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CMN228 > Session 2 > Flashcards

Session 2 Flashcards

1
Q

What is the rule of law?

A

It is the concept that both the governments and citizens know the law and obey it.

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2
Q

What can the rule of law be traced back to?

A

800 years ago with the development of the Magna Carta.

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3
Q

When was the term rule of law first coined?

A

1885.

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4
Q

Who coined the term rule of law?

A

AV Dicey.

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5
Q

Is rule of law an essential pillar of our democratic system?

A

Yes.

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6
Q

What is the main concept of rule of law?

A

Equality.

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7
Q

What does the rule of law provide to court proceedings?

A

Stability and predictability.

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8
Q

What could happen if the government was above the law?

A

It could lead to a sense of abuse of power and a state of anarchy.

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9
Q

What five elements are essential to the rule of law?

A

Fairness, rationality, predictability, consistency and impartiality.

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10
Q

What question does the rule of law ask?

A

What aspects of our society are the most important in a democratic society such as ours?

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11
Q

How does the rule of law manifest when it comes to hearings and trials?

A

Fair, unbiased and timely hearing/trial.

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12
Q

How does the rule of law manifest when it comes to defences?

A

Adequate notice to prepare a defence.

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13
Q

How does the rule of law manifest when it comes to legal representation?

A

There should be access to legal representation.

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14
Q

What is an example of legal representation?

A

Legal aid.

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15
Q

How does the rule of law manifest regarding prejudicial matters?

A

Prejudicial matters should be excluded.

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16
Q

What is an example of how prejudicial matters are excluded?

A

Prior convictions can not be revealed during trial.

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17
Q

How does the rule of law manifest in terms of innocence?

A

Presumption of innocence.

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18
Q

How does the rule of law manifest in terms of justice?

A

Transparency of justice.

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19
Q

What does transparency of justice mean?

A

Justice is not only done but seen to be done.

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20
Q

How does the rule of law manifest in terms of penalties?

A

Appropriate/fitting penalties.

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21
Q

What does the separation of powers require?

A

Separation of powers requires that three distinct parts of government act separately and perform separate functions.

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22
Q

According to separation of powers, can one arm perform the functions of another arm of government?

A

No.

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23
Q

Where does the notion of separation of powers originate from?

A

Ancient Greece.

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24
Q

What is the separation of powers enshrined in?

A

The first three chapters of the Australian constitution.

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25
Q

What does the separation of powers protect?

A

One section from taking control of another.

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26
Q

What are the three distinct parts of government?

A

Legislature, executive and judiciary.

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27
Q

What does the legislature do?

A

They create and modify the law.

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28
Q

Who is the legislature?

A

The parliament.

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29
Q

What does the executive do?

A

Administer the law.

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30
Q

What does the judiciary do?

A

Make judgements on the law.

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31
Q

How does the judiciary make new laws?

A

They apply it to individual cases and (in effect) make new laws.

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32
Q

Who is the judiciary?

A

The courts.

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33
Q

What is the essential element of rule of law?

A

Separation of powers.

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34
Q

Why is separation of powers an essential element of rule of law?

A

This is an essential element of rule of law because it is what causes the the government to be under law.

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35
Q

Is there always a strict separation of powers?

A

No.

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36
Q

What is an example of where there is not a strict separation of powers?

A

Judges are appointed by the legislature.

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37
Q

What are the two main categories of law?

A

Criminal law and civil law.

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38
Q

Can a case be both criminal and civil?

A

Yes.

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39
Q

Why may a case be BOTH criminal and civil?

A

A civil case may succeed where a criminal action fails because standard of evidence needed for criminal conviction is higher.

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40
Q

What is an example of where a criminal case failed but a civil case succeeded?

A

OJ Simpson case.

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41
Q

Are criminal and civil cases heard in the same courts?

A

Yes.

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42
Q

What is criminal law?

A

Criminal law is where the state takes action on behalf of the entire community.

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43
Q

What is the legislation for criminal law?

A

The Criminal Code Act.

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44
Q

What offences does criminal law apply to?

A

Offences against individual and property.

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45
Q

What is the general idea of criminal law?

A

To keep people safe.

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46
Q

What are four examples of criminal offences?

