Legal Exam notes

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NORMS AND RULES

Norms and rules are important behavioral controls in our society but they do not have the status or force of laws

NORMS- Socially acceptable habits or customs - e.g. waiting in queues, replying to party invitations by the RSVP date, bringing a gift to a birthday party.

RULES- Regulate our lives in a more formal manner than norms and which have been specifically stated, often in written form-- e.g. school rules, household chores agreed upon at a family meeting, etc.

LAWS

Three features of a law distinguish it from a norm or rule:

Authority- the law must be made by an authority to make a law

Consequences- A law will be enforced by courts and other government authorities eg. police

Regulation - A law regulates the behaviour of all citizens that are members of our society

THE RULES OF PRECEDENT

-Precedent only applies if the case is sufficiently similar

-Lower courts are bound to follow decisions in superior (binding)

-Superior courts do not have to follow decisions in lower courts though they may use them to help make a decision (persuasive)

-Decisions made in other courts such as England and America can also be persuasive

-Persuasive precedent may influence a judge's decision, but the court is not bound to follow it

-How persuasive it is will depend on 2 main factors:

i) The judge- a court is more likely to take into account a precedent set by an eminent and influential judge.

ii) The court- the higher the court the more persuasive

THEORIES OF PUNISHMENT

Retribution

The offender must be punished, so the offender realises that his or her actions are not acceptable to most members of society

Deterrence

To discourage or stop people from committing particular crimes in future, or it might persuade others thinking of committing that crime not to do so.

Rehabilitation

The offender should be given an appropriate penalty, involving treatment and support for any problems the offender has, so he or she reforms any criminal tendencies

Often a judge sentencing an offender will take into account each of these THREE factors when deciding the appropriate penalty

How are these theories of punishment reflected in the law?

the 'Penalties and Sentences Act 1992'

Section 9 of Act says the purposes for which sentences can be imposed

- to punish the offender

- rehabilitate the offender

- discourage the offender

- disapprove of conduct

- protect the community

- A combination of 2 or more of the above

Sentencing options

Most serious= sent to jail

Each criminal offence sets out the maximum penalty for that offence. For example, the maximum penalty for the crime of torture is 14 years' imprisonment. However, in reality the courts usually impose a lighter sentence than the maximum penalty

Other Sentencing Options

Suspended sentence

Indefinite sentencing

Intensive correction orders

Community service orders

Probation

Fines

SUMMARY AND INDICTABLE OFFENCES

Summary Offence

Indictable offence

·

A less serious offence that is

tried by a magistrate in the Local Court

·

A more serious offence (such as murder or rape) tried by

a judge and jury

·

The judgement and punishment

are determined by a magistrate

·

The judgement is determined by a jury and the punishment

is determined by the judge

·

The charge is usually laid by a

police officer or government officer

·

The charge is brought by a public prosecutor working for

the state

·

The punishment is usually less

severe, such as a fine, good behaviour bond or community service

·

The punishment will usually result in imprisonment or a

hefty fine

CIVIL LAW

Under the civil law, the person who has suffered damage (the plaintiff) must bring a private claim (suit) against the alleged wrong doer (the defendant). Private legal disputes may arise between individuals or organisations. Under the civil law, the chief result sought is damages or compensation. The standard of proof according to which the plaintiff must prove their case in a civil action is on the balance of probabilities. The cost of bringing a civil court action is usually payed by the lose in the case.

CRIMINAL LAW

Criminal charges are made by the State. Court cases are commenced and argued by a prosecutor on the behalf of the victim and the police against the accused, or to act as a deterrent. A much higher standard of proof of beyond reasonable doubt is required for the prosecution to prove its case against an accused person in a criminal trial. In criminal prosecutions the State usually pays the cost of bringing the matter to court.

CIVIL WRONGS

Trespass- entering or bring on someone's land without appropriate permission

Libel- defamation (discrediting someone's name) of a person by writing about them in a public situation eg. newspapers, toilet walls, newsletters

Slander- Defamation of a person by spreading rumours to large groups of people

Damage to property- Physical damage to a person's belongings intentionally

Physical damage- Physical damage to a person (intentional or otherwise) or emotional damage eg. bullying, harassment

Negligence- breach of a persons duty of care which causes damage to a person or organisation

Nuisance- acting in a way that is obnoxious or injurious to the community or an individual in relation to their ownership of property

Liability for dangerous animals

CATEGORIES OF CRIME

Type of Offence

Examples

·

Offences against the person

·

Homicide, assault, sexual assault

·

Offences against the sovereign

·

Treason, sedition

·

Economic offences

·

Property offences, white-collar crime, computer offences

·

Drug offences

·

Trafficking, possession, use

·

Driving offences

·

Speeding, drink driving, negligent driving

·

Public order offences

·

Offensive conduct, obstructing traffic, affray, bomb

hoaxes

·

Preliminary offences

·

Attempts, conspiracy

·

Regulatory offences

·

Breach of water restrictions, fire restrictions or public

transport rules

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