The Legal SystemSection 3 - classification of law

Mr Shipp, 2015

Main syllabus points

Hint: This section is quite small but very important to the HSC crime topic

Public law

• Public law is the law which deals with the powers and obligations of governments and citizens

• Three main types of public law:

• Criminal law – body of rules under which certain acts are punished by the state

• Administrative law – laws dealing with government powers/decisions

• Constitutional law – rules governing the executive, judiciary and legislative functions

Hint: These will be done in more detail in HSC Crime

Private law

• Private law is the law which aims to regulate the relationships between individuals, companies and organisations.

• Three main areas of private law:• Contract law – agreement between two or more parties

recognised under the law• Tort law – ‘Civil Wrongs’, interfering with the right of

someone else (Negligence, nuisance, trespassing, defamation)

• Property law – wide area of law dealing with things owned and that of commercial value

• Landmark case concerning the tort of negligence (Failing a duty of care)

• The court decided that the manufacturer has a legal duty to the consumer

Case: Donoghue v Stevenson 1932 UK

Donoghue v stevenson

• A prosecutor and a defendant (also known as the accused)

• The state (through the prosecutor) brings the case to court

• The burden of proof is on the prosecutor to prove the case

Criminal Court procedures

Criminal Cases

• The standard of proof in a criminal case is ‘beyond reasonable doubt’

• Criminal cases can either be summary or indictable:

• Summary offences – heard by a magistrate in the Local Court without a jury

• Indictable offences – usually in the District or Supreme Court, before a judge and a jury

• A person can plead guilty or not guilty

• The prosecution must prove the case beyond reasonable doubt (standard of Proof) providing sufficient evidence to convince the court

• The jury reaches a verdict of guilty or not guilty

• The judge will then impose an appropriate sentence

Proof and Verdict

• Civil cases are court actions involving disputes between individuals and/or organisations

• Between a plaintiff and a defendant

• An individual or organisation brings the case to court

• The ‘burden of proof’ is on the plaintiff to prove the case

• the standard of proof is ‘on the balance of probabilities’

Civil court procedures

• Plaintiff and accused exchange documents called ‘pleadings’ that set out issues to be decided in court

• Parties can get information by a process of ‘discovery’

• Parties can settle the matter without trial if they agree

• If the plaintiff is successful, the judge can award a remedy

Civil Trial Process

• Which court hears the case will depend on the monetary amount or the subject matter

• Plaintiff to prove the case to the court on the balance of probabilities, meaning more likely than not

• There are many legal professionals who play an important role in court proceedings. These include:

• Judge• Solicitor• Witness• Court officer• Court reporter• Prosecutor• Magistrate• Judge’s associate

• Tipstaff

Legal Personnel

Name the following Legal Professions

Hint: It is important to learn the differences shown in this table

Common and Civil Law Systems

Common Law System is used in Australia, based upon precedent

and is judge made law

Civil Law System developed through Ancient Rome, judge

investigation, entirely statute law and no room for judge made law

Known as the Adversarial System

Known as the Inquisitorial System

Civil Law Procedures (NSW) and Civil Law System are not the same