A

Murder, assault, theft and drug crime.

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47
Q

In criminal law, the accused is innocent until…

A

Proven Guilty.

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48
Q

Who has the burden of proof in criminal law?

A

The prosecutor.

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49
Q

What is the standard of proof in criminal law?

A

Beyond reasonable doubt.

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50
Q

How many people are in a jury in criminal law?

A

12 people.

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51
Q

What courts do juries occur in criminal law?

A

District and Supreme

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52
Q

What are the two verdicts in criminal law?

A

Guilty or not guilty.

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53
Q

What are the penalties in criminal law?

A

Fines, community service and prison.

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54
Q

Who are crimes against?

A

The whole of society.

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55
Q

What is the first step in the criminal law process?

A

The accused is arrested and charged or they receive an order or summons to appear a court.

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56
Q

What is a summons?

A

A summons is a document which requires a person to attend court.

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57
Q

Does the accused make a plea?

A

Yes.

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58
Q

What is a plea?

A

A plea is the defendant’s answer to plaintiff’s declaration in an action at common law.

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59
Q

What are the two kinds of pleas in criminal law?

A

Guilty and not guilty.

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60
Q

What is a plea of guilty?

A

A statement by an alleged offender that they have committed an offence with which they’re charged.

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61
Q

What is a plea of not guilty?

A

A statement by an alleged offender that they do not admit to having committed an offence which they’re charged.

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62
Q

Can the accused enter an early guilty plea?

A

Yes.

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63
Q

When is an accused guilty plea taken into consideration?

A

When determining penalty/sentencing.

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64
Q

If you know you are guilty, what should you plead?

A

Guilty.

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65
Q

Why should you enter an early plea of guilty?

A

Reduced penalty/sentence.

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66
Q

Why do early pleas reduce penalty/sentencing?

A

The reason being that you are not wasting the court’s time.

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67
Q

If the accused enters in a plea of guilty, what will occur?

A

The matter will be heard in court.

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68
Q

Is the matter being heard in court a more complicated process?

A

Yes.

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69
Q

Is the matter being heard in court a more lengthy process?

A

Yes.

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70
Q

In more serious cases, what will happen to the accused while waiting for trial?

A

They will be held in remand.

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71
Q

What are the three types of criminal law offences?

A

Regulatory, simple and indictable.

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72
Q

What is a regulatory offence?

A

It is an offence under the regulatory offences act.

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73
Q

What are two examples of regulatory offences?

A

Shoplifting and damage to property.

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74
Q

Who always deals with regulatory offences?

A

Magistrate.

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75
Q

What is the only possible penalty for a regulatory offence?

A

Fine.

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76
Q

What are simple offences also known as?

A

Summary offences.

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77
Q

What are simple offences?

A

Simple offences are crimes punishable by no more than 2 years imprisonment.

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78
Q

What are simple offences heard?

A

Magistrate court.

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79
Q

Simple offences are more serious than what?

A

Regulatory offences.

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80
Q

What are indictable offences?

A

Indictable offences are crimes that are punishable with more than 2 years imprisonment.

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81
Q

Are indictable offences more serious?

A

Yes.

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82
Q

Are indictable offences more violent offences?

A

Yes.

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83
Q

What kind of offence is rape?

A

Indictable.

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84
Q

What kind of offence is murder?

A

Indictable.

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85
Q

Are indictable offences more serious than regulatory or simple offences?

A

Yes.

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86
Q

Who hears indictable offences?

A

Higher courts.

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87
Q

Can some indictable offences be heard in the magistrate’s court?

A

Yes.

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88
Q

What is the first step for hearing an indictable offence?

A

Mention

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89
Q

Where does a mention occur?

A

Magistrate’s Court.

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90
Q

What does the mention do?

A

It puts the case in the books and registers the plea.

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91
Q

What is the second step for hearing an indictable offence?

A

Committal hearing.

92
Q

Where does the committal hearing usually occur?

A

Magistrate’s court.

93
Q

What is the role of the committal hearing?

A

To establish if there is a prima facie case.

94
Q

What occurs if the committal hearing shows there is enough evidence?

A

The case proceeds to trial.

95
Q

Where will an indictable offence proceed to trial?

A

In a higher court.

