Unit 1 Exam Flashcards
(114 cards)
1
Q
social cohesion
A
a term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper
2
Q
principles of justice
A
a way of determining whether justice has been achieved in a legal case. includes fairness, equality and access.
3
Q
fairness
A
a principle of justice - ‘impartial and just treatment or behaviour without favouritism or discrimination’ - meaning all parties receive a fair process and hearing, are able to understand court processes and have an opportunity to present their case.
4
Q
equality
A
a principle of justice - ‘equal in status, rights or opportunities’ meaning all people should be treated equally before the law regardless of characteristics or attributes including race, religion, status or culture.
5
Q
access
A
‘the ability to approach or make use of something’ - it should be possible for people to use the procedures, methods and institutions that help solve a civil dispute or determine a criminal case
6
Q
characteristics of an effective law
A
for laws to be effective in society, they must have the following characteristics:
- reflect society’s values
- be enforceable
- be known
- be clear and understood
- be stable
7
Q
laws must reflect society’s values
A
if a law is in line with society’s current values, then members of society are more inclined to follow it. meaning that laws must change to adapt to the changing values of society.
8
Q
laws must be enforceable
A
if people break the law, it must be possible to catch and punish them. if that is not possible, people will be less inclined to follow that law.
9
Q
laws must be known
A
if people are not aware of a law, they are not able to follow it. it is the responsibility of individuals to find out the laws on a particular matter.
10
Q
laws must be clear and understood
A
if a law is unclear, ambiguous, or written in ways people don’t understand, the law will be ineffective.
11
Q
laws must be stable
A
if the law is constantly changing, people won’t be certain on what the law is, and therefore it won’t be effective.
12
Q
common law
A
laws made by the courts through statutory interpretation or through deciding on a new issue in a case where a law doesn’t already cover.
13
Q
statute law
A
laws made by parliament. the government decides what laws should be made and the parliament is responsible for passing the law. The final law-making power rests with the parliament and they are able to override laws made by other bodies
14
Q
binding precedent
A
a principle or rule that must be followed by lower courts in the same hierarchy. a precedent is considered binding when:
- the facts of the precedent are similar to the facts of the new case
- the precedent was set in a higher court in the same court hierarchy as the new case
15
Q
persuasive precedent
A
a precedent that the courts are not bound by, but can choose to follow it or be persuaded by it.
- when a court in another state established the precedent
- a lower court set the precedent
- the same court set the precedent
16
Q
obiter dictum
A
a statement made ‘by the way’ by a judge in a case. meaning it is not part of the reason for the decision, but is an important statement relating to the case that can influence decisions of other courts in the future.
17
Q
the relationship between parliament and the courts
A
a ‘complementary relationship’. while the main role of parliament is to make laws, the role of the courts is to resolve disputes, so they must work together to ensure laws are workable and enforceable. the four main features of the relationship are:
- the interpretation of statutes by courts
- the codification of common law
- the abrogation of common law
- the ability of courts to influence parliament
18
Q
criminal law
A
a body of law which protects the community by establishing crimes and setting down sanctions for people who commit crimes.
the two parties include the state, who is bringing the action (prosecution) against the person alleged to have committed the crime (accused)
19
Q
civil law
A
area of law that regulates disputes between individuals and groups and seeks to enforce rights where harm has occurred. the aim is to remedy a wrong, often through damages paid to the person whose rights were infringed.
the two parties are the party who makes the claim (plaintiff) and the person who has infringed upon someone’s rights (defendant)
20
Q
the distinction between criminal and civil law
A
the aim of criminal law is to protect society and sanction offenders, whereas the aim of civil is to regulate conduct between parties and remedy a wrong. the consequence of criminal law is a sanction - a penalty such as a fine or imprisonment, however, in civil law, the consequence is a remedy such as damages.
21
Q
the relationship between criminal and civil law
A
the same behaviour can result in a civil dispute or criminal case. Eg. - a person who hits someone can be charged with assault and sanctioned, though the victim may also sue the offender, meaning they will pay damages.
22
Q
the Victorian court hierarchy
A
includes a variety of courts that have different areas of expertise and are suitable for different cases. The higher courts (supreme) hear complex and serious cases while the lower courts hear everyday issues.
- The Magistrates Court
- The County Court
- The Supreme Court
23
Q
reasons for the Victorian court hierarchy
A
there are four main reasons:
- allows for specialisation and expertise
- enables parties to appeal to a higher court
- is a necessary part of the doctrine of precedent
- allows for administrative convenience
24
Q
specialisation and expertise
A
a reason for the court hierarchy -
the courts develop expertise in dealing with cases. eg. magistrates court hears minor offences so will be specialised in drink driving, while the supreme court hears serious cases so will have a developed expertise regarding murder.
