2. Australian Court Hierarchy
High Court of Australia
Court of Appeal
Supreme Court
District Court
Magistrates Court
Federal Court
Federal Circuit Court
Family Court
Discussion: Why do we need so many different courts?
High Court of Australia:
Interprets the Constitution
Settles disputes between States, Territories and Commonwealth
Hears appeals from Supreme, Family and Federal Courts.
Court of Appeal
Hears appeals from Supreme/District Courts
Supreme Court
Hears serious criminal cases (e.g. murder, manslaughter)
Hears civil matters over $750,000
District Court
Hears serious criminal cases (e.g. rape, armed robbery, fraud
Hears civil matters over $150,000
Hears appeals from the magistrates
Magistrates Court
Hears summary criminal offences
Commits cases to the higher courts (committal hearings)
Hears civil matters less than $150,000
Federal Court
Deals with breaches of Federal (Commonwealth) legislation
Reviews decisions made by Federal Government Officers.
Hears appeals from Federal Circuit Court
Family Court
Hears divorce proceedings
Deal with residence of children in marriage / de facto relationships
Hears family related appeals from Federal Circuit Court
Federal Circuit Court
Does not deal with criminal matters
Deals with the judicial review of administrative decisions
Bankruptcy
Family Law – can provide relief up to $750,000
QCAT (Queensland Civil and Administrative Tribunal)
Independent tribunal established in 2009
Actively resolves disputes in a way that is fair, just, accessible, quick and inexpensive
Hears cases on minor civil disputes (e.g. minor debts, fencing and tree disputes between neighbours) and other matters conferred onto it by legislation
Also can review decisions of other government or statutory bodies (e.g. Centrelink)
QCAT

3. Doctrine of Precedent
The decision of a court on a matter of law is binding on all courts lower in the judicial hierarchy.
Encyclopaedic Australian Legal Dictionary
This fundamental principle binds the Australian court hierarchy together.
A precedent is a legal rule which has been established in a previous legal case.
Decisions of higher courts are binding on lower courts.
Can be binding or persuasive
EG: the ratio is binding, obiter is persuasive
Australia inherited precedents (common law, case law) from England
Similar cases should result in similar outcomes.

4. Separation of Powers Australian Constitution Legislature Executive
Judiciary
Legislature
Executive
Judiciary
The Australian Constitution provides for three arms of government.
The Separation of Powers is a ‘check and balance’ used to ensure that no arm of government abuses its power. Each arm is accountable to the law, and keeps the other arms in line with the law.
Legislature
‘Parliament’ – comprised of the House of Representatives, the Senate and the Governor-General (representing the Queen)
Executive
This arm of government is responsible for administering and carrying out the laws created by the legislature.
Judiciary
The ‘courts’ – responsible for enforcing the law and ensuring the other arms don’t overstep their boundaries.
Senate
Government Departments
Courts
House of Representatives

5. Legislature
The Senate and House of Representatives have the power to make laws
The Legislature is made up of democratically elected representatives from around Australia
House of Representatives
150 members - each from a different electorate
Each electorate has the same number of voters (therefore, NSW has more members than Tasmania)
Senate
76 members - membership divided evenly between states
The House of Representatives at Parliament House, Canberra

6. Government Departments have the power to administer and carry out laws
Executive
Government Departments have the power to administer and carry out laws
The Executive government are responsible for the implementation and administration of laws passed by parliament.
Constitutionally, the Governor-General heads the Executive Government
In practice, the Governor-General acts on the advice of the Prime Minister.
A Minister is a member of the legislature who has been chosen to also work as part of the executive
Ministers are responsible for matters on a specific topic (their portfolio).
Example: Police officers enforce legislation such as the Criminal Code.
QUESTION: How separated are the legislature and the executive?
ANSWER: Australia adopted the ‘Westminster system of parliamentary democracy’ from England.
Within this system, separation is not total as the Executive government is drawn from the Legislature.
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.

7. A criminal courtroom in the Queen Elizabeth II Courts of Law
Judiciary
The courts have the power to enforce laws, independent of the other arms of government
The Judiciary are independent of the legislature and executive and ensure the other arms of government don’t abuse their power.
It is important to ensure the judiciary remains independent and impartial.
A criminal courtroom in the Queen Elizabeth II Courts of Law

8. The Rule of Law
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 is the principle that no person is above the law (we are all ruled by ‘the Law’)
Even the Prime Minister and the government are accountable to the law.
Example: the police cannot break the law in carrying out their duties as they are subject and accountable to the law.
Each arm of government is bound by this fundamental principle.