96
Q

What does where an indictable offence proceed to trial depend on?

A

Severity of the case.

97
Q

Where will very serious cases proceed to trial?

A

Supreme Court.

98
Q

Do very serious cases have to go via the district court?

A

No.

99
Q

Where does the accused have the right to remain silent?

A

Accused has right to remain silent in the court or when questioned by the police.

100
Q

Is there a right not to incriminate oneself?

A

Yes.

101
Q

What are two things you have to provide to the police?

A

Name and address.

102
Q

What disputes does civil law settle?

A

Disputes between people and entities.

103
Q

What does civil law give?

A

An opportunity to settle a dispute.

104
Q

Are civil law disputes affecting?

A

Not all members of the community.

105
Q

Is the civil law enforced by the police?

A

No.

106
Q

If there is a victim, in civil law, what do they get?

A

Compensation paid by the person who wronged.

107
Q

What are examples of civil law disputes?

A

Defamation, copyright breaches, contractual disputes and property/neighbour disputes.

108
Q

If a matter is less than 150,000, where is it heard?

A

Magistrates Court

109
Q

If a matter is between 150,000 and 750,000 where is it heard?

A

District Court.

110
Q

If a matter is more than 750,000 where is it heard?

A

Supreme Court

111
Q

Who has the burden of proof in civil law?

A

Plaintiff.

112
Q

What is the standard of proof in civil law?

A

Balance of probabilities.

113
Q

Are there any juries in civil law?

A

Generally no juries.

114
Q

If there is a jury in civil law, how many people?

A

Four people.

115
Q

What are the two verdicts for a civil case?

A

Proven or dismissed.

116
Q

What are the types of penalties in civil cases?

A

Injunctions, damages, transfers, restitution, compensation.

117
Q

Who is affected in civil cases?

A

Private individuals.

118
Q

What are laws derived from?

A

Laws are derived from a democratic parliamentary system of government.

119
Q

What does our legal system have its origin in?

A

British Westminster system of law.

120
Q

Does our system of law maintain separation of powers?

A

Yes.

121
Q

What are the two sources of law?

A

Common law and statute.

122
Q

Who sets common law?

A

Courts.

123
Q

Who sets statute?

A

Parliament.

124
Q

Does our system of law maintain separation of powers?

A

Yes.

125
Q

How does statute interact with common law?

A

Statute overrides/replaces common law.

126
Q

What is common law also known as?

A

Case law.

127
Q

How is common law made?

A

Through legal precedent.

128
Q

What is legal precedent set for?

A

Rulings, decision and sentencing.

129
Q

What precedent must lower courts follow?

A

Precedents set in higher courts.

130
Q

What is precedence researched on?

A

Case-by-case basis.

131
Q

What is the aim of common law?

A

To achieve consistency.

132
Q

What is the process for statute?

A

Statute is law set by parliament. The process is proposed law reform is presented by a party or individual as a bill and it must pass by a majority vote. It is the given ‘royal assent’ by the state governor or nation’s governor-general. It is then proclaimed in the Government Gazette, citing date of effect.

133
Q

Does statute override common law?

A

Yes.

134
Q

What are the three reasons for a court hierarchy?

A

Different level of crimes, appeals and precedence.
Appeals
Precedence

135
Q

What is the busiest court?

A

Magistrate’s Courts

136
Q

What amount of cases does the Magistrate Court hear?

A

96%

137
Q

What kind of offences does the Magistrate Court hear?

A

Low level offences.

138
Q

What kind of criminal matters will the Magistrate Court hear?

A

Minor criminal matters.

139
Q

What kind of civil offences will the Magistrate Court hear?

A

Minor civil matters.

140
Q

What kind of penalty will it be if a case is heard in the Magistrate’s Court?

A

Fine or less than 2 years imprisonment.

141
Q

How does a magistrate deal with issues?

A

Quickly.

142
Q

Where do all cases technically start?

A

Magistrate’s court.

143
Q

Why do all cases technically start in the magistrate’s court?

A

This is because all mentions/committal hearings are heard there.

144
Q

In a committal hearing, can one jump courts?

A

In a committal hearing, one can jump straight from the magistrate court to a higher court.

145
Q

What will the district court hear?

