legal unit 1

Flashcards generated from lecture notes on the legal system.

Define sanction

A penalty (fine or prisonsentence) imposed by acourt on a person guiltyof a criminal offence

What is the role of the law in achieving social cohesion

Provide guidelines on acceptable behaviour, so that members of the community are aware of the type of conduct to actions will and will not be tolerated

What is the role of the individuals in achieving social cohesion

Know the laws and obey them

What is the role of the legal system in achieving social cohesion

Update the laws and apply and enforce them. Apply consequences when laws have been breached by people

Define social cohesion

Willingness of members of society to cooperate with each other on order to survive and prosper

Define Fairness

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

What is codification?

Parliament confirms a precedent by enhancing the legal principles into the legislation, this may happen when the parliament agrees with the common law

What is abrogation?

Parliament can change override or abrogate a common law, this happens when parliament disagrees with the common law. E.g changing from a law harming to protecting a community

How can Courts influence Parliament?

Courts can highlight the need for parliament to change the law, happens when the courts are reluctant to change the law or they believe parliament tis in a better position to make changes e.g. outdated laws should be updated

What is Access?

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

Define Equality

People should betreated in the same way,but if the sametreatment createsdisparity ordisadvantage, adequatemeasures should beimplemented to allow to engage with the justicesystem without disparity

What does it mean for laws to be Enforceable

If people are to break the law it must be possible to catch and punish them, if it’s not possible the law isn’t effective

Why must laws be Known

The public need to know about the law, if they don’t know they can’t follow to. However it’s the individuals responsibility to know the law.

Why must laws be Clear and Understood

Its important for the law to be written in such a way that the public can understand it, so the intent of the law is clear. If it is ambiguous, unclear, written in language then it cant be followed

Why must laws be Stable

If the law is constantly changing people may be uncertain as to what the law actually is and may not be effective

What is the role of the parliment

Pass laws for the good government of Australia in its area of law making powers. These include migration, defence, currency and taxes

House of Representatives roles

Lower house, form the government, represent the peoples in its roles including when debating matters and making laws, introduce and pass proposed laws (bills) review any bills passed by the senate

Senate roles

Upper house, review bills that have been introduced in and passed by house rep, ensure equal representation of the states in the senate, and introduced and pass bills ( house rep does majority senate can do some)

Legislative assembly

Lower house, form the government, represent the peoples in its roles including when debating matters and making laws, introduce and pass proposed laws (bills) review any bills passed by the legislative council

Legislative council

Upper house, review bills that have been introduced in and passed by house rep, ensure equal representation of the states in the senate, and introduced and pass bills ( assembly does majority council can do some)

Common law

Laws made by judgesthrough decisions madein cases (court)

Statute law

Laws made by parliament also know as acts

Specialisation and expertise reason for Vic court hierarchy

Dif courts specialize in dif cases and develop expertise.

Satisfy the right to appeal reason for Vic court hierarchy

Enables parties to appeal higher if not satisfied with lower court (believes there is an error)

Administrative convenience reason for Vic court hierarchy

Allows smaller minor cases heard In lower courts and more large complex large cases to be heard in higher courts

Satisfy the doctrine of precedent reason for Vic court hierarchy

Process f law making thru courts depends on the decisions made in the higher courts that is binding to lower courts enabling people to predict outcome

Role fo the jury

Used to determine whether a person is guilty of an offence

Mens rea and actus reus of murder

The mens rea is the mental element of the offence and requires intent and willingness to harm a person in result to death. The actus rea is pursing the voluntary action of intentionally killing a human and requires the defendants actions to of caused the victims deaths

Stages of a bill through parliment

Intro and first reading Second reading committee stage/ consideration in detail third reading the bill passes the first house same procedure in the second house ( from intro ) the bill passes the second house royal asset- governor general approves proclamation the act becomes a law

Indictable offence

A serious offence generally heard before a judge and jury in Cc or SC e.g murder.

Summary offence

Minor offence heard in MC

What is the rule of law

Everyone is bound by and must adhere to laws, the laws should be such that people are willing and able to abide

Define social cohesion

The willingness of members of society to cooperate with each other in order to survive and prosper

Define bail

The release of an accused person form the custody on condition that they will attend a court hearing to answer the charges

Define parole

The supervised and conditional release of a prisoner after the minimum period of imprisonment has been served

Define original jurisdiction

The power of a court to hear a case for the first time (i.e. not on appeal from lower court)

Define standard of proof

The degree or extent to which a case must be proved in court

Define Statutory interpretation

The process by which judges give meaning to the words or phrases in an act of parliament (i.e a statue) so it can be applied to resolve the case before them.

Define Strict liability

Where culpability or responsibility for committing a crime can be established without having to prove there was mens rea

Define Burden of proof

The obligation of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the persecution in a criminal case.)

