Legal System

Bigamy Case

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Case scenario:

Ali Mohammed is married to Eileen Mohammed but wants to keep her as the wife and marry Susan Grey as his second wife without being divorced. He then marries Susan now he has two wives.

Ali Mohammed met recently divorced Australian Fantasia Means, who now he wants to make her his third wife but still married to his other wives. He now has moved to Australia with his first two wives.

The above character’s in the scenario is fiction.But the law of Bigamy is Non-Fiction ( True Law Act)

I am going to discuss the law of the Bigamy in Australia, What is Bigamy you ask?

Well, Bigamy is the act of marrying someone a second time even though you are legally married to another person.

Within the Marriage Act under Bigamy is Illegal in Australia and after recent discoveries, why hasn’t the law put in the consequences within Bigamy for these so called Frauds. Under this law the sequences in breaking this law, the punishment is Imprisonment for five years.

So with the latest rumours going on what is the law doing, these people should be punished within the law.

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Law of Evidence

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This blog is another one of my assignments while studying law; this one is about the Law of Evidence.

Introduction

  • The law of evidence concerns those rules and principles which affect the investigation into questions of fact.
  • The Court may be concerned with mental conditions and physical sensations as well as with acts or objects perceived by sight, hearing, taste or touch
  • Facts which are put to the court by parties to an action as being the basis of the disputes are referred to as facts in issue.
  • What are the facts in question will be determined by reference to the law governing the particular circumstances involved and by the reaction of parties to the various allegations.
  • The law of evidence is, therefore, concerned both with the kind of facts which may be proved and the manner of their proof.

There are four main areas of law of evidence is concerned they are:

  1. The Kind Of evidence which will be accepted by the court
  2. The amount of evidence which will be required by the court
  3. The manner in which evidence will be presented to the court
  4. The persons who may or must give evidence.

 

 

Case Scenario:

Mr Stephenson who was The Truck was apparently swerving from one side of the road to other before the fatal accident killing four people in which neither of the deceased had current valid licenses.  But Mrs Dani has observed the Kenworth truck 30 minutes before the fatal truck driving erratically. Will the Evidence of Mr Stephens earlier being convicted four years earlier of dangerous driving causing death will this be enough evidence in this case?

One of the deceased had also been convicted of dangerous driving four weeks earlier in the car, Will this also be Evidence or would it come under the rule Double Jeopardy. Also, Evidence has come in effect of Mr Danni who had been convicted ten years early of perjury in a trial that involved a fraud charge against her friend would the court take this into account for this recent case.

 

PROSECUTION EVIDENCE:

  1. 30 minutes before the crash, Mrs Danni had observed the driver of the Kenworth truck driving erratically by swerving on either side of the road and overtaking on a blind bend on a hill.

The evidence required by the prosecution has mentioned that in this case scenario is more likely to be relevant, due to the fact in the event of R v Buchanan: The accused was charged with manslaughter arising out of a collision in which a car driven by the accused was involved. The accused had admitted that he had consumed a large quantity of liquor during the day before the collision. The prosecution had tendered evidence from Mr and Mrs Lewis about 35-40 minutes before the fatal accident. The court held that the evidence given by Mr and Mrs Lewis was properly admitted as relevant to the fact in issue.

 

  1. Mr Stephenson had been convicted four years earlier of dangerous driving causing death.

 

The evidence is this case would be relevant and would be admissible in fact, even though it happened four years ago. This evidence would, in fact, be relevant to this new case due to the fact four years early which also resulted in death so overall it would be in fact be relevant and would not course a double jeopardy rule.

 

 

DEFENCE EVIDENCE:

1: The blood alcohol reading and TCH of the two deceased after the accident.

 

This evidence would be admissible, because of the alcohol reading and the use of the cannabis is relevant to this issue in hand, because of in the case of R v Stephenson, that the evidence did not establish who was the driver of the Fiat at the time of the collision, at the initial trial, the counsel for the accused sought to cross-examine a medical witness as to whether Miss Broberg’s body contained any drugs or alcohol and also to adduce evidence of the results of the blood alcohol tests conducted on the three male deceased persons. The counsel for the accused argued that the condition of all occupants should be revealed to the court because of the sobriety of the driver of the Fiat was relevant, and anyone of the four occupants may have been the driver, The trial judge disallowed this evidence and directed that the movements of the Fiat on the roadway were relevant, but unless connected in some way with those movements, the condition of the occupants was not relevant, also on appeal the court agreed with the trial judge’s refusal to allow defense counsel to lead evidence of the occupants.

