Legal Studies

• Characteristics of an effective law

  reflect societies values

  be enforceable

  be known

  be clear and understood

  be stable
• Jurisdiction

  authority provided to a court to determine a type of case
• Reason for Hierarchy (SAAD)

  Specialisation

  Appeals

  Administrative convenience

  Doctrine of precedent
• Source of law

  Statute and common law
• Statute law

  laws made by parliament
• Common law

  law made by judges through decisions made in cases
• Two situations common law is used

  interpreting the words in a statute

  deciding a new issue when there is no legislation or expanding on a previous principle of law
• Relationship between courts and parliament

  Statutory interpretation

  Courts influencing parliament

  Codification

  Abrogation
• Statutory interpretation

  courts giving meaning to words in a statute when there is a dispute over meaning
• Courts influencing parliament

  courts can influence parliament to change laws through comments made by judges
• Codification

  when parliament passes legislation to confirm a court precedent
• Abrogation

  when parliament passes legislation by abolishing a court precedent
• Types of law

  Criminal law

  Civil law
• Criminal law

  an area of law that protects the community by establishing crimes and establishing maximum penalties or sanctions for offenders
• Civil law

  an area of law that regulates disputes between individuals and groups and seeks to enforce rights where harm has occured
• Crime

  An act or omission that is against an existing law, harmful to an individual or society and punishable by law
• Elements of a crime

  Actus Reus

  Mens Rea
• Actus Reus

  physical element of a crime
• Mens Rea

  mental element of a crime
• Strict Liability Crimes

  Offences that don't require a mental element

  Eg. speeding
• Age of Criminal Responsibility

  minimum age a person must be to be charged with a crime

  In Australia, child less than 10 years cannot be charged with committing a crime
• Doli Incapax

  The principle that a child under 14 cannot form mens rea as they don't have the intellectual or moral capacity to know difference between right and wrong
• Factors of Doli Incapax

  Child's age

  Upbringing

  Maturity

  Prior criminal history

  What the child said before, during and after crime
• Burden of Proof

  The party that has responsibility to prove facts of the case

  Upholds innocent until proven guilty

  In criminal case, burden of proof is on prosecution

  Prosecution has to provide sufficient evidence to prove guilt beyond reasonable doubt
• Standard of Proof

  the strength of evidence needed to prove a legal case

  In criminal case, must prove beyond reasonable doubt
• The Presumption of Innocence

  the right of a person accused of a crime to be presumed not guilty unless proven otherwise
• Ways presumption of innocence is protected

  right to silence

  burden and standard of proof

  right to appeal
• Ways of classifying crime

  according to social purpose

  according to type of offender or victims

  according to severity (most important)
• According to social purpose of the offence

  whether it involved wrongful action, wellbeing of society as a whole, the criminal justice system
• Types of offender or victim

  when the criminal offences are committed by, or impact, a specific social group
• Seriousness of the offence

  Summary or indictable offences
• Summary offences

  minor crimes, less serious

  heard in Magistrates

  no jury
• Indictable offences

  serious crimes

  heard by judge and jury

  County or Supreme court
• Participants in a crime

  Principle offender

  Accessory to a crime
• Principle offender

  any person who commits an offence or is involved

  ACTUS REUS

  committed the offence and carried out the action

  BEING INVOLVED

  assisting, encouraging, directing another person to commit a crime
• Accessory to a crime

  person who, without lawful excuse, assists a principle offender following the commission of a crime

  know the offender committed a serious offence

  help avoid being arrested, prosecuted, convicted or punished
• General Defences to Crimes

  self defence

  mental impairment

  duress

  accident

  automatism

  intoxication

  sudden or extraordinary emergency
• Self defence


  Necessary actions to protect or defend
• Mental Impairment


  if suffering from mental illness at time of offence
• Duress


  at the time of offence there was threat