VCE Legal Studies AOS 1 warm up questions Flashcards
(9 cards)
analyse how the doctrine of precedent affects the ability of courts to make laws
The doctrine of precedent is a judicial process whereby the ratio decidendi behind decisions in courts of superior record must be following in lower courts in the same court hierarchy in cases with similar material facts. This implies that binding precedent can be somewhat restrictive in the ability of lower courts to adopt a broad or new interpretation of the law, in cases of similar material facts to existing decisions made in higher courts. However, judges can distinguish between the material facts of a case, as was done in Davies v Waldron which enables them to depart from existing reasoning and create new precedent. Thus, this ability of lower courts to distinguish between the material facts of cases where binding precedent has already been created in higher courts, indicates that lower courts can make law to some extent.
explain one difference between an indictable offence and a summary offence
One difference between an indictable offence and a summary offence is the severity of the offending. Indictable offences are considered to be severe offences, causing a significant impact. These involve murder, rape, homicide or commercial drug offences, and are contained in the Crimes Act and heard in higher courts. Whereas summary offences are relatively minor in comparison and have a far less detrimental impact than indictable offences. Summary offences include theft or minor assault; these are contained in the Summary Offences Act and heard in lower courts. As such, the severity and detrimental impact indictable offences have, in comparison to the less severe impact of summary offences is a key difference.
outline one reason why the court hierarchy is needed in determine criminal cases
The court hierarchy is necessary in determining criminal cases to enable the operation of the doctrine of precedent. The doctrine of precedent is the common law principle by which the reasons for the decisions of higher courts (ration decidendi) is binding on courts ranked lower in the same court hierarchy where the material facts are similar (stare decisis). The formation of precedent is necessary in the role of courts in law making (common law) and is applied in determining criminal cases. Without the existence of the court hierarchy – courts ranked from low severity to high severity – the doctrine of precedent would not be operational; thus, it is necessary in determining criminal cases.
Distinguish between mitigating factors and aggravating factors to be considered in sentencing and provide an example of each in bob’s case
Mitigating factors differ from aggravating factors in regard to the effect they have on the sentence imposed. Mitigating factors are facts or circumstances about the offender or the offending that can reduce the offender’s culpability and lead to a less severe sentence being imposed. In contrast, aggravating factors are facts or circumstances about the offender or offending that increase the offender’s culpability and can lead to a more severe sentence being imposed. In Bob’s case, the fact that he had been cooperative with the police since his arrest would be considered a mitigating factor that could lead to a less severe sentence whereas the use of the firearm is an aggravating factor that increases his culpability and would likely lead to a more severe sentence.
Define the term ‘doctrine of precedent’ (2 marks)
The doctrine of precedent involves judges following the reasons for the decisions of courts higher than them within the court hierarchy, by determinising cases with similar material facts are similar to those present when the precedent was established. The doctrine of precedent provides consistency, predictability and fairness in court decisions within the legal system.
Explain the purpose of a committal hearing and its role in the criminal justice system? (4 marks)
A committal hearing is conducted in the Magistrates’ Court when an accused person is charged with an indictable offence and pleads not guilty. The main purpose is to determine whether the prosecution’s evidence is of sufficient strength to support a conviction at trial, known as a prima facie case.
Explain the purpose of a committal hearing and its role in the criminal justice system (4 marks) 2nd
This process helps to uphold fairness and access by ensuring that weak or unfounded cases do not proceed to the County Court or Supreme Court, which would otherwise waste court resources and cause unnecessary stress to the accused and victims. If the magistrate finds there is enough evidence, the matter is committed to trial in a higher court, where a jury may determine guilt. If not, the case is dismissed.
Explain the purpose of a committal hearing and its role in the crinimal justice system
Therefore, committal hearings act as a filtering process, promoting efficiency and just outcomes in the criminal justice system.
Describe one purpose of plea negotiations in crinimal justice system (2 marks)
Plea negotiations are a fundamental aspect that prevails the criminal justice system through efficiency and fairness in maintaining decisions. plea negotiations encourage the accused in a criminal case to plead guilty, which follows a resolution in cases without the usage of a jury and financial dispairment. This process allows courts to save time and resources, which reduces the psychological trauma faced by victims and witnesses, allowing for fairness without proceeding a trial.
