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Y10 legal studies > The Judiciary T2 > Flashcards

The Judiciary T2 Flashcards

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1
Q

Definition of the hight court

A

The High Court of Australia is the highest court in the judicial system.

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2
Q

What is the judicial system?

A

A system of courts in Australia that is president over by judges and Magistrates.

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3
Q

Some of the roles of the high court include..

A
  1. Acting as the high court of appeal
  2. Protecting rights of Australians
  3. Acting as a ‘check’ on Commonwealth lawmaking powers
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4
Q

What are Australia’s human rights protected by?

A

Through laws made by parliament at federal and state levels and, common law, through legislation at Cth and state levels and, precedent established in common law.

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5
Q

What is one of the main ways in which human rights are protected in Australia?

A

Through express rights in the constitution.

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6
Q

Definition of express rights

A

Rights that are written/embedded within the constitution that cannot be changed unless a referendum is held and successful.

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7
Q

What does it mean by express rights are fully enforceable?

A

It means if legislation created by parliament breaches/infringes an express right, a party can take the matter to the High Court and have it overturned.

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8
Q

What are the 5 express rights?

A
  1. Freedom of religion
  2. Acquisition of property on just terms
  3. Trial by jury for indictable offences
  4. Trade between states shall be free
  5. The right to not be discriminated based upon states of residence
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9
Q

Why are the Commonwealth and Victorian parliaments considered supreme lawmaking bodies?

A

Because the MPs are democratically and directly elected by the people of Australia to represent and uphold their views when making decisions that impact the country and, making and changing laws.

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10
Q

Why are safe guards put in place in parliament?

A

So that the parliament cannot overstep its boundaries which could lead to abuse of power. This is referred to as a ‘check’. These safe guards and mechanisms are put in place to ensure that, should parliament operate outside of its jurisdiction, these decisions can be corrected.

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11
Q

Definition of standing

A

The ability for a party to show that they were directly affected by the outcome of a case.

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12
Q

Definition of jurisdiction

A

The legal scope or boundaries of the types of cases they can hear.

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13
Q

Definition of original jurisdiction

A

The authority or legal power of a court to hear the case at first instance.

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14
Q

Definition of appellate jurisdiction

A

The power of the court to hear and determine a matter on appeal.

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15
Q

When can someone appeal?

A

When a party believes that the trial has made an incorrect decision through applying wrong points of law handing down a sentence that is too harsh or lenient.

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16
Q

Definition of appeal

A

A party attempting to seek a review of the trial judge’s decision from a more superior court to correct/reverse the decision that was made.

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17
Q

What are the 2 primary roles of a court in managing criminal disputes?

A
  1. Enforcing the law
  2. Settling disputes to in a peaceful way that reflects society’s views and values
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18
Q

How can courts enforce the law?

A
  1. Granting or denying bail
  2. Deciding to hold the accused in remand
  3. Issuing a search warrant to the police to search their property
  4. Allowing the accused to return into society with certain conditions attached e.g a curfew, wearing an ankle monitor
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19
Q

How can the courts settle criminal disputes?

A
  1. Conducting a trial
  2. Applying the law, rules of evidence and procedures during trial
  3. Instructing the jury
  4. Ensuring both sides receive equal opportunities to present their case
  5. Handing down appropriate sanction if the accused is found guilty or dismissing the case if there is insufficient evidence
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20
Q

Definition of committals

A

A series of hearing that occur when an accused has been charged with a serious offence (an indictable offence)

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21
Q

Why do committal hearings need to take place?

A

To determine whether sufficient evidence exists for the prosecution to take the matter to trial. If the magistrate does not believe that the prosecution case is strong enough, they will dismiss the case, but this is very rare. During this trial the accused can also plead guilty to their charges and the trial will also be avoided.

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22
Q

What is the Children’s court?

A

A specialist court within the hierarchy. It hears criminal charges against children, defined as anyone under 18 years old of age at the time of the offence and who is under 19 years of age at the time of the case.

