Evidence –

Admissible evidence –

Any document, testimony or tangible evidence used in the court of law.

Inadmissible evidence –

Any evidence that is considered completely unreliable

Direct Evidence –

The making of a statement, whether orally or in writing

Indirect evidence –

Evidence of facts which make it probable that other material facts are true

Oral Evidence –

When evidence is given orally such as a testimony by a witness

Documentary –

Evidence that has been recorded in documents

Real –

Evidence that consists of physical objects which are relevant to proving either party’s case

Irrelevant –

Evidence that does not relate to a case

Hearsay evidence –

When someone that was not present at the time of the crime, explains information to the court that
he/she was told by someone else

Opinion evidence –

When an inference made by a witness from circumstances which normally can only be made by an
expert or by the fact-finding body

Privileged evidence –

Statements made in the confidentiality of a doctor-patient type relationship and are presumed to be
privileged from disclosure.

Character evidence –

The past criminal evidence or character of the accused

Illegally obtained evidence –

Evidence obtained by illegal means such as threatened violence, or stealing

Powers of government –

Exclusive power: The commonwealth or federal powers

Concurrent power – Powers that can be exercised by the state and federal government

Residual power – The powers that are reserved

5 features of a good law –

Enforceable

Balance individual rights with community’s goods

Be consistent and stable

Apply to everyone equally

Clear and unequivocal

Separation of powers –

Executive – Enforcement of the law, consists of minsters, governor, and the premier

Legislative – Creation of the law

Judiciary – Interpretation of the law

“Partial” separation of powers –

The judiciary power is completely separate from the other power, however, executive and legislative
powers overlap in terms of the PM and the governor general.

Importance of statute law over judge made law –

Common law allows judges to make decisions based on the rulings of earlier cases. Common law is
guided by the regulations set forth in federal or state statutes, but it does no rely exclusively on
those written laws.

Statutory law refers to the written law established by the legislative branch of the government.
statutes may be enacted by both the federal and state government and must adhere to the rules set
in the constitution. Proposed statutes are reviewed by the legislature prior to being enacted into
law.

Doctrine of judicial precedent –

The doctrine of judicial precedent states that judges should refer to previous decisions to help
decide similar cases where the law and facts are alike, if the original case was in either a higher or
equal court. E.g. Donoghue v Stevenson.
Roles of court personnel –

Judge: Controls the running of the court hearing to ensure a fair trial. Decides on matters of law,
decides guilt of accused if there is no jury present and passes sentences onto persons found to be
guilty.

Jury: A group of ordinary citizens who collectively decide on facts of the case. Crucial in trial of
indictable (serious) offences. Rarely a part of a civil trial.

Bailiff: A court officer who assists judge in managing behaviour of parties and other people in the
courtroom, brings witnesses into court, administers oaths, and looks after jury.

Solicitor/ Barrister: In Queensland, the term “legal practitioner” is used generally to describe all
practicing solicitors and barristers. The barrister speaks on behalf of the accused while the solicitor
handles other aspects of the defense case, such as preparing witness statements and ensuring all
evidence is available for presentation on the court.

Clerk: A solicitor employed by the DPP (Director of Public Prosecutions) to assist more legal
practitioner with the running of the prosecution case.

Witness: Gives evidence by answering questions put to him or her by legal practitioners.

Court reporters: Record what happens in court hearing on audiotape and with shorthand machines.

Judges associate: Assists judge with paperwork and research of relevant legal cases and principles.

Accused: A person against whom a court action has been brought.

Public gallery: Members of the public may observe court proceedings unless the court is closed or
the judge rules that behaviour is inappropriate.

Crown prosecutor: Legal practitioner who presents the case for the Crown in Queensland
Department of justice and attorney general. If there was a civil hearing, the person at the end at the
right end of the bar table as viewed from the back of the courtroom would be the plaintiff and/or his
legal representatives.

Media: Journalists often attend to report to court hearing. Photos and recording equipment are
prohibited. Sometime, a judge suppresses publication of sensitive information of the identity of
certain parties.

Corrective services officer: Brings the accused into the court of dock from court house cells and
closely supervises the accused’s behaviour during proceedings.
Legislative process –

1. Drafting a bill

A bill is a proposal for a new law or to change an existing law presented for debate before
parliament. There are two types –

Government bills:

Which are most bills in the states legislation and relate to the public policy, having general
application over the entire state.

Private member bills:

Are bills introduced by an individual member of parliament instead of the government.

2. First reading:

After the bill has been introduced in the parliament, the minister nominates a parliamentary
committee to examine the bill. The minister delivers a speech up to 1 hour, explaining the principles
and policies underpinning the bill. The clerk of the parliament reads the short title of the bill for a
first time.

3. Committee consideration

The nominated parliamentary committee considers the bill and has up to 6 months to prepare a
report on that bill unless there is a resolution by the house or by the committee of the legislative
assembly that the time period be altered.

4. Committee report

The committee tables the report and the bill is placed on the notice paper for the second reading
debate.