Define Binding precedent

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

Define Persuasive precedent

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

What is the role of legal system in protecting the rights of an individual

Dispute resolution bodies ( courts and tribunals) help people settle disputes to avoid disruption in society

Victorian court hierarchy

High court of Aus (fed) Supreme court of Vic (appeal)  Supreme court (trial)  County court  Magistrates

Presumption of innocence

The right of a person accused of a crime to be presumed not guilty until proven otherwise

Age of criminal responsibility

Minium age a person must be to be charged wth a crime. Under 10- cant be charged 10-13 can be if the prosecution proves the child knew their action was wrong (doli incapax) 14 or older can be charged

Doli incapax

Incapable of evil. A child aged 10-13 is presumed to be incapable of forming mens rae bc they do not have the intellectual or moral capacity to the difference between right and wrong

Principal offender

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

Accessory

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

Crimes against a person

Crime that has directly impacted a human being , they have had the act or omission directly impact them. E.g homicide

Crimes against a property

Crimes that involve the unlawful taking, damage or destruction of someone else property. E.g. theft/ property damage

Institutions that enforce criminal laws + role

Serve community an the law and to enforce the law, Vic Pol- serve vie community uphold the law and promote safe and secure orderly society, SO police prosecutor, IO OPP. Australian federal police, investigate offence that have a federal aspect they look at international threats and impacts to the country, arrest without warrant or search.

Institutional powers v individual rights

Powers are given to bodies to carry out their job of enforcing the law, these powers have to be balanced with individual rights because of an insinuation has too much power induvial may be mistreated. If their powers are too limited crime prevention and law enforcement can be difficult.

Stages of a criminal case

Arrest  questioning  court proceedings  imprisonment of the offender

Powers v rights during arrest

Power- arrest accused with or without a warrant. Right reduce to go to police station unless under arrest, must be informed of the reason at the time, right to stay quiet during arrest.

Powers v rights during questioning

Power- investigation official can question that person within a reasonable time. Right- informed they don’t have to say anything, informed they can communicate with a friend, right to an interpreter

Powers v rights during court proceeding

Power- commence criminal action against an accused for the purpose of determining whether a person is guilty of committing an offence and to sentence the offender for their actions. Prepare a case speak with the witness and obtain evidence Right-charged decided by a competent court after fair hearing, presumed Inno, informed of nature and reason for charge, legal aid, prepare for defence, interpreter, challenge or rebut

Powers v rights during imprisonment

Power- search and examine any person seize unauthorised goods and arrange for medical test Right- 1 hour outside, provided with adequate food and water, clothing, medical care and treatment, special care if need, practice religion, 1 half hour visit a week

Punishment: Purpose for sanctions

Penalise the offender to allow victims a sense of justice and criminal behaviour not tolerated

Deterrence: Purpose for sanctions

Discourage offenders and community from offending general ( community) specific ( offender)

Denunciation: Purpose for sanctions

Demonstrates community disapproval of actions

Protection: Purpose for sanctions

Safeguard community from offender by preventing them from further offending

Rehabilitation: Purpose for sanctions

Reform an offender in order to prevent them from committing again

Factors reducing sentences

Nature and gravity of offence, early guilty plea, Mitigating factors, lack of prior conviction, remorse

Factors increasing sentence

Nature and gravity of the offence, Aggravating factors, prior offending, impact of the offence on any victim injury, loss or damage as a result of the offence

List one type of Sanction

Record a convection and order the offender serve time in prsion

Court secured treatment order with conviction

Recorde a convictionand order that theoffedne be detain andtreated in a mentalhealth facility as asecutriy patient

Drug and alcohol treatment order with conviction

Record a conviction in order that the offender undertake a supervised drug or alcohol treatment programme If they plesd guilty and the drug court is satisfied the offenders dependent on drugs, alcohol.

Youth Justice Centre order with conviction and Youth residential centre order with conviction

If involving an offender 15 years or older, record conviction and order that the young offender be detained in Youth Justice Centre.

Community correction order with or without conviction

With or without recording a conviction, make a community corrections order the order will have certain conditions attached to it.

Find with or without conviction

Through without recording a conviction already offended to pay a fine which is a sum of money payable to the state

Adjournment with or without conviction

Recorded conviction and order the release of the offender with conditions attached or without recording a conviction, ordered the release of the offender on adjournment of hearing with conditions attached.

Discharge with conviction

Record a conviction an order the offender to be discharged.

Dismissal without conviction

Without recording a conviction, ordered the charges to be dismissed.

Extrinsic motivation

External factors, engage in an activity because we want a reward.

Competent/ mastery.

Develop skills, confidence and performance first to achieve.

Socialisation, social benefits, social and personal development.

Social benefits, social and personal development

Cognitive.

Mental benefits Learn a new skill.

Stimulus avoidance.

Somethings unpleasant and uncomfortable is avoided. Escape stress.