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23
Q

What are the two divisions of the Children’s Court?

A
  1. Criminal division- can hear most cases concerning children who have been charged with criminal offences, except for homicide
    2- Family division- has the power to hear cases concerning young people who need care and protection e.g if it believed the child is abandoned or ill-treated
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24
Q

What is the Koori Court?

A

A sentencing court for First Nations offenders who have pleaded guilty of offences that can be heard in the Magistrates or County Court. This county is not used to determine whether the accused is guilty or not.

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25
What is the purpose of the Koori Court?
To recognise that a disproportionate number of offenders are of First Nations background therefore, more cultural awareness and sensitivity is needed within our criminal justice system when sentencing FN offenders. The Koori Court does this through allowing Elders to participate and provide sentencing recommendations for FN offenders in the Koori Court.
26
The County Court has what?
Both original and appellate jurisdiction.
27
What is the original jurisdiction for the County Court?
Hears all but the most serious indictable offences, such as murder and manslaughter. Therefore, it can hear matters including robbery, theft, drug possession, arson, armed- robbery and sexual offences.
28
What is the appellate jurisdiction for the County Court?
It can hear appeals against conviction and sentencing from the Magistrates' court in criminal matters. It can also hear appeals from the prosecution again the leniency of sentencing is handed down by the Magistrate, there are no jurors in appeals.
29
What is the original jurisdiction of the Supreme Court trial division?
It deals with the most serious criminal cases such as murder, manslaughter and treason. Where the accused has pleaded not guilty, the case is heard by a justice (judge) and a jury of 12 people.
30
What is the appellate jurisdiction for the Supreme Court (Court of appeals)
The COA has the power to hear and determine appeals from the County Court and Supreme Court trial division.
31
Who are appeals on point of law determined by in the Magistrates court?
They are heard by a singular judge from the Supreme Court.
32
Where can appeals from the Supreme Court of Appeals proceed to?
The High Court of Australia where the final decision will be made.
33
What does a Magistrate do?
A Magistrate sits in the Magistrates' court and performs a similar function of that of a judge. The roles include: -oversee the conduct of a hearing for minor offences -determine the verdict of the case should the accused plead not guilty -determine the appropriate sanction that fits the offence -hear applications for warrants (from police) and bail
34
What does the judge do?
The judge sits in the County court and Supreme Court they are referred to as the justice. Judges and justices preside over more superior courts which hear the more serious criminal offences which are referred to as trials.
35
What is the role of the judge?
1. Ensuring both parties obey the rules of evidence and procedure in court 2. Protecting the rights of witnesses and victims when testifying 3. Ensuring both parties have an equal opportunity to present their case 4. Summing up evidence and explaining the law to the jury 5. Determining appropriate sanction should the accused plead/is found guilty
36
What is the main role of the prosecution?
To prove their case that the accused is guilty beyond a reasonable doubt.
37
In a hearing or a trial, the role of the prosecution includes..
1. Starting the trial by providing the judge with and jury with an opening address 2. Present evidence at the trial 3. Determine which witness to call 4. Make submissions to the court in relation to an appropriate sentence for the accused 5. Meet the burden and standard of proof required to prove the guilt of the accused
38
What is the accused?
A party who is being charged with a criminal offence/offences.
39
How can the accused, and their lawyer, attempted to weaken the prosecutions case?
1. Providing evidence 2. Presenting a defence 3. Remain silent 4. Calling witnesses
40
What is the role of the jury?
1. Listen to the evidence presented by both parties 2. Consider and weigh up all the evidence presented 3. Reach a decision based upon the evidence and, applying the relevant law
41
What does beyond reasonable doubt mean?
That there is no other logical or plausible reason other than the accused is guilty of the offence they are charged with.
42
What can the jury not do?
Cannot independently 'face-find', that means they cannot conduct their own research, talk to either parties/witnesses or try find information about the trial from other resources. Doing so can lead to a mistrial.
43
What are the benefits to having a jury?
