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Prepare court Prepare court documentation for criminal documentation for criminal
proceedingsproceedings
JUS404AJUS404A
LegislationLegislation Crimes Act 1900Crimes Act 1900 Crimes (Appeal and Review) Act 2001Crimes (Appeal and Review) Act 2001 Summary Offences Act 1988Summary Offences Act 1988 Law Enforcement (Powers and Law Enforcement (Powers and
Responsibilities) Act 2002Responsibilities) Act 2002 Criminal Procedure Act 1986Criminal Procedure Act 1986 Young Offenders Act 1997Young Offenders Act 1997 Bail Act 1978Bail Act 1978 Crimes (Sentencing Procedure) Act 1999Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998Drug Court Act 1998
How to study LawHow to study Law
Do not try and commit it all to Do not try and commit it all to memorymemory
Understand where to find the Understand where to find the relevant informationrelevant information
Access electronic information Access electronic information whenever possiblewhenever possible
The Criminal Justice SystemThe Criminal Justice System
1. Investigative – police2. Adjudicative – courts3. Correctional – custodial/community
WHAT IS LAW?WHAT IS LAW?
Rules Rules
Rights & responsibilitiesRights & responsibilities
Reflection of societyReflection of society
External InfluencesExternal Influences
Internal practices and proceduresInternal practices and procedures External integrationExternal integration
LegislationLegislation Common law (case law)Common law (case law) Judicial practice and procedureJudicial practice and procedure Information sharingInformation sharing
SOURCES OF LAWSOURCES OF LAW
CustomCustom
Common Law – court decisionsCommon Law – court decisions
Statute Law – parliamentStatute Law – parliament
Delegated legislationDelegated legislation
Common LawCommon Law
CommonCommon lawlaw isis alsoalso knownknown asas casecase lawlaw andand arisesarises fromfrom judicialjudicial decisionsdecisions
PrecedentPrecedent (stare(stare decisis)decisis) isis aa featurefeature ofof commoncommon lawlaw systemssystems
PrecedentPrecedent meansmeans thatthat courtscourts mustmust followfollow decisionsdecisions ofof higherhigher courtscourts withinwithin thethe samesame hierarchyhierarchy
PrecedentPrecedent isis dependantdependant uponupon casecase lawlaw judgementsjudgements
LEGISLATIONLEGISLATION
The formal legal rules made by The formal legal rules made by ParliamentParliament
It is the dominant source of law It is the dominant source of law A necessary requirement of A necessary requirement of
contemporary societycontemporary society ProactiveProactive
THE LEGISLATIVE PROCESSTHE LEGISLATIVE PROCESS
A set procedure is followed:A set procedure is followed: Commencing in the House of Commencing in the House of
Representatives – Representatives – 11stst Reading Reading – proposed Bill presented – proposed Bill presented 22ndnd Reading Reading – speech & debate – speech & debate Committee StageCommittee Stage 33rdrd Reading Reading – if approved moves to – if approved moves to
the Senate & same procedure followedthe Senate & same procedure followed Royal AssentRoyal Assent
Common Law and LegislationCommon Law and Legislation
CommonCommon lawlaw principlesprinciples subordinatesubordinate toto legislationlegislation
CommonCommon lawlaw needsneeds disputesdisputes beforebefore thethe courtscourts toto developdevelop principlesprinciples –– ((DonoghueDonoghue vv Stevenson)Stevenson)
LegislationLegislation playsplays aa reformingreforming andand modernisingmodernising influenceinfluence
LegislationLegislation isis thethe voicevoice ofof democracydemocracy –– judgesjudges notnot accountableaccountable
Delegated LegislationDelegated Legislation
The power to make legislation The power to make legislation remains with the Federal Parliament remains with the Federal Parliament
This power can be delegated to the This power can be delegated to the StatesStates
It is primarily in relation to matters It is primarily in relation to matters that are insignificant to the Federal that are insignificant to the Federal Government but of importance to the Government but of importance to the State GovernmentState Government
Legal CategoriesLegal Categories
Public LawPublic Law Criminal LawCriminal Law Administrative LawAdministrative Law Constitutional LawConstitutional Law
Private LawPrivate Law Contract LawContract Law Trust LawTrust Law Family LawFamily Law SuccessionSuccession Tort LawTort Law Company LawCompany Law
LEGAL PERSONNELLEGAL PERSONNEL
JudgeJudge AssociateAssociate JuryJury SolicitorSolicitor BarristerBarrister Depositions ClerkDepositions Clerk
