4.2 – Role of Judges in Common Law 1. The main role of courts decide the facts of the case (that...
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Transcript of 4.2 – Role of Judges in Common Law 1. The main role of courts decide the facts of the case (that...
1
4.2 – Role of Judges in Common Law
The main role of courts
decide the facts of the case (that is, what happened)
decide what law applies
apply the relevant law to the facts
reach a decision.
Online Research TaskYou have 10mins
How does someone become a judge? What qualifications are necessary? Do some online search on any of the justices of the High Court and find out about that person’s career before joining the High Court. A brief outline of the background of each of the current justices can be found at http://www.hcourt.gov.au/justices/about-the-justices.
Why would experience as a barrister be of greater value in becoming a judge than experience as a solicitor?
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Role of the judges
Judges don’t make law all the time, they can only make law when;
A case comes before the court and there is no legislation (parliament made law)
There is no precedent in that area
The judge is required to interpret the words or meaning of a statute law
What is a precedent?
Stare Decisis
To stand by what has been previously decided.
PrecedentAppeals
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How do judges apply precedent ?
They analyse previous judgements to determine if there is any binding precedent
Find the ratio decidendi (reason for the decision) – This is the binding aspect of a decision
Discriminate from the Obiter Dicta (things said by the way). These comments are not binding are just comments made by the judge
Identify and apply a persuasive precedent that may be used if no binding precedent – (From another court hierarchy both nationally or internationally or a court of the same level)
Develop a new precedent if required
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Changing a precedent
It may seem that judges have little flexibility to make up their own minds and make their own laws
BUT
Judges do have some flexibility which enables them to change common law to ensure it remains relevant and that the law reflects modern views
Changing a precedent
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Four techniques/ways judges can use to avoid following an earlier decision
There are 4 techniques available to judges if they are confronted by a precedent that they feel is;
inappropriate
Does not fit the circumstances of the present case
Remember R.O.D.D
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R.O.D.D Draw this Diagram
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RRRRRRRReversingRRRRRRR
When a case has gone to a higher court on appeal the judge can change the decision made by the lower court in the same case
Therefore the judge can reverse the precedent set by the last judge and the new decision set by the higher court becomes the precedent
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OOOOOOOverrulingOOOOOO When a superior court decides not to follow an earlier decision of a
lower court, it overrules the previous precedent
A case in a higher court is not bound by the decisions/ precedents of lower courts
The decision in the higher court will overrule the precedent established by the lower court
E. g Supreme Court overrules a County Court decision
A new precedent is therefore created
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DDDDDDDisapprovingDDDDDD A judge can disapprove an earlier decision and reach a different
decision, creating a second precedent for the same set of facts
This can occur in courts at the same level of the hierarchy
If there are a number of binding precedents, lower courts have to decide which is the most appropriate
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DDDDDDDistinguishingDDDDDD
A judge can identify differences between the present case and therefore create a different precedent
This allows the judge to not to have to follow an existing precedent
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Precedent
When a judge Reverses,
Overrules
Disapproves
Distinguishes
A new precedent is formed
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Advantages and disadvantages of the
Doctrine of Precedent
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Precedent provides consistency and fairness
Advantage
When disputes are being resolved parties to a dispute can feel confident that their case will be treated like ones in the past
Disadvantage
Outcomes of similar cases are not always the same
The process of R.O.D.D may result in a very different decision as one in the past
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Precedent provides certainty
Advantage Parties to a dispute
may feel that they can predict the outcome of their case based on a decision of a previous similar case
Disadvantage An outcome is difficult
to predict because there is more than one precedent that may apply to the case
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Precedent provides flexibilityAdvantages
Precedent can be changed by a superior court when it distinguishes cases of similar facts
Disadvantages Judges are
conservative and often prefer to follow earlier decisions made by past judges rather than make a new precedent
This makes the law inflexible, out dated
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Precedent provides for growth in the law
Advantage Areas of law can
develop and grow over time as judges can elaborate and expand precedents
Disadvantage Growth through the
law is expensive, slow.
Cases have to come to court before any development of the law can occur.
Parties to a dispute have to take the risk of taking a case to court
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Precedent is efficient
Advantage Provides guidance in
principles for judges to follow
Judges are impartial and can make decisions without fear of political interference
Disadvantage There needs to be a
dispute and parties prepared to go to court
This is inefficient
It can also be lengthy and expensive
Legislation through parliament can be quicker and cheaper
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Your Turn
Questions 1 – 9
Page 185