25
enables the parties to appeal to a higher court
a reason for the court hierarchy -
if parties are not satisfied with the decision of a lower court, they are able to appeal to a higher court so they can review the decision.
26
a necessary part of the doctrine of precedent
a reason for the court hierarchy -
the process of law-making depends on a decision being made by the higher courts which then becomes binding on the lower courts.
27
allows for administrative convenience
a reason for the court hierarchy -
as the courts have different jurisdictions to hear different matters, it allows smaller cases (of which there are more) to be heard by the magistrate's court (as there is a number of in the state). this allows for efficiency and convenience in the way cases are heard.
28
the role of laws in protecting individuals and achieving social cohesion
laws provide guidelines on acceptable and non-acceptable behaviour meaning they set expectations for the way individuals should behave. they establish a framework in which people live, set boundaries about behaviour, and apply to everyone regardless of their position in society.
29
the role of individuals in protecting individuals and achieving social cohesion
it is the individual's responsibility to be aware of laws and abide by them. they should respect human rights and act in a way that keeps the peace and harmony of society.
30
the role of the legal system in protecting individuals and achieving social cohesion
applying the law and enforcing it help to achieve social cohesion and protect individuals when a dispute arises.
31
the purpose of criminal law
criminal law aims to:
- protect individuals by establishing crimes and sanctions
- protect property
- protect society
- maintain public order and security
- protect justice and the rule of the law
- protect rights and cultures
- improve society generally
32
the presumption of innocence
the person accused of a crime is treated as and considered to be innocent until a charge against them is proved.
33
the standard of proof in a criminal case
the degree or extent to which a case must be proved in court. in criminal law, the charge against the accused must be proved 'beyond reasonable doubt'
34
the burden of proof in a criminal case
refers to the arty that has the responsibility to prove a case.
in criminal law, it rests with the party who initiates the action (prosecution)
35
actus rea
the physical element of a crime. it refers to the actions that an individual must engage in to be found guilty of an offence.
36
mens rea
the mental element of a crime. it refers to the person's state of mind when they were engaging in the actions of the offence.
37
strict liability
where culpability or responsibility of a crime can be established without having to prove the mens rea.
38
the age of criminal responsibility
the age a person must be to be charged with a crime. children may be considered too young to form the mens rea.
- a person under 10 cannot be charged
- a person between 10-13 can be charged if it was proven that at the time, the child knew their actions were wrong.
- people aged 14+ are criminally responsible for their actions
39
summary offences
minor criminal offences often heard in the magistrate's court. often drink driving, disorderly conduct and minor assaults.
40
indictable offences
serious criminal offences heard by a judge and jury in the county or supreme court. for example manslaughter, murder and rape.
41
the distinction between summary and indictable offences
- summary are minor offences, while indictable are serious
- summary heard in magistrates, indictable heard in county or supreme
- the final hearing of a summary offence is known as a hearing while an indictable offence is known as a trial
- summary offences are found in the Summary Offences Act 1996 (Vic) while indictable offences are in the Crimes Act
42
principal offender
the person who has committed the crime - the actus rea, and forms the mens rea
43
accessory
the person who knowingly assists a principal offender in an offence. the accessory must believe/know the offender has committed an offence.
44
elements of murder
for a person to be found guilty of murder, the prosecution must prove the following elements:
- the killing was unlawful
- the victim was a human being
- the accused was over the age of discretion
- the accused caused the victim's death
- the accused was of sound mind
- there was malice aforethought
45
malice aforethought
the intention to kill or seriously harm a person
46
element 1 - the killing was unlawful
an element of murder -
the prosecutor must establish the accused did not have a lawful reason for causing another person's death. a lawful killing would be a soldier killing an enemy in battle
47
element 4 - the accused caused the victims death
an element of murder -
the accused actions must have contributed significantly and substantially to a person's death. there must be a direct an unbroken link between the actions and death.
48
element 5 - the accused was a person of sound mind
an element of murder -
the prosecution must establish that the accused knows right from wrong, and understands the nature of what they've done. they must form the mens rea.
49
element 6 - there was malice aforethought
an element of murder -
| to prove murder, the prosecution must prove the accused had an intention to kill or cause harm
50
element 2 - the victim was a human being
an element of murder -
| the victim must be a living person (not an unborn baby or animal)
51
element 3 - the accused was over the age of discretion
the accused must be at least 10 years of age as the law presumes that those under the age of 10 are incapable of forming the intent to commit a crime.