THE ADVERSARIAL THE ADVERSARIAL PROCESSPROCESS
CriminalCriminal Prosecution Prosecution
commences commences proceedingsproceedings
Accused/defendant Accused/defendant answers the chargeanswers the charge
Primarily freedom at Primarily freedom at riskrisk
Civil Civil Plaintiff commences Plaintiff commences
proceedingsproceedings Respondent/Respondent/
defendant answers defendant answers the claimthe claim
Primarily money at Primarily money at riskrisk
STANDARD OF PROOFSTANDARD OF PROOF
CivilCivil
CriminalCriminal
On the On the plaintiffplaintiff on on the balance of the balance of probabilitiesprobabilities
On the On the prosecutionprosecution beyond a beyond a reasonable doubtreasonable doubt
How to read case lawHow to read case law
Case law is court judgmentsCase law is court judgments Transcript of the proceedings of the Transcript of the proceedings of the
matter matter Written decision of the presiding Written decision of the presiding
decision makerdecision maker Written order of the courtWritten order of the court
Case titleCase title
The prosecuting/complaining party The prosecuting/complaining party name is firstname is first
The defending/accused/responding The defending/accused/responding party name is secondparty name is second
‘‘v’ for versus is in between and is v’ for versus is in between and is pronounced as ‘and’pronounced as ‘and’
Cases starting with ‘R’ rather than a Cases starting with ‘R’ rather than a party name indicate criminal party name indicate criminal prosecution by the Crown (currently prosecution by the Crown (currently Regina)Regina)
LegislationLegislation
PartsParts ChaptersChapters SectionsSections AA SectionSection isis thethe mainmain buildingbuilding blockblock
ofof anan act.act. SectionsSections themselvesthemselves areare brokenbroken downdown intointo smallersmaller parts:parts: SubSub SectionSection ParagraphParagraph SubSub ParagraphParagraph
6666 RequirementsRequirements ofof finefine optionoption ordersorders (1)(1) AA finefine optionoption orderorder mustmust containcontain
requirementsrequirements thatthat thethe offender—offender—
(a)(a) mustmust reportreport toto anan authorisedauthorised correctivecorrective servicesservices officerofficer atat thethe
place,place, andand withinwithin thethe time,time, statedstated inin thethe order;order; andand
(b)(b) mustmust performperform inin aa satisfactorysatisfactory wayway communitycommunity serviceservice directeddirected
byby anan authorisedauthorised correctivecorrective servicesservices officer—officer—
(i)(i) forfor thethe numbernumber ofof hourshours statedstated inin thethe order;order; andand
(ii)(ii) atat thethe timestimes directeddirected byby thethe officer;officer; andand
Section and title
Sub-paragraph
ParagraphSub-
section
Locating LegislationLocating Legislation
www.legislation.nsw.gov.au On introduction page select On introduction page select HomeHome Then select Then select SearchSearch Enter exact or some wordsEnter exact or some words Scroll through the pages until you find the Scroll through the pages until you find the
required Actrequired Act and select and select Instructions are in your Unit GuideInstructions are in your Unit Guide
Alternative locationAlternative location
www.austlii.edu.au National website, includes all State and National website, includes all State and
Federal LegislationFederal Legislation Select Select New South WalesNew South Wales under Cases and under Cases and
Legislation on the left hand sideLegislation on the left hand side Select Select New South Wales Consolidated ActsNew South Wales Consolidated Acts
under New South Wales Legislationunder New South Wales Legislation Select ‘S’ from the alphabet listingSelect ‘S’ from the alphabet listing Locate and select the Locate and select the Summary Offences Summary Offences
Act 1988Act 1988 NOT as user friendlyNOT as user friendly
Navigating legislationNavigating legislation
Once you have located the legislation, Once you have located the legislation, download it in the PDF format if available, download it in the PDF format if available, type ‘Ctrl F’type ‘Ctrl F’
Utilise the find function to locate relevant Utilise the find function to locate relevant sections by entering specific offence sections by entering specific offence titlestitles
Utilise the index on the left hand side to Utilise the index on the left hand side to scroll through chapters and sections scroll through chapters and sections according to chapter and section according to chapter and section numbers.numbers.