1. Juries are impartial and independent meaning that they are unbiased and independent in their decision making as they cannot take into consideration personal characteristics on the accused. 2. Having juries spreads the decision making process, as it's spread across 12 members of the community to determine the verdict aims to reduce unjust decisions 3. Juries promotes transparency and engagement with the community which ensures the judicial officers such as judges and the prosecution are accountable in the role and act in professional and ethical matter
44
What are some weaknesses to a jury?
1. Juries do not have to provide a reasoning for their decision therefore their finding of guilt could be based on attitudes or discrimination 2. Juries can create extra delays and costs and empanelling the jury takes time which is added on to the trial and they have to have court procedures and their roles clearly explained 3. Jurors may also not understand complex legal jargon/evidence
45
Definition of precedent
A principle established in a legal case that should be followed by courts in future cases where the material facts are similar
46
Definition of stare decisions
(Latin) meaning 'let the decision stand' whereby consistency is ensued through the following of previous decisions when similar matters arise in the future
47
Definition of ratio decidendi
(Latin) meaning 'reason for the decision', that is, the reasoning behind the decision the judge arrived to
48
Definition of obiter dicta
(Latin) singular, meaning 'statements made by the way', that is comments made by the judge in a particular case that may be persuasive in guiding future cases
49
Is ratio decidendi a binding precedent?
Yes
50
Is obiter dicta a binding precedent?
No, however they may still be persuasive.
51
What is a binding precedent?
A precedent that must be followed because the legal principle was either set by a higher court, in the same court hierarchy and pertains to a matter of similar material fact.
52
what is a persuasive precedent?
A precedent which does not have to be followed, this is because the precedent was set by another state or country, sent by a lower court in the same court hierarchy, pertains different material facts
53
Definition of sources of law
The point of origin for a law, that is where it was created
54
Definition of statute law
Statute law refers to laws made by parliament and also known as legislation. When establishing legislation, a MP will introduce a bill.
55
Definition of common law
The body of law that is derived from judicial reasoning and decisions in past cases. It requires a court to create legal principles to resolve the disputes in hand. The law will then be followed in future cases of similar nature.
56
How can the courts also establish common law?
By interpreting and providing meaning to statues when applying them to a case
57
What is the primary role of the courts?
To resolve cases by applying existing laws to factual scenarios.
58
What is the secondary role of the courts?
To make law as part of their case determinations. This is called common law, case law or judge-made law.
59
what 2 ways can common law be created?
1. Statutory interpretation- judges interpret the meaning of words in statue when applying the case before court 2. Precedent- judgements upon a new legal issue in a case before the court wherein no legislation exists in this area, or when previous principle of law requires expanding to cover a new situation
60
Definition of statutory interpretation
-When judges apply or generate meaning of words within Acts (laws) made by parliament to resolve a dispute -When they do this, the wording itself does not change, however the interpretation of the word forms the reasoning behind the decision when is to guide future cases with similar material fact
61
What are the 3 main reasons legislation may need to be interpreted
1. unclear wording 2. changing of nature of the words 3. to clarify words
62
What does unclear working mean?
A legislation is created to suit a wide range of circumstances, the wording used can often be too broad when can create confusion.
63
What does changing nature of the words mean?
Depending on when legislation was written, the nature of the words can change over time as society changes/technology develops.
64
What does it mean to clarify words?
Sometimes legislation may have been drafted to cover emergency situations and therefore, there may have been a wording mistake.
65
When can a precedent be established?
In clarifying the meaning of words as they relate to material facts in front of them, a precedent can be established for how to interpret the statue in future like cases.
66
What does narrowing the meaning of a term mean when a precedent is established?
Whereby possible meanings are excluded and thus the scope of accepted interpretations is made smaller (narrowed).
67
What does broadening the meaning of a term mean when a precedent is established?
Whereby the possible meaning are expanded to include more meanings or examples.

Y10 legal studies (5 decks)

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