. Civil jurisdiction is disputes involving claims for an unlimited amount of compensations on damages. They may hear criminal appeals from the magistrates on severity of sentence and point of law. They also hear civil appeals from magistrates.

Purpose of law

To maintain social cohesion and protect individuals rights

Sources of Law

parliaments, courts and statutory authorities

Relationship between parliament and courts

Parliament can establish courts and give then their jurisdiction, Parliament makes laws that courts apply to the cases before it, courts give meaning to the acts of parliament through statutory interpretation.

Supreme court of appeals

No original jurisdiction but they may hear criminal and civil appeals from the county court or from the trial division.

High Court

disputes from various levels of government or between an individual and the government. They typically involve matters pertaining to the constitution. They may hear appeals from various state courts of victoria.

The accused

a person charged with a criminal offence.

The prosecution

legal advocated for the state who formulate and present a case against the accused.

Summary offence

A less serious offence heard in the magistrates court

Indictable offence

a serious offence typically determined by a judge and jury in the county or supreme court.

Indictable offences heard summarily

less serious indictable offences where the accused has the option to have their case heard as a summary offence.

Actus reus

The physical element of committing a crime.

Presumption of innocence

The accused in a criminal case is assumed to be innocent until proven guilty. this is protected by the burden of proof (having the prosecution prove them guilty rather than proving themselves innocent), through the high standard of proof and the accused right to remain silent (the accused doesn’t need to answer any question and it is not seen as being guilty).

Meas Rea

The intent to commit a crime

Strict liability crimes

Crimes that do not require intent for the accused to be considered guilty - driving crimes.

Age of criminal responsibility

A child ages 10 to 13 can be charged with a crime of the prosecution can prove that the child knew their actions were wrong at the the time of the offence. Children ages 14 and above can be charged with a crime.

Burden of proof - criminal

The burden of proof normally lies upon the prosecution but may shift to the defendant if they are claiming a defence such as duress or self defence.

Crimes against the person

Crimes that cause physical harm to a person, these include, murder, manslaughter, culpable driving causing death, rape, assault, kidnapping.

Crimes against property

Crimes that involve actions towards land or goods rather than harming a person physically. these include, theft, burglary, arson, graffiti, trespass and destruction of property.

Defences to a crime

mental impairment, duress, self defence, sudden or extraordinary emergency, automatism, intoxication, accident.f

Types of civil law

Torts (defamation, negligence, trespass and nuisance), contract law, family law, wills and inheritance, employment law, equal opportunity and discrimination law.

Burden of proof - civil

the burden of proof lies in the plaintiff but may shift to the defendant of they are claiming a defence such as contributory negligence.

development of tort law

develops over time through the court system as judges establish principles of law that other judges then apply in other cases.

Negligence

The right to be protected from harm caused by the wrongful behaviour of others. for a breach to be established a duty of care was owed and breached, causation much have existed and damage resulted from a breach of care.

Defamation

The right to have ones reputation protected as well as the freedom of expression. For a breach to be established the statements made must be untrue, defamatory, refer to the plaintiff and the statement must have been communicated.

House of representatives

the lower house of the federal parliament where the government is formed because it has the most seats.

Senate

The upper house of the federal parliament when scrutiny of legislation takes place

Cyber-crime

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

Hate crimes

Criminal offences motivated by prejudice and bias against another person or group based on a personal characteristic

organised crimes

Criminal offences undertaken in a planned and ongoing manner by organised criminal syndicates or gangs

juvenile crimes

Criminal offences undertaken by young people aged between 10 and 14  years

white collar crimes

Criminal offences undertaken by people who work in government, businesses or in the corporate world. These people, who are often well paid and hold trusted positions of employment, use their position and/or influence to gain financial advantage.

Stare decisis

To stand by what has been decided. This ensures that there is consistency in the way that similar cases are decided.

Trespass

an area of civil tort law that involves the rights of an individual being breached due to unauthorised access to either their land, property or person by another.

Required elements of trespass

• unlawful intrusion

• intent to intrude

• consequential loss

Trespass to land

when an individual intentionally enters the land of another without a lawful excuse. It may also include instances when an individual who was initially welcome refuses to leave when requested to do so. trespass can also occur when belongings of an individual enter the land of another eg.pets or balls. Under common law trespass to the airspace above and land below also constitutes trespass.

