politics and law

Rule of law: The concept that both government and citizens both know the law and obey it meaning all people no matter their age, status, religion, race, or any other attribute should be ruled equally. It is essential for maintaining  a free, democratic, and fair society. It ensures the government doesn’t exercise power arbitrarily, and citizens afforded human rights protections.

Features:

• No one is above the law 

• The law is applied equally and fairly 

• The law is knowns and accessible

• Presumption of innocents 

• Open independent and impartial judiciary 

• No retrospective laws should be made 

• Laws are made in an open transparent way by the people 

• Government agencies to behave as model litigants 

• Fair and prompt trials 

• Separation of powers (legislature, executive, judiciary) 

• People can only be punished in accordance with the law

• The law and administration is subject to open and free criticism

Appeal: In law, an appeal is a legal process where a party requests a higher court to review a decision made by a lower court, arguing that the decision was incorrect or based on a mistake of law.

Doctrine precedent: once a decision has been made on legal principles by the higher court it is a general principle ( not specific) and others follow

Binding precedent: a decision made by a higher court that must be followed in a lower court

Persuasive precedent: Works up the court hierarchy. A persuasive precedent does not need to be followed by other courts, but may be mentions or drawn when considering a new case. (works up hierarchy)

Presumption of innocents: In criminal law anyone charged with a criminal offence is presumed to be innocent until proven guilty by the prosecution. Guilt must be proven beyond reasonable doubt. This ensures individuals will be punished by a court in only accordance with the law.

Rules of evidence: Rules of evidence regulate the way in which criminal trials are conducted. To the extent that is possible, they also make the conduct of criminal trial predictable. The right to procedural fairness ensures that all parties will be given a reasonable opportunity to present their case.

Judges: Judges are also required to interpret the legislation if there is a dispute the meaning or how to apply an act in a case. These interpretations then become apart of common law. This is becoming less frequent however, as legislation increasingly covers most areas of law.  

Open Justice: A fundamental principle to common law is that justice should be administered to the public. This means that court hearing are generally open to the public and there should be nothing to discourage publicization of court proceedings. Although they can exclude certain people necessary from this if impacts justice or in certain circumstances. (rarely happens) 

Eg. Kids names aren't publicly disclosed in children's court. 

Natural Justice: Common law requires all courts and tribunals to comply with rules of natural justice (aka. Procedural fairness).

Rules include:

• Each party has opportunity to present their own case

• Judge/jury have no personal involvement or bias 

• The decision-maker should take into account of all relevant considerations, and ignore anything irrelevant

• The decision should be based of only the evidence presented to the decision-maker

Trial by jury: juries are an integral part of the criminal trial process and their importance should not be underestimated. Australian democracy is underpinned by citizen participation.

• Juries are used in both criminal and civil cases

• Jury trials occur in supreme courts, district courts, and federal courts

• Jurors are randomly selected from the Australian electoral role 

• Jurors are randomly selected then summoned to attend court, where they may be selected for a specific juror role 

Ensures authority doesn’t have too much power, lawyers use plain language so its accessible to public , and allows for community perspective.

Court Hierarchy: Provides a forum for legal disputes between individuals, or individuals and governments.

Jurisdictions: authority to determine certain issues, arranged hierarchy.

Why is it important?

• Provides system for appeals (allows for fairness and for mistakes to be corrected) 

• Allows for specialization in certain issues eg. Family court  

• Administrative convenience (low courts = less experienced lawyers) 

Problems: 

• Duplication of admin increases costs 

• Can be confusing which court your case should be heard in 

• Too many appeals 

• Everyone should have access to best judges 

Types of crimes: 

Summary (simple): Any offence that isn't considered a crime.

Eg. Disorderly conduct, drink driving, public indecency

Indictable: serious offences considered a crime  

Eg. Rape, murder, robbery, grievous bodily harm

These matters start in the magistrates court and progress up.

Possible penalties: 

• Fine 

• Suspended sentence of imprisonment

• Conviction put on record 

• Community service/behaviour bond 

• House arrest 

• Orders: restraining, intervention, compensation ect. 

Sanctions: Purpose is to protect society from those to break the law

Punish: 

• So victims families can seek retribution (instead of taking it into their own hands).

• Deprivation of freedom is the ultimate punishment in Australia.

• To  protect society from people who could be a threat 

Protect: Some offenders are given long sentences because…

• Horrendous nature of crime 

• Lack of remorse 

• Offenders attitude 

One way of protecting is restraining orders, intervention acts and AVO's / DVO's

Denunciate: 

• Sends a message to intolerance of behaviour to public 

• Reaffirms societal norms, views and values 

• Met with significance disapproval and sever punishments

Deter: People form committing similar crimes in the future.

General deterrent: A punishment that deters other people from committing crime.

Specific deterrent: Aimed for particular offender, long prison sentences are common for both general and specific

Rehabilitate: Aims for offenders to get better. Offers opportunities for education, work, counselling in hopes they will change. Drug offenders are sentenced with mandatory drug rehabilitation.

Eg. Medical, counselling, vocation.

Rules of evidence: 

• Found in common law and statutory laws 

• Applies when party disputes admissibility of evidence 

• Excludes unreliable evidence

Definition of admissible evidence: Any document, testimony, or tangible evidence used in a court in law which goes towards helping prove or establish essential elements to case.

Relevancy: 

• Evidence must be relevant 

• Admissible evidence may be heard in magistrate, judge, and jury when deciding case

• 'inadmissible' means it cannot be used to prove issue 

Types of evidence: 

• Physical eg. Photos, DNA, fingerprints, weapons 

• Documentary eg. Messages, letters witness testimony (most common) a witness can bring in physical evidence 

A jury's verdict must be solely based on evidence. Judge must explain law to jury. 

Direct and circumstantial:

Direct: evidence which establishes the material fact in dispute

Eg. Eye witness sees defendant steal money from bank

Circumstantial: evidence regarding fact court has asked to infer further fact in order to arrive material fact.

Eg. Eye witness saw person running from bank at that time.

Hearsay evidence: 

• Information that a witness giving evidence of recounts being told something by someone else 

• Excludes as evidence because persons words can be distorted in retelling 

Admissions:

A statement acknowledging certain facts circumstance. Ad missioning is admitting to a specific part but not guilt to the crime as a whole.

Confessions:

A statement made by an accused person acknowledging guilt to crime. Defendant admits guilt. Wrongful admittance can be grounds for an appeal because of exclusion of evidence.

Expert witness: 

• Can only give fact not opinions unless deemed an expert 

• Expert evidence is only admissible when questions are with boundaries 

• Judge decides whether evidence from experts opinion is admissible

Character witness: 

• Assists court in better understanding in personality of accused as well as context surrounding crime.

• Character references carry significant weight when final decision as to the penalty that is handed down other times its not.