legal exam one Flashcards
(51 cards)
1
Q
meaning of law
A
- set of enforceable rule that set down guidelines for relationships between people and organisations in society
- provides methods of ensuring the impartial treatment of people and outlining punishments
2
Q
laws are
A
- made by parliament ot judge
- apply to all members of society
- enforceable
- discoverable
- create rights and duties
- designed and intended to serve the public interest
3
Q
customs
A
established patterns of behaviour among people in a society or group
4
Q
rules
A
made by groups and only affect people in those groups
5
Q
values
A
values that society consider important
6
Q
ethics
A
things society believe are right and wrong
7
Q
characteristics of laws
A
- open to public scrutiny
- invoked without undue delay
- applied consistently
- allowing principles to be mitigated
- freedom
- access
- not retrospective
- human rights
- fairness
- equality
8
Q
nature of justice
A
- equality
- fairness
- access
9
Q
equality
A
achieving a just result that is good and fair according to the standards of the community
10
Q
fairness
A
recognises that simply treating people equally does not necessarily achieve a fair result when they were not equal to begin with
11
Q
access
A
capacity to gain access to the legal system
- knowledge of law and ability to get relevant information
- how accessible legal representation
- whether or not the court hears matters without undue delay
12
Q
legal aid
A
- means
- merit
- jurisdiction
13
Q
procedural fairness
A
- not condemned until their defence is fairly heard
1. adequate notice
2. entitled to hear all the other party has to say to the decision maker
3. entitled to ask questions, challenge and contradict the evidence of the opposing party - person making the decision should not be biased
1. declare any personal interest and rescue themselves and withdraw
14
Q
rule of law
A
- presumption of innocence
- independent judiciary
- law should be known
- not retrospective
- aware of charges
- not compelled to incriminate themselves
- supervised executive arm of government
- monitored police processes
- must be known what happens in court
15
Q
common law
A
law made in court by the decision of judges
16
Q
4 meanings of common law
A
- distinguish judge made and parliament
- distinguish common law court and courts of equity
- area of law including contract law and torts as opposed to other jurisdictions
- countries that have inherited their legal systems from britain
17
Q
characteristics of british law
A
- absence of independant fact finding by the judge
- lawyers acting adversarially
- presumption of innocence
- use of juries
- precedent
- reliance on oral argument by lawyers
18
Q
equity
A
law is so straight in its application that sometimes decisions aren’t always fair so equity law prevails over common law. courts now apply both when hearing a case
19
Q
precedent
A
limiting the ability of a judge to be creative when making a decision
20
Q
binding precedents
A
precedents set by superior courts of record
21
Q
adversarial trial system
A
- opposing party’s legal representatives do battle in the courtroom
defence can:
1. argue the accused has an alibi
2. present evidence of the accused good character and argue that they are unlikely to commit the offence
3. admit guilty act but deny guilty mind
22
Q
local court
A
- hear minor criminal matters and summary offences
- penalties may be imposed by a magistrate are lower than those imposed by a judge
- maximum jail term imposed 2 years or 5 for multiple offences
- nsw chief magistrate = judge peter johnstone
- local courts can sit as children’s and coroners court
- civil max $100 000
23
Q
district court
A
- all indictable offences except murder, attempted murder, treason, piracy, sexual assault in company or involving trafficking and large quantities of drugs
- heard by judge and jury of twelve
- civil mas $750 000 + matters involving motor accidents
- use of jury of 4 in some civil
24
Q
supreme court
A
determine most serious indictable offences like murder
- unlimited civil jurisdiction
25
court of civil appeal
- highest civil court
| - hears appeals from supreme, district + land and environment court + some tribunals
26
court of criminal appeal
- three supreme court judges
| - appeals can come from a single judge of the supreme court or district court
27
high court
- established in 1901 in the constitution
- seven judges
- only the highest appellate
- decisions and final
- chief justice of the high court in susan kiefel
28
statute law
- made by parliament
- act of legislation called a bill
- assented by the governor general
29
rule and structure of parliament
- body of elected representatives with the role to make laws
- debate proposed legislation and amend existing legislation
- australia and nsw are bicameral (upper and lower house)
- leader of nsw is the premier and leader of australia is prime minister
- leader is a member of the lower house
- senior ministers form the cabinet
30
legislative processes
1. bill is read and voted on three times in both houses
2. statute law prevails over common law
3. a bill being passed by both houses and is then signed by the queen's representative
31
delegated legislation
- provide the detail about how a particular act of parliament will be implemented
- requires particular specialist knowledge eg: local council
- delegated authorities cannot exceed the power given to them
- parliament retains power to reject any legislation made on its behalf
32
the constitution
- act of the UK parliament passed in 1900 assented by queen victoria
- created the commonwealth of australia in 1901
- colonies became states
- sets of the areas australian federal and commonwealth parliament can make laws
33
division of powers
between states and commonwealth
34
separation of powers
judiciary (high court) legislature (parliament) and executive ( prime minister, cabinet and police) arm
- check and balance preventing an abuse of power
35
plantiff
civil prosecution
36
prosecution
criminal prosecution
37
crime definition
- act or omission that injures the public welfare for which a punishment is prescribed
- imposed by judicial proceeding
- harmful to a whole community not just the victim as they upset social order
38
crime facts
1. criminal law contained in both common and statute law
2. serious indictable offences are prosecuted by the DPP
3. onus or burden of proof is on the prosecution to prove
4. must be satisfied beyond reasonable doubt
5. jury verdict can be unanimous or majority of 11-1 or 10-1 if deliberating for over 8 hours
39
elements that must be proven to be convicted
1. mens rea
2. actus reus
3. causation
40
procedural course of a criminal trial involving an indictable offence
1. charge read
2. defendant enters plea
3. jurys selected and challenged
4. jury sworn in
5. prosecution opening address
6. prosecution calls witness
7. defence cross examines witness
8. defence opening address
9. defence calls witness
10. prosecution cross examine witness
11. prosecution makes closing submission to the jury
12. judge sums up the case
13. jury deliberates
14. sentencing submission heard by judge
15. sentence pronounced
41
police
investigate crime, apprehend offenders, give evidence in court, conduct prosecution in local court
42
corrective service officer
run the prison system and guard defendants on trial in court
43
sheriff's officer
organise jury role and provide security in courts
44
judge
presides over district, supreme and high court
45
magistrate
presides over local court
46
juror
citizen randomly selected from electoral role to determine innocence or guilt
47
barrister
lawyer who is predominantly involved as the advocate presenting the case in court
48
solicitor
lawyer that prepares case material for the barrister, sometimes present cases in the local court
49
judge associate
judges secretary
50
court recorder
records audio or video of the court so that the transcript can be typed
51
court officer
fetches witnesses and administers the oath, shows documents to various parties in court