 

1: Neither of the deceased occupants had a current driver’s licence.

The probability of who was driving the vehicle could have been incapable of controlling the said vehicle this evidence would be admissible. To the current case.

 

2: One of the deceased had been convicted of reckless driving four weeks earlier.

 

(Road Traffic Act 1974 -Sec 61. Sub (4) a person is convicted of an offence against this section any offence previously committed by him/her against section 59,59A, or 60 shall be taken into account and deemed to have been offence against this section (but not to the exclusion of any other previous offence against this section) in determining whether that first-mentioned offence is at first or subsequent offence).

In the Case of   R V Buchanan {1966VR.9} the accused had been charged with manslaughter arising out of a Motor accident. He was interviewed by police officers in hospital five days after the accident and admitted he had drunk a large amount of alcohol before the accident. It was held that the statement was admissible, Shall pointed out that in this case of presenting there are no suggestions in the evidence that there was a suspension of the faculty of judgement, and the mere reduction of that faculty by head injury or drink could not be held to be sufficient to render a confession or admission involuntary in the legal sense.

Yes, this Evidence of Earlier conviction would be relevant to this case, due it had happened four weeks earlier before the fatal accident, it would not be admissible but be very relevant evidence.

  1. Mr Danni had been convicted ten years earlier of Perjury in a trial that involved a Fraud charged against her friend.

 

This Evidence is irrelevant and therefore inadmissible, because it is not relevant to the current case of Motor Vehicle Accident.

 

 CONCLUSION

 

In this finding, the Relevance only occurs when an item of evidence must be relevant to a fact in issue to be admissible in a case. Some of the evidence in this current case would be exempt from being use.

 

Due to the fact it has nothing to do with Truck and car Collision, only evidence that I feel would be allowed would be the fact Mr Stephens has already been convicted of dangerous driving causing death before this recent case and that the deceased occupants maybe indeed did not know how to drive a vehicle according to one of the other drivers was convicted early of reckless driving.

Overall the Truck driver would be sentenced by the Road Traffic Act Section 59. Dangerous driving causing death.

Notes to consider:

  • previous conviction will most likely go against the accused and plaintiff
  • But what had caused the truck driver to swerve erratically?

The above may or may  not be correct, this is from a previous assignment I had studied.

The Australian Federal System of Government Precedent

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This  from another assignment that I had done whilst studying to become an Qualified Legal Secretary Course, I thought I might share with you all, this part of the assignment was about Public Mischief  and mistaken identity, my answers are based on Western Australian Law. Part 1 of the assignment started with an Actual case called R vs. Manly.

 

 The facts of the case a Lady told a police that a man ( whom she describe) had struck her with his fist and stolen money from her purse. The police investigated the matter but it turned out that nothing of the sort had happened. She was convicted on the offence of affecting a public mischief and appealed against her conviction. At the time there was no such crime on the statute books. There were a couple of old decisions that a conspiracy to effect a public mischief was an offence, but conspiracy is an agreement and the law often treats as unlawful combination of people who agree to do something even though the same act done by an individual would have been lawful. No lawyer could have advised Mrs Manly in advance that she was committing an offence.

The decision of the case that the indictment (Charge) aptly describes the two ingredients of public mischief or prejudice to the community, one of these being that the officers of the Police were led to devote their time and services to the investigation of an idle charge and the other being that of the public, or at any rate those of them who answered a certain description, were put in peril of suspicion and arrest.

The question asked us to what the ratio of R vManly was?

The ratio of this case was the Mrs Manly clearly set out to be a Public Mischief by deliberately accused an innocent person of a crime they did not commit.

 

The next part of this comes to fake case called R v May Jones

The facts of the case Mrs Jones is doing her shopping one day and she discovers her purse is missing from her bag. She remembers that a few minutes before she brushed against a man in the street, so she immediately reports that matter to the police describing the man and saying that she thinks he took her purse. The next day the store telephones her and tells her that she had left her purse on the counter. She tells the police who are very annoyed. She is subsequently charged and convicted of affecting a public mischief and fined one hundred dollars. She appeals and the case some before us.

The assignment questions ask one the basis of the Ration in R v Manly, should Mrs Jones be convicted or acquitted? Give reasons for your decisions?

