classification of law

Question 1

what is public law

Answer 1

The law dealing with relations between the individual (meaning individual people or organizations) and the state (i.e the government)

1. criminal law
2. administrative law
3. constitutional law

Question 2

what is property law

Answer 2

The law relating to property – this includes the buying and selling of property such as houses.
Property is anything that can be bought and sold and includes land and objects.

Question 2

what is criminal law

Answer 2

The law dealing with crime.
A crime is any act or omission of duty resulting in harm to society that is punishable by the state – the victim in a criminal case is all of society.
Most crimes are statute and state based – Crimes Act 1900 (NSW)

EXAMPLES: murder, assault, theft, and drunken driving.

Question 3

what is administrative law

Answer 3

The law relating to the operation of the government and its various departments – ie. if you have a dispute with the government
Generally dealt with by specialist tribunals, e.g. NSW Civil and Administrative Tribunal

Example: Minister of State for Immigration and Ethnic Affairs v Teoh (1995)

Question 4

what is constitutional law

Answer 4

The law relating to whether the Commonwealth government has the power to do something under the Constitution.
All constitutional cases are heard by the High Court,

Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams Case)

Question 5

what is private law

Answer 5

The law dealing with relations between individuals (meaning individual people or organisations)
1. contract law
2. tort law
3. property law

Question 6

what is contract

Answer 6

The law relating to contracts – generally where one party claims that the other party has failed to fulfil the requirements of the contract.
A contract is a legally binding agreement between 2 or more parties.

Question 7

what is tort law

Answer 7

The law relating to civil wrongs, ie. when the actions of one person causes some type of harm or inconvenience to another person (other than a crime) or breaches their rights

Example: a driver on the road has a duty to drive at a reasonable speed. If a driver travels 20 miles over the speed limit, they have acted negligently. If they hit someone and hurt them, they have committed a negligence tort and likely owe the victim for their losses.

Question 8

criminal court proceedings

Answer 8

*In criminal court proceedings there is a prosecutor and a defendant (the accused)
*The state (through the prosecutor) brings the case to court.
*The onus is on the prosecutor to prove the case
*The standard of proof in a criminal case is ‘beyond reasonable doubt’
*Criminal cases can either be summary or indictable.

Question 9

Summary or indictable, proof and verdict

Answer 9

*A person can plead guilty or not guilty.
*The prosecution must prove the case beyond reasonable doubt by providing sufficient evidence to convince the court.
*The jury of 12 people reach a verdict of guilty or not guilty.
*The judge will then impose an appropriate sentence.
*A summary offence is heard by a magistrate in the Local Court, without a jury, less serious offences such as:
 speeding.
 DUI.
 shoplifting.
* An indictable offence is heard in District or Supreme Court, before a judge and a jury such as:
 robbery.
 assault.
 murder.

Question 10

Three elements in proving criminal offences

Answer 10

1. Mens rea – the ‘guilty mind’ = the intention of the accused to commit a crime. In traffic offences, the prosecution does not have to demonstrate mens rea (this is known as strict liability) but in all other matters, they must.
2. Actus reus – the ‘criminal act’ and refers to the fact the accused must have committed the offence charged with.
3. Causation – means that the prosecution must show that there is a link between the act and the crime.

Question 11

civil court proceedings

Answer 11

*Civil cases are court actions involving disputes between individuals.
*They Involve a plaintiff and a defendant.
*An individual or organisation can bring the case to court.
*The onus is on the plaintiff to prove the case.
*The standard of proof is ‘on the balance of probabilities’ – more likely than not

Question 12

Civil trial process

Answer 12

Plaintiff and defendant exchange documents called ‘pleadings’ that set out issues to be decided in court.
Parties can get information by a process of ‘discovery’.
Parties can settle the matter without trial if they agree.
If the plaintiff is successful, the judge can award a remedy e.g. injunction or damages.
Which court hears the case will depend on the monetary amount or the subject matter.
Jury at option of parties, but will be smaller (usually six)

Question 13

What’s the difference between criminal and civil court proceedings.

Question 14

legal personnel

Answer 14

There are many legal professionals who play an important role in court proceedings, including:
 judge.
 magistrate.
 judge’s associate
 barrister.
 prosecutor.
 Solicitor.
 witness.
 court officer.
 court reporter.

Question 15

Judges and Magistrates

Answer 15

 Judges and Magistrates preside over the courts.
 They are legally qualified professionals (usually barristers) with considerable experience Judges and Magistrates

Question 16

judges

Answer 16

• sit in intermediate and superior courts.
• decide on points of law, issue instructions to the jury and sentences and rulings.
• sometimes in civil matters, they sit without a jury = they determine the case.

Question 17

magistrates

Answer 17

*sit in the inferior courts.
*Issues rulings e.g. about evidence.
*role is to determine case - reach a verdict and determine the sentence.
*to ensure that justice is administered fairly and impartially.

Question 18

Solicitors and Barristers

Answer 18

*Barristers almost always receive their work through a solicitor. They represent the client in court.
*Most specialise in one area of the law:
 Tax
 Criminal
 Family Solicitors and Barristers

They have two main functions:
*provide legal advice, an ‘opinion’, on the legal facts presented to them. Usually indicates likely outcome, which allows the client to decide what course of action is best for them e.g. to settle or to plead guilty.
*present their client’s case in the court.

Question 19

What is a Judge’s associate?

Question 20

what is a solicitor

Answer 20

A solicitor is a lawyer who gives legal advice.

Question 21

what is a Barrister

Question 22

what is a prosecutor

Answer 22

the state or crown formally conducting legal proceedings against a criminal defendant

Question 23

what is a court officer

Answer 23

As a Court Officer you will play an important role in the administration of justice. Your duties will be varied and include welcoming jurors and handling enquiries from the public. assisting and instructing jurors from ‘rollcall’ and during the empanelling processes.

Question 24

what is a court recorder

Answer 24

Court staff member who records the hearing and writes down or types what is being said.

Question 25

what is a defendant

Answer 25

a person who is accused of a crime or a civil wrong, in a criminal; case, also known as the accused

Question 26

balance of properties

Answer 26

standard of proof required in a civil case

Question 27

jury

Answer 27

members of the public who listen to all of the evidence in a court case and decide on the verdict

Question 28

sanction

Answer 28

a penalty or punishment imposed for breaking the law

Question 29

damages

Answer 29

a monetary compensation for harm or loss suffered

Question 30

cross examination

Answer 30

questioning of a witness called by the party who did not call the witness.

Question 32

public law

Answer 32

the body of law governing relationships between individuals and the state.

Question 33

onus

Answer 33

burden or duty of providing the case to the court

Question 34

standard of proof

Answer 34

the level of proof required in order for the party that has the burden of proof to succeed.

Question 35

beyond reasonable doubt

Answer 35

standard of proof required in a criminal case.

Question 36

burden of proof

Answer 36

the responsibility of a party to prove a case

Question 37

plaintiff

Answer 37

a person who initiates a civil action

Question 38

Exanimation-in-chief

Answer 38

questioning of a witness by the party who called the witness.