5. Second reading

At least one calendar day after the bill has been placed on notice paper, the motion for the second
readings is moved to the ministers in charge of the bill. The leader of the opposition responds for up
to 1 hour. Member of the relevant committee then have the opportunity to speak for up to 20
minutes each. The second reading debate continues with contributions from government and non-
government members for up to 10 minutes. The minister concludes the second reading debate with
a speech up to 30 minutes. The clerk reads the short title of the bill a second time.
6. Consideration in detail
Where bills are examined Claus by Claus. During this stage, amendment may be proposed to
individual clauses of the bill.

7. Third reading

This is the last opportunity for the parliament to consider the bill. The motion may be debated but it
is restricted to the content of the bill as it stands, after consideration in detail and to why the bill
should/not be read a third time. Debate from the second reading or consideration in detail stages
cannot be repeated.

8. Royal assent

If an act does not have a commandment Claus, it will come into force on the date of assent when it
is signed by the governor. Two parchments copies of the bill are signed by the governor, on behalf
of the Queen.

9. Proclamation of act

Once the bill has been signed it become an act of parliament. When an act has a commencement
clause it states –

Will come into force on a specific time

Or upon proclamation in the government gazette

Court Hierarchy –

High court:

Appellate-
Full court (5 of 7 judges) hears appeals from decisions
of 1 of 3 judges of the High Court
Civil and criminal appeals from Federal, Family, and
State Supreme Courts, but only when the leave
(permission) of the High Court is obtained
Original-
Interpreting the Commonwealth Constitution
Disputes between States or Territories
Disputes between States or Territories and the
Commonwealth
Supreme court:

Appellate-
Court of Appeal (3 justices) hears appeals from the decisions of a single Supreme Court or District
Court Judge
Original-
All indictable offenses with penalty of 14 years imprisonment or greater other than those heard by
District Court. These include murder, attempted murder, manslaughter, treason and drug trafficking.
Unlimited jurisdiction
Judicial review
Civil reclaims where amount claimed is above $750,000

District court:
Appellate-

Civil and criminal appeals are generally made from Magistrates Court decisions, tribunals, and some
stationary bodies
Original-

District Court judges also sit in different capacity: Planning and Environment Court, and the
Children’s Court of Queensland
Civil disputes where amount claimed is between $150,000 and $750,000
Indictable offences with maximum penalty of up to 20 years imprisonment, such as rape, arson,
armed robbery, assault occasioning grievous bodily harm, and dangerous driving causing serious
injury or death

Magistrates court:

Minor criminal offences such as simple assault, drink driving, possession of illegal firearms,
dangerous driving, disorderly behaviour, shoplifting, wilful damage to property, failure to pay a
restaurant or hotel bill
Indictable offences heard summarily (without a jury and not requiring all witness to be called and
give evidence in court) if the maximum penalty is three years’ imprisonment or less
Committal hearings
Civil disputes where amount claimed is up to $150,000
Magistrates also sit, ‘wearing different hats’, as the following courts
- Queensland Civil and Administrative Tribunal
- Coroners Court
- Children’s Court
- Industrial Magistrates Court
The advantages of a court hierarchy are as follows -
- Appeal cases
- Locality
- Doctrine of judicial precedent
- Specialisation
- Expertise

Onus of proof:
A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact. In criminal
cases, the prosecution must prove the defendant's guilt Beyond a Reasonable Doubt.

Standard of proof:
The level of certainty and the degree of evidence necessary to establish proof in a criminal or
civil proceeding.

Public actions in amending, creating and appealing laws –

Polls, protests, write a letter to your local MP, study law, become a journalist, become an
activist, shame and blame, petitions, and lobby groups.

Judge VS Jury –
Judge:
For Against
Is a professional in terms of law Higher chance to be bribed
Cost effective Judges can be very objective while deciding a
case which, leads to a harsh decision
Will be fairer than a Jury (no discrimination)
Does not take as long

Jury:
For Against
12 different people all with distinct points of While doing Jury duty people can be away
view from their jobs for weeks
Been used for thousands of years works 97% May not understand the law completely
of the time
Can relate to the defendant If people are forced to partake in Jury duty,
then they may not take the cases seriously
Costs more
It can also scar and affect the innocent
people if they must witness gruesome
murders
Practical application of judicial precedent –

The Qld District Court is currently (March 2017) hearing the matter of an accused person who
has been charged with trespass to property, wilful damage to property and arson. Judge
Wijeyewickrema has requested that the judge’s associate, Erik Pountain, research the
following cases.

Qld Supreme Court of Appeal – R v Fiso; ex parte A-G of Qld [2012] QCA 45
The respondent Fiso was convicted of the offences of trespass to property, wilful damage to
property and arson. He received a sentence of 12 months’ imprisonment, suspended after 3
months with an operational period of 2 years. The AG ground for appeal was that the
sentence was manifestly inadequate.
In the case of R v Fiso it was found that Fiso was convicted of trespass to property, wilful
damage to property and arson. The case was also heard in a higher court with more
jurisdiction, therefore, R v Fiso is binding for this case. Hence, as this is binding precedent for
the case featured above, the defendant should receive a sentence of 12 months’
imprisonment, suspended after 3 months with an operational period of 2 years.