legal studies revision Flashcards
explain the key differences between a rule and a law (provide example of the difference) ?
A rule is typically a guideline or a principle that is established by an authority figure or an organisation to govern behavior or conduct within a specific context. An example of a rule would be the dress code for employees at a particular company.
A law is a legal regulation that is enforced by the government. An example of a law would be the speed limit on a particular road.
Explain the concept of the rule of law. Explain the pyramid.
The rule of law means that everyone, including the government, must follow the law. It means that there are clear rules and procedures in place, and that everyone is treated equally under the law. This helps ensure that people are not unfairly punished, and that everyone has the same basic rights and protections.
The top “equality before law” . This means that the legal system should treat all individuals equally, regardless of their background.
The second highest on the pyramid is “ checks and balances on the use of power”. this make sure that the law is fair and people should act fair in the courts according to the law.
positioned in the middle of the pyramid comes “rights of the accused and victims”. the rights of the accused refer to the protections and guarantees that are afforded to those who are accused of a crime. The rights of victims refer to the protections that are provided to those who have been harmed by a crime. one the same line comes “presumption of innocence” and “independence of the judiciary”.
explain the characteristics of an effective law
- Law should be clearly known to the public - laws should be written in a clear and understandable way so that people can easily understand what is expected of them.
- Law must be acceptable to the community - laws should be consistent with the values, beliefs, and cultural norms of the society in which they apply.
- Law should apply equally to all -The law should be applied equally to everyone regardless of their background or status, so that everyone is treated fairly under the law.
- Law should be capable of being enforced - The law should be enforced consistently and effectively, so that people know there are consequences for breaking the law.
explain the role and PURPOSE of the separation of powers doctrine in the Australian legal system
The role and purpose of the separation of powers doctrine is to ensure that no one branch of government has too much power. The doctrine of the separation of powers divides the institutions of government into three branches:
- legislative- makes laws. they write, debate, and vote on bills that become laws if they are approved by both houses and signed by the President.
-executive- puts the laws into operation. responsible for carrying out the laws that are passed by the legislative branch.
- judiciary- explains the laws. it is responsible for making sure that laws are constitutional and that they are applied fairly. The judicial branch is responsible for resolving disputes and making sure that people are treated fairly under the law.
explain the difference between onus of proof and standard of proof ?
Onus of proof: is a responsibility that a party has to prove a particular fact or issue in a court case.
Standard of proof: level of evidence that is required to prove a case. In criminal cases, the standard of proof is “beyond a reasonable doubt,” which means that the evidence must be so strong that there is no reasonable doubt that the defendant is guilty.
explain how the court hierarchy operates in the Australian legal system?
Courts and Tribunals operate in a hierarchal system. This means that a court or tribunal is bound by any decisions of a higher court or tribunal. the hierarchy moves upwards from the Magistrates Court to the District Court to the Supreme Court and high court.
Magistrates Court is the District Court, which deals with more serious criminal matters such as serious assaults and drug offences, as well as more complex civil claims.
The District Court also hears appeals from decisions made in the Magistrates Court.
the Supreme Court has jurisdiction over the most serious criminal matters, such as murder.
role of the High Court is to interpret the Australian Constitution, which is the foundational legal document of the country, and to provide authoritative guidance on the meaning of federal laws
how to classify offences (Indictable: crimes and misdemeanours and non-indictable: regulatory and simple) (offences against the person, property or public)
- Indictable Offences: Indictable offences are serious criminal offences that are generally heard before a judge and jury in a higher court. These offences are classified into two categories:
- Crimes: These are the most serious types of offences, such as murder, rape, and robbery. They carry severe penalties, including lengthy imprisonment or life imprisonment.
- Misdemeanours: These are less serious offences, such as theft or assault, that carry shorter prison sentences or fines.
- Non-Indictable Offences: Non-indictable offences are less serious criminal offences that are heard in a lower court, and can be classified into two categories:
Regulatory Offences: These are offences that relate to breaches of regulations or administrative laws, such as traffic offences or breaches of occupational health and safety laws. They are generally punishable by fines rather than imprisonment.