A

More serious things than a Magistrate Court.

146
Q

How can the Magistrate Court be explained?

A

This is the intermediate court.

147
Q

What percentage of cases are heard in the district court?

A

3%

148
Q

What appeals does the district court hear?

A

Any appeals from the magistrate’s court.

149
Q

What is the first court to involve a jury?

A

District court.

150
Q

Will the district court take a longer time than magistrate’s court?

A

Yes.

151
Q

What appeals does the supreme court hear?

A

They will hear appeals from the district court.

152
Q

What percentage of cases does the supreme court hear?

A

1% of cases.

153
Q

What are the two divisions of the supreme court?

A

Trial division and supreme court of appeal.

154
Q

What is double jeopardy?

A

Double jeopardy is the situation where a person would be prosecuted a second time for an offence where the prosecution had already occurred and been finalised.

155
Q

Is it permissible for a person to be placed in double jeopardy?

A

No.

156
Q

How do committal hearings help for double jeopardy?

A

Committal hearings occur because they are a sufficient opportunity for the prosecutor to learn whether or not there is enough evidence to proceed.

157
Q

What year was there significant changes for double jeopardy laws?

A

2014.

158
Q

What did the Queensland government change with the 2014 changes to double jeopardy laws?

A

The QLD government reformed this aspect of the law to allow re-trials if compelling new evidence comes to light or questions arise over veracity of evidence given at trial or some other perversion of the course of justice.

159
Q

Are the 2014 changes to double jeopardy laws retrospective?

A

Yes.

160
Q

What are the two conditions for someone to be retried?

A

It must be a case that is capable of giving a life sentence.
It has to be likely to result in a guilty verdict.

161
Q

What is a key case for double jeopardy?

A

Deidre Kennedy.

162
Q

What is the principle of open justice?

A

The principle of open justice is the idea that proceedings ought to be open to the public.

163
Q

What is the principle of open justice to ensure?

A

This is to ensure fairness. It also allows media to report on court proceedings and to view the contents of court files.

164
Q

What does the principle of open justice allow for?

A

Media to report on court proceedings and to view the contents of court files.

165
Q

Does open justice allow for public viewing of trials?

A

Yes.

166
Q

Does open justice allow for the reporting of trials?

A

Yes.

167
Q

What is the key case for open justice?

A

Scott v Scott.

168
Q

What was the significance of Scott v Scott?

A

This is where the House of Lords ruling in 1913 gave clear expression to a general principle of open justice. .
The principle of open justice was recognised earlier. Scott v Scott set a precedence on the extent to which open justice applies. It helped cement the important role of reporting court proceedings in media coverage.

169
Q

What occured in Scott v Scott?

A

This case was heard in camera when it should not have been. For the judge to have ordered the case to be heard in camera an exception to the open justice principle should have been applicable

170
Q

What does in camera mean?

A

In camera means a hearing of a case from which the public and the media were excluded.

171
Q

What the Scott v Scott case different to any other case?

A

No.

172
Q

Was the principle of open justice recognised earlier than Scott v Scott?

A

Yes.

173
Q

What precedence did Scott v Scott set?

A

Scott v Scott set a precedence on the extent to which open justice applies. It helped cement the important role of reporting court proceedings in media coverage.

174
Q

What did Scott v Scott help cement?

A

The important role of reporting court proceedings in media coverage.

175
Q

Justice must not only be done but…

A

Seen to be done.

176
Q

What is the benefit of open justice when it comes to judicial officers?

A

It opens them up to public/professional scrutiny.

177
Q

What is the benefit of open justice when it comes to law enforcement officers?

A

It places them under scrutiny.

178
Q

What is the benefit of open justice when it comes to witnesses?

A

It opens them to scrutiny.

179
Q

What is the benefit of exposes witnesses to scrutiny?

A

It discourages false evidence.

180
Q

When is the benefit of open justice when it comes to court proceedings?

A

It increases public understanding of court proceedings.

181
Q

How does open justice promote discussion?

A

Promotes public discussion of issues in the courts.

182
Q

What does open justice assist to maintain the public’s confidence in?

A

Court’s integrity & independence

183
Q

What is the benefit of open justice when it comes to additional witnesses coming forward?

