FINISH LEGAL
1A
Social cohesion and the rights of individuals is the cooperation of individuals to survive and thrive.
Legal and non-legal laws:
Non-legal laws are group or individual-made rules that are not enforced by the legal system.
Legal laws are enforced by the legal system.
Legal system [separation of power]:
Parliament makes laws.
Government administers laws.
Courts enforce laws.
Individual plus laws plus legal system equals social cohesion and protection of rights.
Voting is mandatory.
Laws attempt to keep social cohesion and discourage crime.
Human rights in the constitution:
Vote
Religion
Fair trials
Trade
No discrimination
The spirit of the law is what the law means, the intent for which the law was written, opposing the word of law.
Common law is judge-made laws in court.
1B with principles of justice:
Fairness is the ability for all to participate in the open and impartial legal system process; example matters are decided by an unbiased third party [judge, magistrate, or jury].
Participation: that's what the quality is, anyone engaging with the justice system is treated the same way or also aiding those who need it to create a system without disparity or disadvantage.
When enforcing the right to silence, you only need to say your name and address.
Access: physical and intellectual access to the court so that everyone can participate.
Courts enforce, protect rights, interpret the law, and enforce punishment.
Liability is the extent of blame you carry.
Formal equality is giving everyone the same amount of resources.
Substantive equality is treating people differently to achieve the same result.
1C characteristics of effective law:
Reflect society's values at the time.
Laws must be enforceable.
Laws must be known.
Must be clear and understood.
Laws must be stable.
People are more likely to follow laws if they reflect community values.
Rules are more likely to be followed if they are constant and unchanging.
Laws must be punishable.
13th person rule is the rule that only allows 12 jurors in the jurors' room.
1D courts and parliaments in law:
Statutory interpretation is judges' interpretation of the law.
The roles of parliament:
Represent people
To form government
To hold government to account
To debate issues
To make laws
To establish courts
To set jurisdictions
Government doesn't make laws; the whole parliament does. Parliament is bicameral. Parliament is made up of the lower house: the House of Representatives [green].
Upper house: the House of Senate [red]
Judges can make comments on law to influence parliament; courts can develop those.
Stages of a bill:
Introduction
Second reading where the bill is explained, debated, and voted
Committee stage detailed look
Third reading voted in final form
Bill passes first house
Goes through 2nd house
The bill is passed
Royal assent by governor-general
Proclamation act comes into operation
Act becomes law
Courts 3.5
Victorian court hierarchy:
High Court of Australia. Federal. Interprets the constitution.
Supreme Court is made up of a Court of Appeals or the trial division; the trial division is the first one to see a case.
County court deals with serious crimes.
Magistrate Court deals with minor crimes; hears cases up to ; they also hear failed hearings and pre-trials.
Statute law is a law made by parliament.
Specialist courts:
Koori court is a specialist aboriginal court.
Children's court accommodates and protects children during trials.
Coroner's court deals with suspicious deaths and fires.
The doctrine of precedent where a High Court makes a ruling that all lower courts then have to follow on similar trials; this is also known as binding precedent.
Guiding precedent: that judges should try and make similar decisions.
Reasons for courts:
Specialisation: each court becomes experts in their jurisdiction
Admin convenience, time, and resource allocation
Appeals
The doctrine of president, making courts consistent and predictable
Ratio decidendi = the principal a case establishes.
To adjourn = set a case for a later date.
Appellate jurisdiction = hearing a case on appeal
Common law AKA case made / judge-made law = laws made by courts
3.7 criminal law and civil:
Criminal law intends to protect, govern, punish/sanctions, between individuals and the state, prohibits behaviours.
Permission is the attempt to break law; in citations, R symbolises the crown.
Statutes to remember:
Crimes Act [1958]
Summary Offences Act [1966]
Torts is defamation, negligence, trespassing, and nuisance.
Criminal law protects and establishes the relationship between the individual and the state, as well as outlining sanctions.
Civil law includes individuals' rights and business rights; restores those whose rights have been infringed to their previous state.
No sanctions, only damages.
Contract law.
Private law: no state or police prosecution.
Sources of law: parliament [statutory], constitutional, and common law.
Types of law: criminal and civil.
Criminal law's purpose is to protect social cohesion.
The party bringing the case in criminal law is the prosecution.
The party defending a case in criminal law is the accused.
In criminal law, the prosecution bears the burden of proof.
In criminal law, the standard of proof is beyond reasonable doubt.
In criminal law, the decision is guilty or not guilty.
Outcome in criminal law is sentence or sanction; in civil law, the purpose is to help people to seek compensation.
In civil law, the plaintiff is the party bringing the case.
In civil law, the standard of proof is the balance of probabilities; in civil law, the decision is liable or not liable; in civil law, the outcome is the liable personnel is required to remedy the situation.
Relationships 3.6 between parliament and courts:
Main features of relationships:
Interpretation
Codification of common law
Abrogation of common law
Ability of courts to influence parliament
To codify is to put something in statute law to collect all laws on one topic together into a single statute.
Abrogation is taking away one of the interpretations over law to abolish or to cancel a law.
Precedent:
Binding is mandatory following of higher authority within jurisdiction.
Persuasive is not from higher all the time; not mandatory.
Guiding is influencing decision.
Doctrine quote follows other courts' decision.
Fairness: open and impartial participate.
