unit 1

The role of individuals

responsible to ensure that they are aware of the laws and abide by them

The role of law

establish a framework in which people live, set boundaries for behaviour and make choices about how people live

The role of the legal system

set of methods and institutions which makes, administers and enforces law

Social cohesion

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

rule of law

principle that every member of a society, including the ruler or government, must follow the law

principles of justice

fairness, equality, access

fairness

impartial and just treatment or behaviour without favouritism or discrimination

equality

all people should be treated equally before the law regardless of their characteristics or attributes

access

the ability to approach or make use of something. laws and legals should make it possible for people to use their institutions

reflects society's values

laws are constantly in need of modernisation

be enforcable

must be possible to to catch/punish people who disobey the law.

be known

the public must know about the law. 'ignorance of the law is no excuse'.

be clear and understood

the intent of the law must be clear without ambiguity

be stable

must not change constantly

common law

a system of law based on precedent and customs

statute law

Law made by parliament

statutory intepretation

parliament creates statutes and the courts interpret them

codification of common law

parliament can confirm the common law precedent by passing legislation to codify the law into a statute

abrogation of common law

ability of parliament to change or override common law

Ability of courts to influence parliament

Courts can influence changes in the law by parliament through their comments made during court cases.

royal assent

a bill must be signed by the Queen's representative in order for it to become law

Doctrine of Precedent

The common-law principle by which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar.

precedent

an example that may serve as a basis for imitation or later action

stare decisis

lower courts should stand by what is decided in higher courts

ratio decidendi

The court's reasoning for its decision.

obiter dictum

A remark made by a judge in passing, which is not binding.

criminal law

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

crime

an act against the law

sanction

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

the state and accused

parties involved in criminal law case?

the state

who brings the action against the person alleged to have committed the crime. criminal law

the accused

the person the allegations are against. criminal law

charge

When the police formally allege that a person has committed a crime

conviction

when an offender has been found guilty and is recorded in court

assault, murder

example of a crime against the person

theft, property damage

example of a crime against property

illegal drugs, prostitution

example of a crime against morality

perjury, contempt of court

example of a crime against the legal system

treason

example of a crime against the state

civil law

regulates disputes between individuals and groups and enforces rights where harm has occurred

plaintiff

a party who makes a legal claim against another party. civil law

defendent

a party who is alleged to have breached a civil law and who is being sued by a plaintiff

remedy

provide a legal solution

sue

take civil action against another

compensation

what the plaintiff seeks

damages

a civil remedy

civil wrong

A tort is a:

defamation

a civil law, under which a person can claim their reputation has been damaged

tort law

civil law. Involving an act that brings harm to a person or damage to property

family law

civil law. marriage, divorce, adoption, de facto relationships

industrial and workplace laws

civil law. occupational health and safety, working conditions, work contracts, workplace agreements, union disputes

consumer law

civil law. tenancy agreements, sale of goods, advertising laws

property laws

civil law. wills, planning laws, real estate purchases

remedy

the consequence of a civil law:

protect society

aim of criminal law:

regulate conduct

aim of civil law:

when the statute is not clear

when might statutory intepretation occur?

if parliament agrees with common law

when might codification of common law occur?

when common law is interpreted wrong

when might abrogation of common law occur?

when courts are reluctant to change the law themselves

when might the courts influencing parliament occur?

secondary legislation

rules and regulation made by secondary authorities. e.g. local council

Reasons for a court hierarchy

specialisation, appeals, doctrine of precedent, administration convenience

Purpose of Criminal Law

to protect society and sanction offenders

Prosecution

represent the state of Victoria

Accused

person charged with the offence

Presumption of Innocence

ight of a person accused of a crime to be not guilty/ innocent until proven otherwise, beyond reasonable doubt

Standard of proof

the extent to which a case must be proved
- standard of proof is beyond reasonable doubt

How the presumption of innocence is protected

- a person who has been arrested or charged has the right to apply for bail
- accused has the right to silence
- accused previous conviction convictions cannot be revealed in court

Bail

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

Remand

alternative to bail where the accused awaits in jail

Crime

an act or omission that breaks a law, harms others and is punishable by law

Actus Reus

"a guilty act"
the physical element of a crime
- ie. stabbing a person

Mens Rea

"a guilty mind"
mental element of a crime
- ie. why they stabbed a person

Strict Liability

offences that do not have a mental element and thus do not require mens rea

Example of strict liability

summary offences
ie. consuming alcohol while driving

Burden of Proof

responsibility to prove allegations made in a case

Who holds the burden of proof

- held by party who brings the case to court
- in criminal law this is the prosecution
- burden of proof can be reversed so the accused holds the responsibility

Standard of Proof

strength of evidence needed to prove a legal case

Beyond reasonable doubt

standard of proof in a criminal case
- proved by prosecution
- refers to that there must be no doubt that the accused is guilty
- very high

Age of Criminal Responsibility

minimum age a person must be charged with committing a crime
- 10 years old in Australia

Doli Incapax

principal that states that a child ages between 10 and 13 years is presumed to be incapable of forming mens rea

Ways crime can be classified

social purpose, type of offender or victim and seriousness of offence

Why are crimes classified

allows for the level of crime in the community to be tracked and to establish a level of consistency which upholds principal of fairness

Social Purpose types and examples

Crimes against the person (section A): homicide and sexual assault
Crimes against property (section B): arson and property damage
Drug Offences (section C): deal and trafficking drugs
Public Order and security offences (section D): weapons and public security offences
Justice procedures offences (section E): perjury
Other offences (section F): driving offences

crime categories

cyber crime, organised crime, hate crime, juvenile crime, white collar crime

Cyber Crime

criminal offence in which the use of computer or information communication technology's (ICT) is an essential and central part of the offending

Hate Crime

a criminal offence motivated by hostility and prejudice to the victim ie. race

Organised Crime

criminal offence undertaken in a planned and ongoing manner by organised syndicate or gangs

Juvenile Crime

a criminal offence undertaken by a young person aged between 10-18

White-collar crime

criminal offences undertaken by people who work in the government, businesses or in the corporate world

The seriousness of the offence

two levels of offences
- indictable offence
- summary offence

Why is it important the crimes are classified by seriousness

provide people certainty on where their cases will be heard

Indictable offences

serious crimes heard in the country court

Indictable Offences criteria

- crimes against the state (Crimes Act 1958)
- heard in county courts or supreme courts
- jury involved
- "Trial"
- e.g. rape, manslaughter and rape

Indictable offences heard summarily

a serious offence that can be heard and determined as a summary offence if the court and the accused agree

Indictable offences heard summarily criteria

- magistrate decides if the case is heard summarily
- heard by Magistrates court
- court and accused must agree
- Under Criminal Procedure Act (2009)

Benefits of Indictable offences heard summarily criteria

- quicker and cheaper process
- accused may get a lesser sanction due to maximum prison terms magistrate can impose (10 years)

Summary offences

minor crimes heard by magistrate court

Summary offences criteria

- heard in magistrate court
- no jury
- "hearing"
- e.g. drink driving and minor assaults

Principal Offender

person who committed the offence and has the actus reus and men's rea
- any other person involved in the crime is also treated by the law as if they committed the crime ie. can be more than two principal offenders