52
possible defences to murder
other than defending the charge for murder on the basis that one or more of the elements have not been proved, the accused can put forward a particular defence. the five defences are:
- self-defence
- mental impairment
- duress
- sudden or extraordinary emergency
- involuntary actions
53
defence 1 - self-defence
a person is not guilty of a murder if:
- they believe their actions were necessary to protect themselves or another person from death or serious injury
- their actions were reasonable in the circumstances
54
defence 2 - mental impairment
a person is not guilty of murder if, at the time of the offence, they were suffering from a mental illness, and as a result they:
- did not know what they were doing as they had little understanding of the nature of the actions
- did not know their actions were wrong or could not reason/think about their actions in a way an ordinary person would
55
defence 3 - duress
a person is not guilty of murder if they act under duress, which applies if, at the time of the offence, the accused had a reasonable belief that:
- a threat of harm exists
- the threat would be carried out unless the offence was committed
- committing the offence was the only reasonable way to avoid the threat
- the accused's conduct was a reasonable response to the threat
56
defence 4 - sudden or extraordinary emergency
a person is not guilty of murder if they act as a result of sudden or extraordinary emergency. the person must reasonably believe that:
- there is a sudden/extraordinary emergency
- their actions are the only reasonable way of dealing with the situation
- their actions are a reasonable response to the situation
57
defence 5 - involuntary actions
a person is not guilty of murder if their actions were involuntary. the involuntary nature of the accused's actions means that one or more of the elements cannot be met (mens rea). the accused may state their actions were involuntary due to:
- intoxication
- automatism
- accident
58
the role of common law in developing the elements of and defences to murder
many of the principles and elements of murder have been developed through common law. the definition of murder is in common law in the Crimes Act
59
the role of statute law in developing the elements of and defences to murder
various additions and changes have been made to murder and the defences through statute law. The Victorian Parliament has also played a significant role in changing the law regarding murder in family violence cases and abolishing certain defences.
60
murder trends and statistics
In Victoria, murder rates have generally fluctuated, without any clear increase or decrease. the murder rate reflects the size of the population.
61
possible impacts of murder
- loss of victims life
- devastating impact on victim's family and friends, including grief, anger, emotional trauma which can be long lasting
- impacts public confidence in the police and legal system
- people who live close may feel unsafe
- the broader community may feel vulnerable and cautious
62
culpable driving
the act of causing the death of another person while driving a motor vehicle in a reckless or negligent manner or while under the influence of drugs or alcohol
63
elements of culpable driving
for a person to be found guilty of culpable driving, the prosecution must prove the following two elements:
- the accused was the driver of the motor vehicle
- the accused culpably caused the person's death while driving the motor vehicle
64
element 1 - the accused was the driver of the motor vehicle
this means that the accused must have substantial control over the movement of the motor vehicle. motor vehicles are those intended to be driven on a highway (cars, trucks, buses, motorbikes), not a railway or tramway.
65
element 2 - the accused culpably caused the person's death while driving the motor vehicle
the accused must have been driving the vehicle in one of the following ways:
- driving recklessly: consciously and unjustifiably disregarding a substantial risk that another person would die or be seriously injured
driving negligently: failing to observe a reasonable standard of care
- under the influence of alcohol/drugs: to the extent of being incapable of properly controlling the vehicle
66
possible defences to culpable driving
failure to prove both elements will result in the accused not being found guilty. the accused can also put forward specific defences:
- duress
- sudden and extraordinary emergency
- involuntary actions
67
the role of common law in developing the elements of and defences to culpable driving
there is not a long history of culpable driving through the common law as motor vehicles were only introduced in Australia in the 1890's, meaning the laws are relatively new. the role of the courts is largely to interpret the legislation and apply it to the facts of the case.
68
the role of statute law in developing the elements of and defences to culpable driving
culpable driving is a statutory offence under the Crimes Act 1958 (Vic) and was initially defined in statute law. the penalty of the crime has been changed from max 10 years to 20 years by the parliament, showing a change in the attitude of society.
69
culpable driving trends and statistics
In Victoria, there has been an 8.4 % in the number of culpable driving deaths. over the past 5 years, there has been no trend of increase or decrease in offences, though over time there has been an increase in imprisonment rates for the offence. speeding, alcohol and high-risk behaviour were the most common causes from 2011-2016
70
possible impacts of culpable driving
- long-term personal, social and economic effects on the offender, victims, their families and the community
71
crimes against the person
for example, homicide, assault, sexual offences, stalking, abduction etc.