Equality = different treatment of people to get equal results
Access = engage and participate in the court system on an informed basis
4.1 Proving guilt:
Purposes of criminal law:
Protecting individuals by establishing a criminal process
Protecting property private, public, trespass, stealing
Protecting society by setting clear standards. Public order and community safety
Protecting justice: provide a process, enforce, stop revenge
Criminal law defines and outlines sanctions
4.2 Presumption of innocence:
Beyond reasonable doubt
Standard of proof: the degree or extent to which a case is proved to a court
The presumption of innocence is protected by the burden of proof, the standard of proof, and police officers
Police officers have to have reasonable belief someone committed a crime before arresting
Once arrested, you have a right to the opportunity of bail and legal representation and silence and appeal
Trial can be adjourned until supplied
Previous crimes cannot be brought up in trial
Burden of proof is the obligation to prove a case unfolds to be initiated
4.3 Key concepts of criminal law:
actus reus = guilty act
mens rea = guilty mind; strict liability is responsibility without proving examples: drunk driving, fare evasion, no P plates, and tattooing a minor; however, if you provide reasonable reasons, you can get leniency
Theft has the elements of dishonesty, appropriation, and intention
Age under 10 cannot be charged
10 to 13 have to prove Mens Rea a very difficult to charge
14 plus can be charged
Doli incapax: 10 to 14-year-old kids cannot do evil or crime
The accused has the right to silence and the presumption of innocence
In strict liability, the prosecutor does not have to prove the mental state
4.4
Classification is social purpose and the type of offender/victim as well as the seriousness.
The social purpose/nature of crime:
Who did it hut?
Person
Property
Society
Justice system
Perjury is lying in court
Crime stats class
Division A People includes assault, homicide, manslaughter, stalking, harassment, and threatening
Division B includes property, arson, property damage, burglary, breaking and entering, theft, deception, and bribe
Divisions C drugs
Division Public Order terrorism threatening public order
Division E justice offence perjury
Division F other protecting rights and culture and improving society includes drunk driving and Transport offences travelling without a ticket
Offenders:
Cyber [e-crimes]
Prejudice crimes [hate crime]
Organised [gangs brothel/business]
Juvenile [10 to 18 years old]
White collar [government or corporate crime]
Seriousness:
Indictable or summary
4.6 possible participants in a crime:
Principal offender carried out actus reus
Accessory = does an act or assist a primary offender in a crime; the accessory believed has been committed and can help offender avoid:
arrest
prosecution
conviction
murder
manslaughter = unintentional, reckless, dangerous, negligent
infanticide = child under 2 killed by mother due to mental impairment from birth
child homicide = child under 6, manslaughter conditions
culpable driving causing death = motor vehicle, negligence, reckless
homicide firearm = discharge of firearm, normally manslaughter
elements of murder:
unlawful
accused acts voluntarily
causes victims death
acted with intent to kill or cause serious harm
sanctions:
max penalty murder = life without parole
standard = 25 years imprisonment
emergency worker = 30 years imprisonment
NT x3 higher murder rate than vic due to:
financial hardship
alcohol consumption
family dysfunction
mental health
crime
impacts = victim, community, offender
assault = intention/reckless use of force without lawful excuse
max penalty = 15 penalty units, 3 months imprisonment
elements of assault:
application of force or threat to
intentional or reckless
no justification
reasons for assault:
lawful arrest
correction of a child
sanctions
constitutions has no sanctions
sanctions are in the common law, statute law
DPP = director of public prosecution
independent officer
commencing
preparing
conducting
adverse publicity order = company must advertise the outcome of the case
fairness = impartial, open process
no one can have a suspicion of bias
equality = different treatment of people to get an equal result
access = engage and participate in the court system on an informed basis
delegated bodies = consumers affairs Victoria, environment authority vic EPA
LOCAL COUNCILS
STATE REVENUE OFFICE (SRO)
VIC ROAD
WORKSAFE CI
WAGE INSPECTOR VIC
VIC BUILDING AUTHORITY
commonwealth DELGATED BODIES
ASIC = aus security and investments commission
directors breach duties
ATO aus tax office
tax fraud
summary offences
ACCC aus competition and consumer commission
fair trading
product safety regulator
police can arrest without warrant to:
make sure offender appears in court
preserve public order
prevent further offence
ensure safety of public or offender
reasonably believe offender has committed an indictable offence
rights for arrested:
can refuse to go to station unless under arrest
under the HCR must be informed of arrest and proceeding
questioning
reasonable time since arrest
persons must be informed that they do not have to say or do anything and that what they do say may be used as evidence
can communicate with friends and family
reasons for court hierarchy:
-specialisation
-appeal
doctrine of precedent
convince
the jury
cannot be a juror if:
imprisoned for more than 3 years
on bail / remand
undischarged bankruptness
lawyer, judges, MPs
police
can be excused if:
old
ill
50 kms away + from Melbourne
financial hardship
carer
needed an unanimous verdict (11/12) accepted
unless:
murder
large drug offence
treason
commonwealth offences
deliberations are secret
hung jury = not unanimous = retrial
stengths of jury:
impartial, independent
community involved = reflect social values
shared responsibility = increase in accuracy
weakness:
they don't need a reason for their verdict
complexity of evidence = hard to understand
delay due to legal instruction
unconscious juror bias (clothes, conduct of offender)
exclusion of community (deaf or disabled,
difficulties:
lore = aboriginal term for law and morals, history, rules
elders run the system
focus on restoring balance
3.1 x more likely to be a victim
won't report out of fear that kids will be taken
adressing difficulties
culturally competent training
-developing specialised courts
young people
under 25
reputation damage
less opportunity for rehab
less opportunity for education
adressing difficulties =
community legal centers
skilled specialists in courts
changing crime responsibility age.