9. Civil and Criminal Law
If a person physically assaults another person by striking them with a fist – does the matter fall under criminal law or civil law?
It can fall under both:
Criminal: Assault (under ss 245 and 246 of the Criminal Code)
Civil: Battery (under tort law)
This section is about drawing the distinction between criminal and civil cases.
Question: If a person physically strikes another person – is it a civil or criminal matter?
Answer: Physical assault can be BOTH:
A criminal matter (such as assault under the criminal code)
A civil matter (such as battery under tort law)
So what’s the difference?

10. Criminal Law
Criminal 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.
Criminal cases are brought by the State.
A jury is used.
Mention the Department of Public Prosecutions (DPP).
Burdon of Proof is BRD
Appeals: The accused can appeal against a verdict.
The accused and the DPP can appeal against the sentence.

11. 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.
Civil cases involve disputes between individuals.
A jury of 4 is used in rare cases (e.g. defamation)
Burdon of Proof is BoP
Either party can appeal a decision

12. Criminal Trial Process
Introduction Slide.
The next slide describes the journey an accused person takes through the legal system, from:
Committing an offence
Arrest and Bail
Magistrates Court
Higher Courts
Appeal
The Court of Appeal

13. Criminal Trial Process
An offence is committed
Police investigation
Bail is considered
Charge and arrest
Possible appeal to High Court.
Not enough evidence for trial.
Case Dismissed.
Committal hearing in Magistrates Court
Possible appeal to Court of Appeal.
Matter committed for trial
Hearing in Supreme or District Courts
Sentencing
Not guilty / No plea
Yellow Boxes: This all happens prior to the matter entering the court system.
Charge and Arrest
The police will charge the accused and either:
Arrest the accused and take them into custody, or
Issue a ‘Notice to Appear’ – the accused is free to go, but must appear in court on the date set in the Notice.
Bail
The police can bail. If bail is refused, the matter can be taken to court and the courts can grant bail.
ONUS: on the police to prove a person should not be granted bail.
For a murder trial, not likely they would grant bail – seriousness of the offence, flight risk because murder is a mandatory life sentence.
Committal hearing:
The magistrate determines whether there is enough evidence for the matter to be committed to the higher courts
a) If there is not enough evidence, the matter is dismissed.
b) If there is enough evidence, the matter is committed to a higher court.
Supreme/District Court:
This is where the defendant enters a plea.
If the defendant pleads ‘GUILTY’, the matter goes directly to sentencing
If the defendant pleads ‘NOT GULITY’ the matter goes to trial.
Trial:
The jury can find a verdict of ‘GUILTY’ or ‘NOT GUILTY’
In event of a verdict of ‘NOT GUILTY’, the charges are dismissed and the defendant is free to go.
In event of a ‘GUILTY’ verdict, the matter goes to sentencing.
Appeals:
Matters can be appealed to the Court of Appeal, and further to the High Court.
Trial
Guilty verdict
Guilty plea
Not guilty verdict
Sentencing
Charges dismissed

14. Judge Barrister Solicitor A Day in the Life of a …
Briefly mention that we’re going to discuss the roles of a Judge, Solicitor and Barrister.
Solicitor

15. 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 judge presides over courts where trials are held.
Judges ensure the trial follows the law and due process without fear, favour of affection (uphold the Rule of Law).
Judges cannot show bias towards either party.
Judges guides the jury to follow the law rather than preconceived impressions.
Judges hand down sentences

16. 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.
Lawyers:
Barristers and solicitors are officers of the court, this means they have an obligation to never mislead the court, even if it could advantage their client.
Barristers:
specialise in advocacy
have expert knowledge of law (especially relating to evidence and procedure)
wear robes (black), wigs (horsehair) and jabots (collar) to court.
rarely hired directly by clients –often hired 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

17. 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.
Solicitors:
Solicitors have direct access with clients and deal with day-to-day matters.
may represent their client on minor criminal or civil matters in court.
conduct much preparatory work
(eg, drafting legal documents, dealing with clients, daily administration of a case)
provide support for barristers both before and during court
(eg, managing large volumes of documents in court, preparing material before trial)

18. The Research Process Start with Secondary Sources: Textbooks
Legal Encyclopaedias
Journal Articles
Law Reform Webpages
Identify Primary Sources:
Discuss the research process.
Start with secondary sources to get a feel for the general area of law.
Use the secondary sources to identify the relevant primary sources.
Case Law
Legislation

19. LexisNexis Secondary Sources For journal articles and cases:
via the State Library of Queensland
Students can access LexisNexis from home with an eServices card from the State Library.
Open up LexisNexis and do a demo search.