72
crimes against property
arson, property damage, burglary/breaking and entering, theft etc.
73
purposes of civil law
civil law aims to:
- achieve social cohesion by providing guidelines for acceptable behaviour so that individuals can live in harmony
- protect the rights of individuals
- provide an avenue for people to seek compensation where a breach of civil law has occurred
- provide a means to seek compensation, eg when a person's rights are infringed, civil law provides a way to return the person harmed to their original position
74
types of civil law
- tort law (negligence, defamation, nuisance, trespass)
- contract law
- family law
75
breach
one of the key elements in a civil claim that the plaintiff must prove is that there has been a breach by the defendant. meaning the defendant in some way has failed to follow a law or obligation
76
causation
one key element of a civil case that the plaintiff has to prove is that the actions of the defendant caused the harm suffered by the plaintiff and that the harm would not have occurred if not for the actions of the defendant. there must be a link between the actions of the defendant and the harm of the plaintiff.
77
loss
the plaintiff will only be able to obtain a remedy if it can be proved that they suffered loss or harm. the loss in a civil case can include:
- economic/financial loss
- property damage
- personal injury
- pain/suffering
- loss of amenity (enjoyment of life, satisfaction, family life etc.)
78
limitation of actions
for all civil claims, there is a time in which the wronged party must sue the wrongdoer -this time is known as the 'limitation of actions'. the reason for the time limit is to resolve disputes efficiently and avoid the risk of unreliable evidence.
79
the burden of proof in a civil case
in a civil case, the burden of proof lies with the plaintiff as they initiated the action, meaning the plaintiff must present evidence to establish the defendant is in the wrong.
80
the standard of proof in a civil case
in a civil case, the plaintiff must prove the case on the balance of probabilities, meaning the plaintiff must prove they are most likely in the right, and the defendant is more likely in the wrong.
81
possible plaintiffs in a civil dispute
- the aggrieved party: the person whose rights have been and infringed and has suffered the loss
- other victims: who have indirectly suffered loss or damage as a result of the actions of the defendant
- insurers: companies who enter into an insurance policy with the person. under the insurance policy, the company will agree to provide protection from financial loss
82
possible defendants in a civil dispute
- the wrongdoer: the person/company who caused the loss or damage to the plaintiff
- employers: the employer of the wrongdoer may be liable instead of the employee as they have a right, ability or duty to control the activities of the wrongdoer.
- persons involved in wrongdoing: a person is involved if they encouraged or organised the wrongdoing, were directly or indirectly involved or conspired with others to cause the wrongdoing
- insurers: it may be possible for a plaintiff to sue the insurer of the person who has caused loss or damage
83
tort law
an area of civil law. a tort is a civil wrong that one person commits towards another.tort law deals with the rights and obligations that people owe to one another, as well as the infringement of those rights. the four types of torts are negligence, defamation, nuisance and trespass
84
negligence
occurs when someone who owes a duty of care to another person breaches that duty, causing harm or loss.
85
the rights protected by the law of negligence
- negligence protects an individual's right to be safe from harm
- protects individuals from wrongful conduct, particularly where a person acts recklessly or with complete disregard for others
86
elements of negligence required to establish liability
when claiming another person has been negligent, the plaintiff must prove that the following elements exist:
- duty of care
- breach
- causation
- injury, loss or damage
87
element 1 - duty of care
a plaintiff must establish that the defendant owed them a duty of care. a person owes a duty of care if:
- the risk was foreseeable
- the risk was significant
- a reasonable person would have taken precautions to eliminate the risk of harm
88
element 2 - breach
a plaintiff must prove that the defendant has breached the duty of care.
89
element 3 - causation
the plaintiff must prove that the injury or loss was caused by the breach of the duty of care.
the harm may be too remote from the breach of the duty of care, or there may be a break in the chain of causation, meaning a new act occurred between the actions and the claim.
90
element 4 - injury, loss or damage
the plaintiff can only seek a legal remedy through the law of negligence if it can be proved that they suffered injury, loss or damage as a result of the actions.
91
limitations of actions - negligence
the Limitations Of Actions 1958 (Vic) sets out the limitation period for negligence claims. they range from 3-6 years, depending on the injury suffered.
- general negligence claim (6 years)
- personal injury includes disease or disorder (3 years)
- the injury was death or personal injury (3 or 12 years)
92
possible defences to negligence
the defendant can claim that the plaintiff has not established all the elements of negligence. if all of the elements are proven, the defendant can put forward:
- contributory negligence
- assumption of risk
93
defence 1 - contributory negligence
the defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm. eg - a plaintiff may make a claim against someone who pushed them, however, the claim would be reduced if the plaintiff was proved to be intoxicated at the time.