Simple Offences: These are minor offences, such as disorderly conduct or minor property damage, that carry low fines or community-based orders.
explain reasonable suspicion in relation to the criminal investigation process
reasonable suspicion means that the police officer or investigator must have a reason to believe that the person has been involved in criminal activity, or is about to be involved in criminal activity. This suspicion must be based on specific facts or circumstances that would lead a reasonable person to believe that the person in question is involved in criminal activity.
explain how right to silence contributes to just and equitable outcomes
The right to silence is recognised as a fundamental common law right in all Australian jurisdictions. In Queensland, it is codified in Section 397 of the Police Powers and Responsibility Act (PPRA), which states that a person’s right to refuse to answer questions is protected, unless they are required under legislation to answer the questions.
The right to silence means that a person has the legal right to remain silent and not accuse themselves when they are being questioned by law enforcement. This right is important because it helps to ensure that everyone is treated fairly and has an equal chance to defend themselves in court.
explain what role police contribute to the criminal investigation process?
The purpose of an investigation is for police to gather information and evidence. This helps them identify an offender; to determine whether a criminal offence has been committed or to help them decide what course of action to take.
explain the difference between types of evidence collected by police?
Police collect different types of evidence during an investigation, which can be categorized into two broad categories:
Direct evidence: This is evidence that directly proves a fact, such as an eyewitness testimony or video footage.
Circumstantial evidence: This is evidence that is not direct but can be inferred from other facts. For example, if someone’s fingerprints are found at the scene of a crime, it may be circumstantial evidence that the person was present at the crime scene. Circumstantial evidence requires interpretation and inference to establish a fact.
Collection techniques include picking, lifting, scraping, vacuum sweeping, combing and clipping
explain the rights and responsibilities of police in relation to search and seizure of a person or property ?
In Queensland, specifically, police have the right to seize items of a person’s property if they reasonably suspect it may be evidence relevant to the commission of a criminal office, or property to which the search warrant relates. This power is granted under the Police Powers and Responsibilities Act 2000 (Qld).
Rights:
- Police may search a person or property if they have a valid warrant issued by a judge or magistrate.
- Police may also search a person or property without a warrant if they have reasonable suspicion that a crime has been committed, or if they believe that the evidence is in immediate danger of being lost or destroyed.
Responsibilities:
- Police must respect the rights of individuals and not use excessive force during a search or seizure.
- Police must provide a copy of the warrant (if applicable) to the person being searched, and explain their reasons for the search.
- Police must also ensure that any seized property is properly catalogued and secured to prevent loss or tampering.
explain the rights and responsibilities of suspects, accused and victims
Suspects: A suspect in Australia has the right to remain silent and not incriminate themselves. They also have the right to legal representation and are entitled to a fair and impartial trial. It is the responsibility of the suspect to cooperate with the police investigation and to not obstruct justice.
Accused: an accused person has the right to a fair trial, which includes the presumption of innocence until proven guilty, the right to legal representation, the right to be present at their trial, and the right to present a defence. It is the responsibility of the accused to cooperate with their legal representation and the court process.
Victims: victims of crime have the right to be treated with respect and dignity, to receive support and protection, and to be informed about the progress of the investigation and the trial. Victims also have the right to make a victim impact statement and to seek compensation for any losses or damages suffered as a result of the crime. It is the responsibility of the victim to report the crime to the police and to cooperate with the investigation and legal process.
explain situations where search and arrest warrants are required
Search Warrants: Search warrants are usually required when the police need to enter a property and search for evidence related to a crime. Examples of situations where search warrants may be required include: suspected drug dealing or manufacturing
Arrest Warrants: Arrest warrants are usually required when the police need to arrest a person for a suspected crime.
Examples of situations where arrest warrants may be required include:
- suspected violent crime, such as assault or murder.
- suspected theft or burglary.
explain police discretionary powers
Police discretionary powers refer to the authority given to police officers to exercise judgment and make decisions in situations where the law is not clear or there is room for interpretation. These discretionary powers are necessary for police officers to be able to perform their duties effectively and to respond appropriately to different situations.
Law enforcement officers exercise police discretion when deciding whether or not to draw their weapon, make an arrest, shoot someone, search someone, render assistance to someone, or issue a ticket to someone.