20. www.slq.qld.gov.au Secondary Sources
The State Library of Queensland provides free electronic access to LexisNexis
Show them how to register for a State Library eMembership card.
This enables access to LexisNexis and AGIS from home for free.
Go to the State Library’s homepage:
Click on the “Services” menu, then
Click “Membership”, then
Under join, click complete “Registration Form”
Fill out your details, and an eServices Card will be posted to you within 5 working days.

21. www.austlii.edu.au Secondary Sources
For journals, legislation and cases:
Show them how to use Austlii – go to the website and give them a quick demo.
1) Do an Advanced Search
2) Show them the Noteup feature
Be quick! Don’t linger! The other databases are much better!
Search Tip:
Use the Noteup function.

22. Primary Sources (Case Law)
For Queensland cases:
Open up the SCL website and show them where to find cases:

23. Primary Sources (Case Law)
For High Court cases:
Open up the High Court website and show them where to find cases:

24. Primary Sources (Legislation)
Briefly show the students where they can find Qld and Cth legislation.

25. Negligence – Duty of Care
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

26. Interesting Cases The Vampire Murder 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.
Facts:
Saturday, 21 October 1989
Mr Baldock was lured into a vehicle on the pretext of having sex with one of the woman.
He was taken to a place where Wiggington could drink his blood and
was stabbed at least 15 times in the back of his neck and chest by Wigginton
Jervis had remained in the car during the ordeal.
Jervis and Wiggington were both charged with Murder.
Held:
Wiggington pleaded guilty to murder.
Jervis pleaded not guilty as she was in the car and claimed she was unaware the murder was taking place.
Jervis was found guilty of manslaughter on the basis that she was part of, and agreed to, Wiggington’s plan to drink human blood. The probable consequence of such a plan is that the victim would be harmed.

27. Interesting Cases R v Sebo [2007] QCA 426 Provocation
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 is a partial defence to Murder (it reduces a charge of Murder to Manslaughter).
Facts:
9 September 2005
28yo male and 16yo female were out at a casino
At the end of the night, driving home, the victim taunted the defendant with claims of sleeping with other men.
Defendant stopped the car, told victim to get out.
Victim said she would continue to deceive him.
Defendant reached into backseat, grabbed a steering wheel lock, and stuck the victim.
Defendant continued to strike her after she fell to the ground.
Held:
The defence of provocation was successfully raised. The defendant received a sentence of 10 years in prison.
Provocation: s304 Criminal Code Act 1899

28. Interesting Cases
Merchantable Quality
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
The Case:
The underwear irritated the plaintiff’s skin which developed acute general dermatitis.
The plaintiff bought an action against the retailer, alleging the garment contained a chemical substance and was not of merchantable quality.
Held: The retailer was liable to the plaintiff (under the Sale of Goods Act) as the goods were not of merchantable quality.
Merchantable Quality:
A thing which is only meant for one particular use in ordinary course is not "merchantable" if it has defects which make it unfit for that use but are not apparent on ordinary examination.
Discussions:
How does this impact everyday life? In what situations do stores have to refund products?
- ‘Caveat Emptor’ (let the buyer beware).

29. Interesting Cases R v Hallett [1969] SASR 141 Causation
Facts:
Accused knocked the victim unconscious and left him on the beach.
Tide came in, swept the victim away, and the victim drowned.
Question: Did the defendant cause the victim’s death? Did the tide break the chain of causation?
Held: the sea did not break the chain of causation.
The majority at [149]:
The only question, it seems to us, which can be raised in this connection is whether the action of the sea on the deceased can be regarded as breaking the chain of causation. We do not think it can. In the exposure cases the ordinary operation of natural causes has never been regarded as preventing the death from being caused by the accused.
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?

30. Interesting Cases Duty 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.
Two people sued the Wyong Shire Council in similar situations for breaching their duty of care
SHIRT:
Held: The sign was ambiguous. Was the deep water beyond the sign, or in front of the sign? A reasonable person might have mistakenly believed the water to be deep.
The council was in breach of their duty.
VAIRY:
Held: The rock platform was not especially dangerous compared to other places in the council’s control. The council’s duty to take reasonable care did not require the erection of signs everywhere.
The council was not in breach of their duty
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.