VCE Legal Studies flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Presumption of innocence

An accused person is treated as innocent until the prosecution proves guilt beyond reasonable doubt; it underpins bail, trial procedure and the requirement that the prosecution bears the burden of proof.

Burden of proof

The obligation on the party bringing the case to prove the facts in issue; in criminal matters it rests on the prosecution, while the accused generally need only raise a reasonable doubt.

Standard of proof

The degree of certainty required to prove a case; criminal matters require proof beyond reasonable doubt, whereas civil matters require the balance of probabilities.

Summary offence

A less serious offence heard in the Magistrates' Court without a jury, such as minor theft or traffic offences, carrying lower maximum penalties than indictable offences.

Indictable offence

A serious offence heard in the County Court or Supreme Court, usually with a jury on a plea of not guilty, and carrying higher maximum penalties.

Committal proceeding

A pre-trial hearing in the Magistrates' Court that assesses whether the prosecution evidence is sufficient to commit an accused to trial in a higher court.

Bail

The conditional release of an accused person into the community before trial or sentence; refusal means remand in custody pending the outcome of proceedings.

Remand

Detention in custody while awaiting trial or sentence, ordered where bail is refused or not applied for; time on remand may be taken into account in sentencing.

Jury role in criminal trial

Twelve jurors determine whether the prosecution has proved the charge beyond reasonable doubt, returning a unanimous verdict after being directed on law by the judge.

Judge's role in criminal trial

The judge controls the trial, rules on admissibility of evidence, directs the jury on law, and imposes sentence after conviction or a plea of guilty.

Deterrence

A sentencing purpose aimed at discouraging the offender (specific deterrence) and others in the community (general deterrence) from committing similar offences.

Rehabilitation

A sentencing purpose focused on reforming the offender so as to reduce the likelihood of reoffending, often through education, treatment or community-based orders.

Parsimony principle

The sentencing rule that a court should impose the least restrictive sanction appropriate in the circumstances, avoiding imprisonment where another sanction achieves the sentencing purposes.

Aggravating circumstance

A factor that increases the seriousness of an offence or the offender's culpability, such as violence in company, breach of trust, or offending while on bail.

Mitigating circumstance

A factor that reduces the offender's culpability or the sentence, such as an early guilty plea, genuine remorse, youth, or a disadvantaged background.

Victim impact statement

A statement by a victim describing the harm suffered, which the court considers in sentencing; it does not determine guilt and is not evidence of the offence itself.

Exclusive powers

Legislative powers exercisable only by the Commonwealth Parliament, such as defence and customs, which state parliaments cannot exercise concurrently.

Concurrent powers

Powers listed in section 51 of the Constitution that may be exercised by both Commonwealth and state parliaments, subject to section 109 inconsistency rules.

Residual powers

Powers not expressly given to the Commonwealth and left with the states, such as education, health and criminal law, which states continue to exercise.

Section 109 inconsistency

Where a valid Commonwealth law and a state law are inconsistent, the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency.

Section 128 referendum

The procedure for altering the Constitution: an absolute majority in each house, a national majority of voters, and a majority in a majority of states.

Double majority

The requirement at a referendum that a proposed constitutional change be approved by a majority of voters nationally and by a majority of voters in a majority of states.

External affairs power

Section 51(xxix) allows the Commonwealth to legislate to implement international treaty obligations, which can expand Commonwealth power into areas otherwise residual to the states.

Express rights

Rights stated in the constitutional text, such as freedom of religion (s 116), non-discrimination between states (s 117), and jury trial for indictable Commonwealth offences (s 80).

Implied rights

Rights inferred from the text and structure of the Constitution rather than stated expressly, notably the implied freedom of political communication.

Judicial review

The power of courts, especially the High Court, to examine legislation or executive action and declare it invalid where it exceeds constitutional power.

Ratio decidendi

The legal principle or reason for the decision in a case; it binds courts lower in the same hierarchy in later cases with materially similar facts.

Obiter dicta

Statements by a judge that are not essential to the decision; they are persuasive rather than binding on later courts.

Overruling

A higher court in the same hierarchy deciding that an earlier decision of a lower court is wrong, so the earlier principle no longer applies.

Distinguishing a precedent

A court avoids applying a binding precedent by identifying material differences between the facts of the earlier case and the case before it.

Statutory interpretation

The process by which courts determine the meaning of legislation, using the ordinary meaning of words, purpose, and permissible extrinsic materials.

Purposive approach

An approach to interpretation that prefers the construction of legislation that best achieves the purpose or object underlying the Act.

Ultra vires

Beyond the power; a law or action made without constitutional or statutory authority may be declared invalid by a court.