 If I was a judge Mrs Jones should be acquitted of the charge because under section 24 of the Criminal Code of Western Australia has clearly stated that a Person who omits to do an act on honest and reasonable mistaken of the existence of any state of things is not criminally responsible for the acts or omission’s to any extent then is of the real state of things that he or she had believed existed. As Mrs Jones has thought that the man who brisked past her earlier she had reasonably had thought that the man had actually stolen it. So overall in my opinion Mrs Jones should not be convicted of the Offence of being a Public Mischief.

                                                     

Well part 2 of this blogs is about another case about Balfour vs. Balfour

Facts of the case Mr Balfour was a civil servant who was stationed in Ceylon earlier this century. He and his wife returned to England when Mr Balfour went on leave. While in England, Mrs Balfour became so ill that she decided to stay in England rather than return to Ceylon with her husband. Mr Balfour told Mrs Balfour that he would pay her 30 pound each month during the time they were force to live a part, Mr Balfour then returned to Ceylon without Mrs Balfour.

 

Mr Balfour made a few payments and then wrote to his wife suggesting that they remain separated. At the same time he refused to continue with the payments which they had agreed upon. Mrs Balfour was upset by this news and decided to use Mr Balfour for Breach of the agreement which they had made.

 

Decisions the English court held that Mrs Balfour could not succeed in her actions against Mr Balfour because the arrangements was not contractual but merely a domestic arrangement between parties. The court said the husband and wife had not intended that their arrangement be bound by any legal consequences if there was a default.

 

What general rule can you sat that Balfour’s case stands for?

 The general rule the Balfour case stands for is the law of contract in particular intention to create a legal relations agreement between family and domestic arrangement not contractual and not enforceable which is not legally binding.

 

In another case of Merritt v. Merritt, the English court of Appeal, consisting of three judges, made a different decision. In this case the husband, Mr M, had left his wife for another woman. Mr and Mrs M reached an agreement under which Mr M was to pay Mrs M an amount of 40 pounds each month. Mrs M was to pay off the building society loan which had been take out by way of a mortgage over the matrimonial home which they owned. The house was actually in Mr M sole name and he agreed to transfer it to Mrs M name when the mortgage payments were completed. Mrs M paid of the balance of the mortgage, Mr M reduced his payments to her from 40 pounds per month to 25 pound month and then refused to transfer the house, so she took him too court and sued him for breach of the agreement which he had made with her.

The court decision decided in Mrs M favour and distinguished Belfour’s case by saying that the Merritt’s did intend to create enforceable legal relations because they were in an amicable relationship such as that which existed between the Belfour’s when the Belfour’s made their agreement in the earlier case.

 

 What general principal can you say that Merritt’s case stand for?

 The general principal in Merritt’s case, it involved the law of Contract, as it was to create a Legal Intention, family domestic had legally separated which had made the agreement more legally binding.

CASE SCENARIO

Fact Situation Mr R was a wealthy old man who lived in a very large house in Sydney. Mr R’s sister and her husband lived in England where the husband was a university lecturer.

Mr R, who probably missed his sister’s company, persuaded her to come to Australia with her husband. Mr R promised his sister that he would provide her and her husband with a home and that he would leave his property to them both in his will if they did come out.

The sister, Mrs W, and her husband sold their home in England and Mr W resigned from his lectureship. They did these things on the basis of Mr R’s promise and came to live with Mr R in Australia. Unfortunately the parties a quarrel arose between Mr and Mrs W and Mr R with the results that Mr R then sold the house and changed his will, leaving Mr and Mrs W out of it altogether. They were left out in the cold and they also were not pleased with the breach of the agreement.

 On the basis of the two cases of Balfour and Merritt, can you say whether Mrs W and her husband are likely to be able to enforce the agreement which they made with Mr R? Give reasons.

The fact scenario involved the law of contract and in particular the intention to create a legally binding.

The intention to create the legal relation is presumed not to exist if the agreement is of social and domestic nature, but this presumption can also be rebutted if one the parties had relied upon the agreement and suffered a significant loss.

We have to assume in this case above that Mr R’s sister and husband had relied upon the promise of a home and property if they moved over to Australia to look after Mr R, which they had sold their Estate and belongings and he husband gave up his job.

Within my View of this case is supported by Wakeling v Ripley (1951), where it has similar scenario to our current case in hand. But within this case the court had held that the strong evidence to rebut the presumptions regarding the domestic agreements that the parties intend to enter a contractual and enforceable contract, because of the Plaintiff’s consequences were so serious they  had loss and because of the seriousness of the events the Plaintiff’s Mr Wipley was entitled to damages.

