legal system

precedent flow within the court hierarchy

a judge-made decision that stands as an example or guide for future decisions in similar factual circumstances.

to stand by what has already been decided.

judges can follow and apply the reasoning of past similar case outcomes to decide the judgement of a case.

precedent which binds courts at a lower level in the court hierarchy than the court that made the precedent

→high court

→supreme court

→district court

→magistrates court

influences (not binded!!) the courts higher than and equal to the court that made the precedent

latin for “reason of decision”

it is the judge’s reasoning for the judgement they’ve made that is the critical component of precedent.

binding precedent bind precedent to all lower courts, whereas persuasive precedent only influences (not binded) courts above and equal to the court in which the precedent is made

-obiter dicta (latin)

→”sayings by the way” - so that future judges with similar cases may use obiter dicta as a guide to their own decision making.

ratio decidendi

→the judicial reasoning for the judgement of a case.

-evolution of common law

→replacing outdated precedents and adapting new precedents to changing society and circumstances)

→fair * parties get the same treatment as other parties

→predictability * parties can be reassured about how a court will judge their case based on similar past case outcomes

→consistency * similar cases will have similar outcomes

→flexibility * is there is no precedent, courts may be free to create new common law to resolve a case.

→lower court judges who are bound by the precedents of higher courts may disagree of a precedent despite having to apply it. if a judge thinks a precedent is unjust, their ratio will outline the reasons for this. this invites a party to appeal to a higher court with the power to overrule the precedent (change to common law!!!)

→two courts at the same level may produce two different judgements, thus conflicting ratios in similar cases. both ratios will stand until the conflict is resolved.

-until the conflict is resolved, there will be confusion(breaching rule of law’s requirement for laws to be clear, consistent and coherent) and unpredictable.

judgements of higher courts are binding on the lower courts.

the non-critical judicial reasoning outlined in the decision of the courts

the decisions of higher courts are binding on lower courts.

overruling

disapproving

distinguishing

reversing

a superior court may create a new precedent rather than following the one already made if it was in a lower court

→If they disagree with the lower court, the superior court may substitute its own ratio.

Occurs when a court decides not to follow a previous decision set by a court at the same level.

→The high court sometimes takes this action and creates ‘new law’

If a court decided that the case before it is substantially different on the facts  (the circumstances of a crime can be completely different to another, influencing the judgement of the case) from any previous case, its decision will be different or distinguished from existing precedents.

If the higher court finds the law has been misapplied it will reverse the judgement and substitute a correct ratio decidendi for the ratio used by the lower court.

→the fact that the law has been misapplied

law made by courts

statue law

common law is made by judges in a court, using precedent - decisions made in previous similar cases to decide the judgement of a case before them.

overruling, disapproving, distinguishing and reversing precedent

reversing a decision is based on the fact that the law has been misapplied, whereas overruling a decision is simply when the high court disagrees with the decision made in lower courts and can overrule it.

rules of conduct enforceable by the court

→most powerful social controller and regulator that exists.

→to promote and represent the values of the community

→provide a structure for the creation, enforcement and alteration of the law in accordance with the wishes of society

→regulate and control human activity within a society

→provide a clear statement of behaviours that are considered acceptable within the community.

→provide a basis for the protection of people against behaviour that removes their social and economic freedom

laws are “formal rules’ set by society as a whole. when they are broken, they are enforceable by the courts. however, informal rules are not enforceable through the courts

→protect and regulate key areas of social interaction for the public

1. the people of the colonies (society)

2)the almighty god (religious times)

3)the crown.

→strict rules of evidence and procedure

→consistent hearings

→right to an open hearing(transparency→justice)

→right to appeal

→presumption of innocence

→right to silence

1)enforceability

→legal consequence for law breaking

2)universality

→the law applies to everyone, no one is above the law. informal rules may apply to a certain category of people.

3)legitimacy

→for the law to exist effectively, it must have legitimacy (consent of the people→whereby they follow the law through moral obligation, not coercion.

regulating the conduct of individuals with other individuals

the order in importance of courts in legal decision making.

1)court of first instance

2)intermediate court

3)superior court

→ensures judicial decisions are fair, predictable and consistent.

→helps precedents to flow down

→helps appeals to flow up

-minor and indictable offences

-up to $75,000

-serious criminal offences for which the max penalty is 20 years

-up to $750,000

very serious criminal charges

above $750,000

minor and indictable offences (burglary), property cases

breaking and entering, serious assult

murder, manslaughter

the supreme court is granted to hear appeals from the supreme court of each state

lower courts follow the decisions of higher courts

ensures consistency whilst allowing the law to be modified over time.

-coherency

→usually consistent because it applies precedents

-legally enforceable

→ decisions of higher courts are binding on lower courts

-reflect changing community values

→acceptable laws and policies that are applied to the community

transparency

→citizens having the right to know and have access to documents about the government for effective public oversight.