A

It increases possibility of additional witnesses coming forward.

184
Q

What is a judge?

A

A judge is the court official who presides in higher courts and make decisions about law, impose sentences and award damages.

185
Q

What will the jury direct the judge to?

A

Relevant laws.

186
Q

If there is no jury, what will the judge also determine?

A

Relevant facts.

187
Q

What is a jury?

A

A jury is a panel of people who decide questions of fact in a court proceeding.

188
Q

Does the jury decide sentencing?

A

No.

189
Q

What are two courts where juries are not used?

A

Magistrate’s or Family Court.

190
Q

Where are 12 jurors used?

A

For all criminal trials (in higher courts).

191
Q

For cases attracting a life sentence, what must the jury verdict be?

A

Unanimous.

192
Q

In criminal cases not attracting a life sentence, can a majority verdict be accepted?

A

Yes.

193
Q

What is a majority verdict in a criminal trial?

A

11/12 and they must try to be unanimous

194
Q

What is a case where they could not reach a majority verdict?

A

Todd Parnell.

195
Q

What occurred in the case of Todd Parnell?

A

A case where they failed to reach a majority verdict was the king hit of Todd Parnell which could not reach a verdict after 3 days of jury deliberations (this ended up leading to a conviction).

196
Q

If a decision is not reached by a jury, what is it called?

A

A hung trial.

197
Q

If a hung trial occurs, what may happen?

A

Retrial.

198
Q

What does a retrial have?

A

A new jury.

199
Q

What is an issue with hung trials?

A

An issue is a hung trial is a man who was being charged was able to walk free after five hung juries.

200
Q

Where do judge only trials occur?

A

In rare cases.

201
Q

When can a mistrial occur? +

A

If the judge finds the course of justice has been perverted.

202
Q

What happens if a mistrial occurs?

A

The trial is aborted.

203
Q

What is one example of how the course of justice may be perverted?

A

Through the publication of prejudicial matter.

204
Q

Is it illegal to interfere with the course of justice?

A

Yes.

205
Q

What section of the Qld’s Jury Act 1995 protects the confidentiality of jury deliberations?

A

s 70.

206
Q

What is the penalty for breaking the confidentiality of jury deliberations?

A

Up to 2 years jail for breaches.

207
Q

What are examples of how they can break the confidentiality of jury deliberations?

A

publishing jury information
Seeking jury information from jury member/former member
A jury member/former member disclosing jury information
Being guilty of bias, fraud or an offence related to membership of a jury or the performance of a jury member’s functions

208
Q

Who can a jury member disclose suspicions to if they suspect something is amiss in the jury room?

A

Attorney­ General or Director of Public Prosecutions.

209
Q

What are the downfalls of where a jury member has to report suspicions to?

A

Jurors may be too intimidated to act.

210
Q

Is there an argument for greater transparency regarding the jury system?

A

Yes.

211
Q

Who is the executive?

A

The police.

212
Q

Does the accused have the right to remain silent in court?

A

Yes.

213
Q

Does the accused have the right to remain silent when being questioned by the police?

A

Yes.

214
Q

Is there a right not to incriminate oneself?

A

Yes.

215
Q

Do you have to provide a name and address when asked by the court/police?

A

Yes.

216
Q

When is a jury of four people used?

A

In (some) civil cases.

217
Q

In civil cases, can a judge accept a majority verdict?

A

Yes.

218
Q

What is a majority verdict in a civil trial?

A

3/4.

219
Q

Justice must not only be done but…

A

Seen to have been done.

220
Q

What does open justice expose judicial officers to?

A

Public/professional scrutiny.

221
Q

What does open justice place open justice under?

A

Scrutiny.

222
Q

What does open justice expose witnesses to?

A

Scrutiny

223
Q

What does exposing witnesses to scrutiny discourage:?

A

False evidence.

224
Q

Does open justice increase public understanding of court procedures?

A

Yes.

225
Q

Open justice promotes public discussion. What does it promote public discussion of?

A

Issues in the courts.

226
Q

Does open justice increase the possibility of additional witnesses coming forward?

A

Yes.

227
Q

What does open justice help maintain public confidence in?

A

Court’s integrity & independence

CMN228 (11 decks)

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