High Court of Australia

Court of Appeal Supreme

Court

District Court

Magistrates Court

Federal Court

Federal Circuit Court

Family Court

QCAT

Australian Court Hierarchy

The decision of a court on a matter of law is binding on all courts lower in the judicial hierarchy.

Encyclopaedic Australian Legal Dictionary

Doctrine of Precedent

This fundamental principle binds the Australian court hierarchy together.

Australian Constitution

Legislature Executive Judiciary

CourtsSenate

House of Representativ

es

Government Departments

Separation of Powers

Legislature Executive Judiciary

Legislature

The House of Representatives at Parliament House, Canberra

The Senate and House of Representatives have the power to make laws

Executive

The Hon Tony Abbott MP, Prime Minister. The Governor-General is constitutionally the head of the Executive Government, but in practice the Governor-General acts on the advice of the Prime

Minister.

Government Departments have the power to administer and carry out laws

Judiciary

A criminal courtroom in the Queen Elizabeth II Courts of Law

The courts have the power to enforce laws, independent of the other arms of government

The Rule of Law is the principle that no one is above the law and everyone is equal before the law regardless of social, economic, or political status.

Albert Dicey, 1885

The Rule of Law

Each arm of government is bound by this fundamental principle.

If a person physically assaults another person by striking them with a fist – does the matter fall under criminal law or civil law?

Civil and Criminal Law

It can fall under both:• Criminal: Assault (under ss 245

and 246 of the Criminal Code)• Civil: Battery (under tort law)

So what’s the difference?

Criminal LawCriminal cases are brought by the State through the Department of Public Prosecutions (DPP) against a defendant.

A jury of twelve members are used to determine a defendant’s guilt.

The Crown Prosecutor must prove the defendant’s guilt beyond reasonable doubt.

A defendant can appeal against a verdict and sentence. The DPP can only appeal against a sentence.

Civil Law

Civil cases involve disputes between individuals or private parties.

A jury of four members are used in very rare cases, for e.g. defamation.

The elements of a claim are proved on the balance of probabilities.

Either party can appeal against a decision.

Criminal Trial Process

The Court of Appeal

An offence is committed

Police investigation Charge and arrest

Bail is considered

Committal hearing inMagistrates Court

Guilty plea

Sentencing

Not guilty / No pleaTrial

Not guilty verdict

Charges dismissed

Guilty verdict

Sentencing

Possible appeal to Court of Appeal.

Possible appeal to High Court.

Hearing in Supreme or

District Courts

Matter committed for trial

Not enough evidence for trial.

Case Dismissed.

Criminal Trial Process

Judge

Barrister

Solicitor

A Day in the Life of a …

A Day in the Life of a Judge

A judge presides over a trial. In criminal trials, they determine questions of law, whereas a jury determine questions of fact.

A judge guides the jury to follow the law when determining the guilt of the defendant. After the jury deliver their verdict, the judge hands down the sentence.

Judges uphold the Rule of Law by ensuring that the trial follows the law and due process without fear, favour or affection. Hence, the judge cannot show bias towards either party.

A Day in the Life of a Barrister

Barristers are officers of the court, which means they have an obligation to never mislead the court, even if it could advantage their client.

They specialise in advocacy as

They have expert knowledge of the law, especially in relation to evidence and court procedure.

They wear black robes, horsehair wigs and jabots to court.

They are rarely hired directly by clients, but usually by solicitors on behalf of a client.

Solicitors sometimes seek the expert opinion of barristers when confronted with an unusual point of law.

Barristers work case-by-case, whereas solicitors work hours.

A Day in the Life of a Solicitor

Solicitors are also officers of the court.

They may represent their client on minor criminal or civil matters in court.

They conduct much preparatory work, for e.g. drafting legal documents, interacting directly with clients, the daily administration of case.

The provide support to barristers both before and during court, for e.g. managing large volumes of documents in court, preparing material before a trial.

The Research Process

Start with Secondary Sources: Textbooks

Legal Encyclopaedias Journal Articles Law Reform Webpages

Identify Primary Sources:- Case Law

- Legislation

For journal articles and cases:

LexisNexisvia the State Library of Queensland

Secondary Sources

Secondary Sources

The State Library of Queensland provides free electronic access to LexisNexis

www.slq.qld.gov.au

www.austlii.edu.au

Search Tip:Use the Noteup function.

Secondary Sources

For journals, legislation and cases:

www.sclqld.org.au

Primary Sources (Case Law)

For Queensland cases:

Primary Sources (Case Law)

www.hcourt.gov.au

For High Court cases:

www.legislation.qld.gov.au

www.comlaw.gov.au

Primary Sources (Legislation)

Interesting Cases

Negligence – Duty of Care

Donoghue v Stevenson [1932] AC 562

• Ms Donoghue was drinking a bottle of ginger beer and unknowingly consumed a decomposing snail – as a consequence she suffered shock and severe gastroenteritis

• The House of Lords held, for the first time, that Stevenson owed Donoghue a duty of care

Jervis v R [1993] 1 Qd R 643

• Tracey Wiggington claimed to be a Vampire and claimed she needed to drink human blood to survive.

• Jervis and two other women devised a plan with Wiggington to hunt a victim for her to feed upon.

The Vampire Murder

Interesting Cases

R v Sebo [2007] QCA 426

• A 28 year old defendant killed his 16 year old girlfriend in a jealous rage after she taunted him about her relationships with other men, telling him that he was easy to cheat on.

• The defendant reached into the backseat of his car, grabbed a steering wheel lock, and struck his girlfriend in the head with great force multiple times.

Provocation

Interesting Cases

Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49

The Itchy Underwear Case• Plaintiff purchased woollen underwear• Developed a rash from a ‘chemical substance’ in

the underwear

Interesting CasesMerchantable Quality

R v Hallett [1969] SASR 141• The accused knocked the victim unconscious on a

beach.• Later, the tide came in and the victim drowned.

Is the defendant responsible for the victim’s death?

Interesting CasesCausation

Interesting CasesDuty of Care

Wyong Shire Council v Shirt (1980) 146 CLR 40

Facts:• A deep channel was dredged in a shallow lake by a local

authority.• Four signs were erected in the bed of the lake saying

“DEEP WATER”• A water-skier fell and struck his head on the bed of the

lake.• Shirt sued the local council for breaching their duty of

care.

Vairy v Wyong Shire Council (2005) 223 CLR 422

Facts:• A man dived into shallow water and hit his head on the

sea bed.• The council had not erected signs prohibiting diving.• Vairy sued the council for breaching its duty of care.