Traspass to property

When another person interferes with goods that belong to another person, even handling someones goods without asking can be considered trespass to property. The plaintiff does not have to produce a title to demonstrate ownership, just that they had legal possession of the property

Trespass to person

occurs when an individual intentionally makes contact with another person without their consent. No actual harm needs to be established by the plaintiff. The 3 types of trespass to person are assault, battery and false imprisonment.

Defences to trespass

• permission was given

• the intrusion was lawful

• it was accidental

• self defence (to the person)

• Lawful possession (property)

• inevitable accident (property)

• repossession (property)

Trespass impacts on plaintiff

• financial loss

• loss of assets

• physical harm/pain

• psychological distress

• loss of liberty

Trespass impacts on defendant

• Legal costs

• potential criminal prosecution

• financial loss

• negative publicity/humiliation

• social consequences

Trespass case study

a man by the name of Lupco Slavesky sued the State of Victoria as the employer of 23 police officers.

Slavesky claimed the officers trespassed in his store and falsely arrested and detained him without a warrant. He believed they were corrupt and ‘out to kill him’.

While the court dismissed his outrageous accusations, his claim of trespass was upheld and he was awarded $28,300.

State parliament

Legislative assembly, legislative council and the govoner

commonwealth parliament

house of Representatives, the Senate, the crown + governor general

Civil vs Criminal law

civil law involves disputes between parties whereas criminal law is where prosecutions are brought against individuals or companies by or on behalf of the state. the possible consequence of civil law is a remedy whereas in criminal law it’s a sanction.

Principal offender

a person who has carried out the actus reas and therefore has directly committed a crime

An accessory

a person who knowingly assists another person who has committed a serious indictable offence to avoid being convicted.

Murder

involves the intentional and unlawful killing of someone.

defences to murder

• self defence, accused must believe that their actions were to stop themselves or someone else getting killed.

• mental impairment'

• duress

• sudden or extraordinary emergency

• automatism

• accident

Impacts of murder

• emotional trauma to victims family

• unwanted media to the victims family

• members of the community may no longer feel safe

• legal costs

• custodial sentences of murderer

culpable driving

The act of causing death or seriously injuring another person while driving a motored vehicle in a reckless manner or while under the influence of drugs or alcohol

Elements of muder

• the killing was unlawful

• The victim was a human being

• The accused caused the victims death

• The accused was of sound mind

• There was malice and intent

Elements of culpable driving

• The accused was the driver of the motored vehicle

• The accused culpable caused the persons death or injury while driving

Theft

The act of dishonestly taking property that belongs to someone else without their consent and with the intention of permanently depriving that person of it.

Elements of theft

• the accused took property belonging to another person

• The accused took the property with the intention of permanently depriving the other of it

• The accused acted dishonestly

Assault

The intentional or reckless use of force or the threat of force against another person without lawful excuse.

Elements of assault

• the accused applied force or threatened to apply force

• the application of force was intentional or reckless

• there is no lawful justification or excuse.

Impacts of assault

• disruption to family life

• trauma

• decreased community saftey

• legal costs to accused

• guilt and shame

Graffiti

Illegal drawing that defaces public or private property.

Elements of graffiti

• the accused marked publicly visible graffiti

• the accused did so without the owners consent

Impacts of graffiti

• cost of removal for victim

• lowers property price

• reduced feelings of safety

• payment of fines

• legal costs

Offensive behaviour

conduct that is calculated to wound feelings or arouse anger or outrage in the mind of a resonable person

Elements of offensive behaviour

• occurred in a public space

• used profane or obscene language

• used threatening or abusive words

• behaving in an insulting manner

Impacts of offensive behaviour

• trauma

• impact to family life

• loss of trust in community

• loss of reputation of accused

• legal costs

• guilt

nuisance

a type of tort law that involves interference with a person’s right to use and enjoy private and/or public property.

Wills and inheritance

Laws relating to this regulates wills, including when they are valid. These laws give guidelines about the decisions made by a will maker and how a persons estate will be divided of there is no will.

Contract law

covers the validity of contracts and the rights available to a person if a valid contract has been breached.

Family Law

deals with disputes between family members that are of a family nature, such as the division of of property between divorced people

Employment law

Laws that deal with disputes between employers and employees. disputes often arise in the workplace due to pay, discrimination of termination of employment.