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The role of individuals

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The role of individuals

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

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The role of law

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

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The role of the legal system

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

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Social cohesion

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

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rule of law

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

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principles of justice

fairness, equality, access

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fairness

impartial and just treatment or behaviour without favouritism or discrimination

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equality

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

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access

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

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reflects society's values

laws are constantly in need of modernisation

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be enforcable

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

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be known

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

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be clear and understood

the intent of the law must be clear without ambiguity

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be stable

must not change constantly

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common law

a system of law based on precedent and customs

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statute law

Law made by parliament

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statutory intepretation

parliament creates statutes and the courts interpret them

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codification of common law

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

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abrogation of common law

ability of parliament to change or override common law

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Ability of courts to influence parliament

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

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royal assent

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

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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.

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precedent

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

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stare decisis

lower courts should stand by what is decided in higher courts

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ratio decidendi

The court's reasoning for its decision.

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obiter dictum

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

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criminal law

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

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crime

an act against the law

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sanction

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

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the state and accused

parties involved in criminal law case?

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the state

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

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the accused

the person the allegations are against. criminal law

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charge

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

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conviction

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

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assault, murder

example of a crime against the person

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theft, property damage

example of a crime against property

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illegal drugs, prostitution

example of a crime against morality

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perjury, contempt of court

example of a crime against the legal system

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treason

example of a crime against the state

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civil law

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

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plaintiff

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

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defendent

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

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remedy

provide a legal solution

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sue

take civil action against another

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compensation

what the plaintiff seeks

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damages

a civil remedy

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civil wrong

A tort is a:

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defamation

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

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tort law

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

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family law

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

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industrial and workplace laws

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

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consumer law

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

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property laws

civil law. wills, planning laws, real estate purchases

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remedy

the consequence of a civil law:

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protect society

aim of criminal law:

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regulate conduct

aim of civil law:

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when the statute is not clear

when might statutory intepretation occur?

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if parliament agrees with common law

when might codification of common law occur?

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when common law is interpreted wrong

when might abrogation of common law occur?

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when courts are reluctant to change the law themselves

when might the courts influencing parliament occur?

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secondary legislation

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

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Reasons for a court hierarchy

specialisation, appeals, doctrine of precedent, administration convenience

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Purpose of Criminal Law

to protect society and sanction offenders

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Prosecution

represent the state of Victoria

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Accused

person charged with the offence

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Presumption of Innocence

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

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Standard of proof

the extent to which a case must be proved

  • standard of proof is beyond reasonable doubt

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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

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Bail

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

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Remand

alternative to bail where the accused awaits in jail

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Crime

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

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Actus Reus

"a guilty act" the physical element of a crime

  • ie. stabbing a person

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Mens Rea

"a guilty mind" mental element of a crime

  • ie. why they stabbed a person

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Strict Liability

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

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Example of strict liability

summary offences ie. consuming alcohol while driving

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Burden of Proof

responsibility to prove allegations made in a case

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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

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Standard of Proof

strength of evidence needed to prove a legal case

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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

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Age of Criminal Responsibility

minimum age a person must be charged with committing a crime

  • 10 years old in Australia

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Doli Incapax

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

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Ways crime can be classified

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

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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

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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

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