Lecture 2 (Part 1) the Australian Legal System

BUSL250

THE AUSTRALIAN LEGAL SYSTEM

The Role of the Courts

BUSL250 Session 1, 2013 1

The courts are involved in the administration of the

law as well as the resolution of disputes.

The courts have a criminal and civil jurisdiction.

- jurisdiction = power and authority conferred upon a court to hear and determine a matter.

THE AUSTRALIAN COURT SYSTEM

Original and appellate jurisdiction

Original jurisdiction

- hears and decides dispute for the first time

Appellate jurisdiction

- hears and determines an appeal from court lower in

hierarchy


Hierarchy of the Courts

BUSL250 Session 1, 2013 3 Gibson& Fraser, 2012:49

THE HIGH COURT

Established under Commonwealth Constitution in 1901

Most important and authoritative court in Australia

One court common to both hierarchies

Ultimate court of appeal in both systems

Covers whole range of Australian law

Leave to appeal must be granted

Binding on all other Australian courts


FEDERAL COURTS Three levels:

Federal Court Full Bench Federal Court single judge Federal magistrate

Deal with almost all matters involving Commonwealth civil law - Magistrate family law, bankruptcy - Single judge competition law, unfair trading, corporations

law, industrial law. Appeals from magistrates in all but family law

- Full court hears only appeals from single federal judge decisions and Federal Magistrates Court on non-family matters

ALSO Federal tribunals -Specialist, less formal bodies dealing with a wide range of

federal law matters (e.g. immigration)

All sit in all Australian capital cities BUSL250 Session 1, 2013 5

State and Territory Court Hierarchies

6

High Court

Supreme Court

Intermediate Courts

Lower Courts

STATE AND TERRITORY COURTS

Deal with - All civil and criminal matters arising under State and

Territory law

- Matters arising under Commonwealth criminal law are

dealt with in state and territory criminal courts

Equivalent court hierarchies in all states and

territories


NSW SUPREME COURT

Highest court in NSW

There are a number of courts under this name which handle various types of legal disputes including:

- Common law (civil matters over $750,000) - Criminal law (the most serious crimes such as murder)

- Equity

- Probate - Matters commence before a single judge and in criminal cases usually before a judge and jury - Can only deal with matters occurring in NSW (State boundaries)


High Court

Supreme Court

Intermediate Courts

Lower Courts

NSW SUPREME COURTS OF APPEAL

Within Supreme Court are also courts of appeal that hear

appeals from the lower State courts and from decisions of the

single judges within the Supreme Court

The courts of appeal comprise 3-5 judges

The Court of Appeal handles appeals in all matters except

criminal offences

The Court of Criminal Appeal hears appeals in criminal matters

Appeals may be made from these courts of appeal to the High

Court of Australia (with leave)


High Court

Supreme Court

Intermediate Courts

Lower Courts

NSW DISTRICT COURTS

Supervised by a judge (your honour)

Jurisdiction limited to cases within NSW

More serious criminal matters (except murder, treason or piracy)

Hears appeals from local court decisions and various tribunals

Appeals can be made against NSW District Court decisions to

NSW Supreme Court (Court of Appeal) or NSW Supreme

Court (Court of Criminal Appeal) depending on type of case


High Court

Supreme Court

Intermediate Courts

Lower Courts

LOCAL COURTS IN NSW

Supervised by Magistrates (your honour),

possessing original jurisdiction only

Geographic limits

In criminal cases, the court in which all offences are first

mentioned thereafter, procedure depends upon

whether matter is dealt with

- summarily

- on indictment

Limited powers to hear family law matters and criminal

matters involving children

All appeals (civil or criminal) go to District Court


High Court

Supreme Court

Intermediate Courts

Lower Courts

Criminal Procedure


Proceedings commence by either:

summons or

arrest

For criminal offences a committal hearing determines whether there is sufficient evidence to proceed to trial

For indictable offences a trial takes place in a District or Supreme court

Elements The Crown (R) in establishing the guilt of a person must establish the following elements of the crime:

A wrongful act (the actus reus); and

A guilty mind which may involve intention (mens rea), foresight,

knowledge or awareness.

Civil and Criminal Trials

0

Civil Criminal

Parties Plaintiff & defendant Crown & defendant

Burden of Proof Plaintiff Crown

Standard of Proof Balance of Probabilities Beyond Reasonable Doubt

Juries Sometimes Indictable offences only

Result Proved / not proved Guilty/ not guilty

Outcome Remedy Punishment

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PEOPLE IN THE COURT

The judge:

Appointed to all courts above the inferior courts

Is responsible for adjudicating a trial

Their duties include:

- deciding any questions of law

- if there is a jury, instructing the jury on questions of law, deciding

questions of law and summing up arguments impartially

- ensuring rules of evidence and procedure are followed

- passing sentence in criminal cases or determining appropriate

compensation in civil cases

- hearing appeals


PEOPLE IN THE COURT cont

The Jury

- a group of laypersons who decide questions of

fact

- only available in certain courts

- duty is compulsory

- selected randomly from the electoral roll

- challenges

- usually six in civil trial; usually twelve in criminal trial

- charging the jury process


PEOPLE IN THE COURT cont.

The lawyers

- Barristers

- Solicitors


PROCESS OF BRINGING A CIVIL ACTION

Considerations

Commencing proceedings

Pre-trial

Trial

Evidence

Decision

Appeal


EVIDENCE

used to prove the facts in issue in a court proceeding

necessary to back up claim

must be able to prove a case

can take several forms :

documents, sound/video recordings and witness statements

oral statements (testimony) made at court by witnesses

number of rules of evidence established to ensure fairness in the

trial process and to ensure best evidence is admitted.


Alternative Methods to Courts

BUSL250 Session 1, 2013 19 Gibson & Fraser, 2012:61

RULES OF PRECEDENT

Decisions of higher courts are usually binding authority on lower

courts in the same hierarchy where cases have similar facts

Decisions of judges on the same level are not binding but may be

followed for consistency

Decisions of lower courts or courts outside the hierarchy are

not binding

Superior appeal courts are not required to follow their own

previous decisions (unless obviously wrong) but try to do so for

consistency

Lower courts are not bound by the obiter dicta of a higher

court but may choose to follow it (persuasive precedent)


How Statute Law is Made

BUSL250 Session 1, 2013 21 Gibson & Fraser, 2012:100

Coming up next

Introduction to Contract Law


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Lecture 2 (Part 1) the Australian Legal System