Judicial Precedent

Question 1

Whats the doctrine of judicial precedent

Answer 1

The appellate court create law upon stare decisis

Question 2

what’s the criminal courts hierarchy

Answer 2

• supreme (appeal)
• appeal (appeal)
• high (appeal)
• crown
• magistrates

Question 3

Whats the civil court hierarchy

Answer 3

• supreme (appeal)
• appeal (appeal)
• high (both)
• county (trial)

Question 4

Whats the steps of a law report

Answer 4

• name case/judge
• hearing date
• court
• catchwords
• summary of facts/legal issues
• deviations of lower courts
• judgments

Question 5

What case is used for ratio decidendi

Answer 5

Brown- consent wasn’t a defence for Sado masochistic activity

Question 6

What case was used for obiter dicta

Answer 6

Brown- consent would be a defence for activity such as tattoos, piercings, sports

Question 7

What are the 3 types of precedents and when are they used

Answer 7

• binding- if material facts are similar
• original- when law never been decided before
• persuasive- not binding unless followed

Question 8

What case is used for original precedent

Answer 8

Radmach v granatino

Question 9

Whats an example of a persuasive precedent

Answer 9

• decisions of lower courts
• obiter dicta

Question 10

What are the 3 things followed by the courts when applying precedents

Answer 10

• follow- if binding or material facts are similar
• overrule- higher courts replace
• distinguish- find distinction between 2 cases then they don’t need to follow

Question 11

Whats a case example used for distinguishing

Answer 11

Wilson- distinguished from the case of brown and allowed consent

Question 12

What are the positives of judicial precedent

Answer 12

• law is flexible and can develop
• there are detailed law reports

Question 13

What are the negatives of judicial precedent

Answer 13

• too rigid- bad precedents can only change when a similar case reaches the appeal or supreme court
• can be multiple ratio decidendis (r v brown- report was 50 pages long)