Key Knowledge 1 The doctrine of precedent 1

Key Knowledge 1. The doctrine of precedent 1

KEY KNOWLEDGE – STUDY DESIGN

INTRODUCTION • HAS THERE EVER BEEN A TIME AT HOME OR AT SCHOOL WHERE YOU HAVE DONE SOMETHING WRONG AND BEEN PUNISHED AND WHERE SOMEONE ELSE IN THE FAMILY OR CLASS DID THE SAME THING BUT RECEIVED A LESS SEVERE PUNISHMENT? • SHARE THIS SITUATION WITH A PARTNER • HOW DID THIS MAKE YOU FEEL? • WHAT DOES THIS TELL US ABOUT HUMAN NATURE? 3

4. 1 – WHAT IS COMMON LAW One of the key characteristics of the common law is the importance of judicial decisions as a source of law. Common law is also known as; (1) Case Law (2) Judicial precedent (3) Judge or court made law 4

THE DOCTRINE OF PRECEDENT • IN OUR COMMON LAW (COURT MADE LAW) SYSTEM PRECEDENT IS BASED ON THE PRINCIPLE OF; • STARE DECISIS ‘TO STAND BY WHAT HAS BEEN DECIDED’ • THIS REQUIRES LOWER COURTS TO FOLLOW AND BE BOUND BY THE DECISIONS OF HIGHER COURTS IN THE SAME HIERARCHY WHERE THE FACTS ARE THE SAME/SIMILAR • IN THIS WAY EARLIER DECISIONS OF SUPERIOR COURTS GUIDE THE JUDGES IN LOWER COURTS • SUPERIOR COURTS DOCUMENT THEIR DECISIONS IN LAW REPORTS. 5

VICTORIAN COURT HIERARCHY 6

RATIO DECIDENDI • THE ‘REASON FOR THE DECISION’ OR THE STATEMENT OF LAW TO BE FOLLOWED IN THE FUTURE • THIS IS BINDING AND MUST BE FOLLOWED BY LOWER COURTS • IT IS NOT THE DECISION OF GUILTY/NOT GUILTY • IT IS NOT THE SANCTION OR REMEDY GIVEN • THIS IS A STRENGTH OF PRECEDENT AS THE DECISION OF A COURT IS RELATIVELY PREDICTABLE AND CONSISTENT 7

OBITER DICTUM/DICTA • ‘THINGS SAID BY THE WAY’ • WHEN MAKING AND EXPLAINING DECISIONS JUDGES MAKE OTHER COMMENTS - IMPORTANT FACTS AND LEGAL PRINCIPLES THAT HELPED THEM TO MAKE THEIR DECISION • THESE STATEMENTS MAY BE INFLUENTIAL ON DECISIONS IN THE FUTURE • THIS INFORMATION IS NOT BINDING 8

BINDING PRECEDENT • WHEN A SUPERIOR COURT MAKES A DECISION IT MUST BE FOLLOWED BY ALL LOWER COURTS IN THE SAME HIERARCHY-WHERE THE MATERIAL FACTS AND LEGAL PRINCIPLES ARE THE SAME • TO BE BINDING IT MUST BE FROM THE SAME HIERARCHY AND FROM A SUPERIOR COURT • THE EXCEPTION TO THIS RULE IS THE HIGH COURT WHICH IS NOT BOUND TO FOLLOW ITS OWN PREVIOUS DECISIONS ALTHOUGH IS USUALLY DOES 9

PERSUASIVE PRECEDENT • PERSUASIVE PRECEDENTS ARE NOT BINDING ON COURTS BUT THEY DO INFLUENCE DECISIONS • PERSUASIVE PRECEDENTS ARE: • FROM A COURT IN ANOTHER HIERARCHY- INTERSTATE OR INTERNATIONAL • FROM AN INFERIOR (LOWER) COURT FROM THE SAME HIERARCHY • FROM THE SAME LEVEL OF THE HIERARCHY • THE OBITER DICTUA (THINGS SAID BY THE WAY) FROM A SUPERIOR COURT CAN ALSO ACT AS PERSUASIVE PRECEDENT ON AN INFERIOR COURT 10

How do I find Law reports? http: //www. austlii. edu. au/ databases. html

YOUR TURN • QUESTIONS 1 - 7 (PAGE 148 OF TEXT) 12