94
defence 2 - assumption of risk
refers to the voluntary acceptance of the risk of injury. the defendant must prove that the plaintiff was aware of an obvious risk and that they voluntarily chose to take the risk.
95
the role of common law in developing the elements of and defences to negligence
the law of negligence was largely developed through common law. it was inherited by Australia through the English common law, where the principles of negligence were established in the case 'Donoghue V Stevenson' which created the neighbour principle and allowed parties to sue manufacturers who were negligent.
96
the neighbour principle
in relation to negligence, the common law rule that a person must take reasonable care to avoid acts and omissions that can be reasonably foreseen as likely to injure their neighbours (anyone who is affected by their actions)
97
the role of statute law in developing the elements of and defences to negligence
the common laws regarding negligence have been adopted and modified by many statutes in Australia. Part X of the Wrongs Act is the main legislation in Australia which governs negligence claims, this act changes many common law principles relating to negligence
98
possible impacts of the breach of negligence on the plaintiff
- loss of life
- permanent physical incapacity
- serious physical injury
99
possible impacts of the breach of negligence on the defendant
- loss of business: as a result of the publicity of the dispute
- public humiliation: a result of the publicity of the claim
- costs: if the defendant must pay legal fees which can result in financial hardship
100
defamation
the tort of defamation is aimed at protecting the character and reputation of individuals against attempts to discredit them. a statement/published material is considered defamatory if it is untrue and lowers the reputation of the plaintiff.
101
the rights protected by the law of defamation
- the right to freedom of expression
- the right to a character and reputation
defamation laws will place reasonable limits on the freedom of expression but will aim to uphold that right by balancing it against the right to reputation.
102
the elements of defamation
in order to establish defamation, the following elements must be proven:
- the statement is defamatory
- the statement is untrue
- the defamatory statement refers to the plaintiff
- the statement has been published/communicated to others by the defendant
103
element 1 - the statement is defamatory
the plaintiff must establish that the statement made by the defendant is defamatory. a statement is defamatory if it lowers a person's reputation or standing in society, exposing them to ridicule, hatred or contempt.
104
element 2 - the statement is untrue
a plaintiff cannot be defamed if the statement is true
105
element 3 - the defamatory statement refers to the plaintiff
the plaintiff must establish that the statement refers to them. their name does not need to be mentioned but it may be sufficient to prove that people hearing, reading or seeing the statement would conclude it was about the plaintiff.
106
element 4 - the defendant published the defamatory statement
the plaintiff must prove that the statement was communicated to a person other than the plaintiff. comments become defamatory once a third person hears, reads or sees the material.
107
the limitation of actions (defamation)
a claim of defamation must be brought within one year from the date of the publicaton of the matter.
however, the plaintiff may apply to a court for an order extending the limitation period, a court may extend it to up to 3 years.
108
possible defences to defamation
the defendant may argue that any or all of the elements have not been proved. otherwise, the defendant can rely on a defence:
- justification
- contextual truth
109
defence 1 - justification
applies when a defamatory statement is substantially true. meaning the vast majority of the article is true
110
defence 2 - contextual truth
applies when a number of defamatory statements are made within the same context of statements that are substantially true, and the defamatory statements do not further harm the reputation of the plaintiff.
111
the role of common law in developing the elements of and defences to defamation
prior to 2006, the law of defamation in Victoria was governed by common law. the elements and defences were developed through a series of cases. the key principle of defamation in common law was the distinction between libel and slander.
112
the role of statute law in developing the elements of and defences to defamation
defamation law in Australia changed majorly in 2005 when uniform legislation was introduced - prior to this, common law and legislation were different in all states of Australia and plaintiff's could choose the state in which they wanted to issue proceedings, meaning the law was inconsistent. now one statute covers the whole country regarding defamation.
113
the impact of defamation on the plaintiff
- loss of reputation: loss of status, may be avoided by people who they once associated with
- loss of wages and livelihood: plaintiff may need to take time off work for court proceedings
- unemployment: plaintiff may lose their job if the defamatory statement negatively alters the reputation of their employer
114
the impact of negligence on the defendant
- costs: defendant may be ordered to pay the legal costs of the plaintiff, resulting in financial hardship
- need to sell assets: may be forced to sell assets to meet the cost of the damages amount
- public humiliation: a consequence of the publicity of the case
