Outcome 3: SAC Preparation Wednesday 5 June 2013

Key concept: Courts make law through precedent

Court hierarchy  When a decision of a superior court establishes a new legal rule, that new rule will be included in the judgment and is referred to as a ‘precedent’ which may be followed in future cases

Key concept: Only binding precedents must be followed

Binding & Persuasive Precedents ScenarioBinding or persuasive?Reason i.The High Court is hearing a case with a fact situation similar to a case that has been decided by the Victorian Supreme Court—Court of Appeal. ii.An appeal from the Victorian County involving a novel fact situation is being heard by the Victorian Supreme Court—Court of Appeal iii.The Victorian Supreme Court is hearing a case with a fact situation similar to a case heard in the South Australian Supreme Court. iv.The Victorian Supreme Court—Court of Appeal is hearing a case with a fact situation similar to a case that has been decided by the Victorian Supreme Court—Trial Division. v.The High Court is hearing a case with a fact situation similar to a case heard three years ago by the High Court.

Key terms  Stare decisis  Ratio decidendi/rationes decidendi  Obiter dictum/dicta  Reversing  Overruling  Distinguishing  Disapproving

Key concept: Courts make law in only limited circumstances

Why do courts use precedent?  Achieves consistency and certainty in the way courts decide cases  Watch the following videos to give you an overview of the doctrine of precedent:  

Courts make law when:  Deciding cases involving issues on which there is NO existing precedent or statute law  Expanding an existing precedent to cover a new situation  When a higher court (HCA or Ct of Appl) overrules an existing precedent  Interpreting statutes

Courts create new precedents  Donohue v Stevenson

Is precedent flexible? RODDRODD

Key concept: Courts create precedents when interpreting statutes

Statutory interpretation  The “studded belt case”: Deing v Tarola (1993) 2 VR 163  The Victorian Parliament enacted the Control of Weapons Act 1990 (Vic) to regulate weapons, other than firearms. Section 6(1) of the act reads: ‘A person must not possess, carry or use any regulated weapons without lawful excuse…’ Sometimes later Regulation 5 was made which reads: ‘The following articles are regulated weapons for the purposes of section 6 of the Control of Weapons Act 1990 (Vic): ‘Any article fitted with raised pointed studs which is designed to be worn as an article of clothing…’  The facts: A man was seen by police wearing a belt with raised pointed studs. He was charged with being in possession of a regulated weapon in breach of section 6. He was found guilty in the Magistrates’ Court and appealed.  The decision: The appeal was heard by a single judge in the Supreme Court of Victoria. The appeal was successful. The word ‘weapon’ had not been defined in the Control of Weapons Act and it was the judge’s interpretation of that word in this case that created a precedent.  The ratio decidendi: Although the judge acknowledged that a studded belt could, in some circumstances, be used as a weapon he decided that of itself it was not a weapon. He also said: ‘The Act can only be given a sensible interpretation if the word weapon is defined as including anything that is not in common use for any other purpose but that of a weapon.’ The ratio has been followed in later cases involving the carrying, possession or use of regulated weapons.

Some questions to consider:  Why do courts have to interpret statutes?  What impact/effect does statutory interpretation have?  Which courts can interpret statutes?  Which courts can set precedents?

Limits on the ability of courts to make law  See notes from yesterday’s class

Strengths and weaknesses of precedent  Going to court is expensive  Consistency and fairness  Certainty in the law  Often there are several precedents that could apply, which makes it difficult to predict the outcome  Judicial errors can be corrected on appeal  Distinguishing a case can result in cases that appear to be similar being decided in different ways and this can create confusion