Studied by 1 person
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
Note
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