Civil Law and court hierarchy Flashcards
(26 cards)
Distinguish between Criminal and Civil Law
Criminal Law is protecting the rights of community members while protecting the interests of society, whereas Civil Law is the protection of the private rights of an individual
Define the adversary system of trial
The court system and the way trials run in Australia
What is the role of the jury?
System of a jury is based on the idea that all individuals in the community are responsible for the administration of justice.
• A jury is only used if the accused pleads not guilty
• Jury must listen carefully to all evidence and determine if guilty or not guilty
Provide 3 reasons why you may NOT have to serve on a jury
- You’re a lawyer or a police officer
- Have a criminal record
- You’re too old and won’t get paid for jury duty
Positives on the Jury system
- Impartial and unbiased decision making
- Ensures community involvement
- Shared decision making
Negatives on the jury system
- Having a jury extends a trial period
* Members of the jury may not understand all facts of the case
Identify and outline Four Key features of the adversary system
- Role of the parties
- Role of legal representation
- Strict rules on evidence and procedure
- Role of the judge
Role of the parties
prosecution and the defence are responsible for presenting their case
Role of legal representation
Parties may be represented by lawyers in court
Strict rules of evidence and procedure
Must follow strict rules of evidence and procedure
Role of the judge
judge acts as an impartial adjudicator
Positives of the adversary system
- Provides for a fair and unbiased hearing
- Community confidence
- Protects rights
Negatives of the adversary system
- State is more powerful than the individual
- The reliance on oral evidence
- Party control means that not all evidence may be disclosed
Define Tort
A tort is a civil wrong, allows the individual who has suffered to take legal action
Define Defamation
A written or oral statement that injures a persons good reputation
Explain all three elements to prove a defamation case
Element 1; The statement was defamatory, and the defendant communicated the defamatory statement to a third person
- A defamatory statement is a statement that is untrue and lowers an individuals reputation in the eyes of the community
- It is not necessary to show that the defendant intended to damage the plaintiff’s reputation
Element 2; The defamatory statement refers to the plaintiff
- A statement will be considered defamatory if others can identify the person about whom the statement is made
- A defamatory statement does not have to name the plaintiff
Element 3; The person suffers damage in some way as a result of the defamatory statement
- It is irrelevant if the defendant intended the damage to occur
- Damage can also occur as a result of implied meaning - it doesn’t necessarily have to be explicitly stated
Define negligence
A person should take reasonable care to ensure that their actions do not cause harm to others
Explain all three elements to prove a negligence case
Element 1; The plaintiff was a ‘neighbour’ of the defendant and was thus owed a duty of care by the defendant
- This means that the plaintiff does not have proof that the defendant actually knew their act would lead to the exact injury that occurred
- The plaintiff must only prove that it was reasonable for the defendant to expect some form of injury to occur after their act
Element 2; The defendant was careless and breached that duty of care
A duty of care will have been breached if the defendant fails to act as a reasonable person would have, in the same situation
Element 3; The defendant’s carelessness caused the plaintiff damage or injury
This damage or injury could be physical, such as a broken arm; mental harm, such as depression; or financial harm, such as the inability to work for a living