Finding offencesFinding offences
What do you do to locate the penalty for What do you do to locate the penalty for murder in the murder in the Crimes Act 1900Crimes Act 1900?? Type Ctrl FType Ctrl F Enter ‘murder’ into the find boxEnter ‘murder’ into the find box Select ‘next’ or ‘previous’ on the find box to locate Select ‘next’ or ‘previous’ on the find box to locate
different uses of the word ‘murder’ in the different uses of the word ‘murder’ in the legislationlegislation
Locate the relevant section that specifies the Locate the relevant section that specifies the penaltypenalty
Answer the question with the set penalty and the Answer the question with the set penalty and the section number to form the habit of locating and section number to form the habit of locating and learning section numbers.learning section numbers.
More offencesMore offences
What do you do to find the elements What do you do to find the elements of the offence of stealing a car?of the offence of stealing a car? Type Ctrl F and enter ‘steal’ or ‘steal Type Ctrl F and enter ‘steal’ or ‘steal
car’ into the find boxcar’ into the find box What do you do if the find box does What do you do if the find box does
not locate the offence?not locate the offence? Enter an alternative word, like ‘motor Enter an alternative word, like ‘motor
vehicle’vehicle’
Types of offencesTypes of offences
Indictable offencesIndictable offences Summary offencesSummary offences Regulatory offencesRegulatory offences Simple offencesSimple offences
DEFENCESDEFENCES
DefencesDefences
Explanation OR excuse?Explanation OR excuse? Can you excuse any behaviour that Can you excuse any behaviour that
breaks the law?breaks the law? Can you explain why you behaved in Can you explain why you behaved in
a manner that broke the law?a manner that broke the law? Will society accept your explanation?Will society accept your explanation?
PresumptionsPresumptions
Presumption of law is something that Presumption of law is something that is accepted as a fact in the absence is accepted as a fact in the absence of the evidence.of the evidence.
Rebuttable presumption is something Rebuttable presumption is something that is accepted as a fact until that is accepted as a fact until evidence proves otherwiseevidence proves otherwise
Irrebuttable presumption is Irrebuttable presumption is something that is accepted as a fact something that is accepted as a fact regardless of any evidence that regardless of any evidence that proves otherwiseproves otherwise
EVIDENCEEVIDENCE
EvidenceEvidence
Evidence is provided to prove a factEvidence is provided to prove a fact It can support a contested factIt can support a contested fact It can disprove an accepted factIt can disprove an accepted fact
Rules of evidenceRules of evidence
Hearsay – evidence must be attested Hearsay – evidence must be attested to first hand and not overheardto first hand and not overheard
Expert – evidence that is accepted as Expert – evidence that is accepted as expert in the area and therefore the expert in the area and therefore the knowledge is unquestionableknowledge is unquestionable
Admissable – allowed in courtAdmissable – allowed in court Inadmissable – not allowed for Inadmissable – not allowed for
various reasonsvarious reasons
How a criminal matter gets to court and How a criminal matter gets to court and
what happens therewhat happens there Police investigate matterPolice investigate matter Arrest suspectArrest suspect Charge suspect with commission of crimeCharge suspect with commission of crime Bail applied for by person chargedBail applied for by person charged In summary matter or by election of accused, trial by In summary matter or by election of accused, trial by
magistratemagistrate Indictable offence requires judge and juryIndictable offence requires judge and jury Accused asked to pleadAccused asked to plead Lawyer for prosecution presents caseLawyer for prosecution presents case Lawyer for accused presents caseLawyer for accused presents case Judge or jury makes finding of factJudge or jury makes finding of fact Judge applies lawJudge applies law Judge makes orderJudge makes order