 

So for the above reasons by conclusions to this case scenario in hand I would advise Mrs W and her husband they are likely to rebut the presumption and to be able to enforce the agreement made by her Brother Mr R, because of their significant loss of their belongings that they would be rewarded compensation of either the house and its contents or their brother to compensate their lost in a dollar value.

PART 3 of this blog is last part comment briefly on the following words spoken by Mr Justice Murphy of the High Court”

“Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I’ve been on the bench. The doctrine is that whenever you are faced with decisions, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford, said” The doctrine is based on theory that nothing should ever be done for the first time”.

 

Within the above quotation the doctrine of precedent is where judges decide on cases coming before them, which is based upon past decisions. As Mr J. Murphy’s comment of the precedent, that he uses decisions of a past case to analyse a case that may come across in front of him, which the case may have similar facts and issues, where he can analyse a decisions to be submitted.

Difference Between Evidence,Proof, Burden, Standard , Judge & Jury in Court

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What is the difference between Proof and Evidence in a court

The difference between Proof and Evidence in a court process is that the evidence is a fact in an issue that can be established. The evidence can be presented to the court as an original document, such as “Bringing Evidence”, into a court process.

But as where proof, in a court process is where you can obtain the proof to the evidence shown in court, such as an eyewitness say you buy the item brought to court.

What is the difference between Burden of Proof and Standard Proof?

The difference between Burden of proof are where the parties must prove the existence of the fact, where it is determined to leave presumptions and admissions to one side and that the facts must be proved before a party can rely on the substantive law.

Standard of proof is the degree to which a party bearing the burden of proof must convince the jury or the court of the facts in the issue.

The actual difference is that standard of proof is the facts in the issue and as where burden of proof is where a fact did or did not occur.

Cross Examination and Examination in Chief How do they differ?

The way that cross-examination differs from examination in chief in a trial process is that cross- examination haw two main objectives as follows:

  1. They seek to establish his/her case by a means of eliciting information from either party, which is relevant to the facts, to in that can be a favour to their case.
  2. They also seek out to destroy or weaken the accuracy of either party’s witnesses in the evidence in chief.

Where the examination in Chief has only a general prohibition on asking leading questions and attacking the witnesses as the creditability to the witness does not apply.

Difference between Judge and Jury in a Trial

The essential difference between the judge and jury in a trial process is that the role of the jury is to find the fact finding that they listen to the evidence of the facts that are presented by either party to weigh up the evidence and to decided what evidence is more convincing or not. As where the role of the judge is to listen to both parties” where they cannot be impartial to either side”.  They listen to the evidence to the legal matter before them in court. But when the jury is presented within the case, the judge can address marks to the jury by giving instructions, which they refer to directions on the way, they should treat certain evidence given in a court. The judge also decides on the given sentence if the jury finds someone guilty.

 

 

What are the Difference between Literal, Golden and Mischief rule

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Before we go into the difference between the rules we will explain what they all mean first.

Literal Approach

Literal Rule is where the judges interpret the legislation that the Parliament has used. “An example of this rule is a Law to Prohibit the Sale of NumChucks, where anyone who sells the items and gives that item to someone else commits an offence”. Such as A Police officer walks pasts a shop and finds one on the window, they take down the details of the shop and subsequently prosecuted for selling the illegal Numchucks.

When it goes to court the Shopkeeper will point out that has not been sold or lent or even given, but there has not been a crime committed under the act, that it has not been intended to prohibit these numchucks from being Freeling displayed for sale and the words in the statute has caught this actual activity. Where then the court interprets literally that the statute has not caught this particular transaction. This approach has been actually used in the case of Fisher v Bell (1961)

Golden Rule

Is where the courts adopt a meaning that reflects the purpose of the legislation. This not an Exclusive purpose of the law and it is not an easy one. The in consistence often arises because of parliament amends the provisions from the act. An example of Golden Rule is in a case called Inland Revenue Commissioner’s v Hinchy ( 1960) as where the tax act stated if the taxpayer submitted inaccurate tax return the taxpayer would be penalised to the extent of” Treble the tax ought to have been paid”, overall the taxpayer said that the policy of this law was to prevent underpayment of tax.

Mischief Rule Approach

It is where a Statute assumes to pass an order to overcome some certain defects in the common law. As where the Courts must identify the defect and were they need to interpret the legislation as having an intended problem to overcome that certain problem. An example of this rule is in the case of Heydan’s Case (1584) 3 Co.Rep 7 a; 76 E.R. 637: Similar case of this approach was given in Smith v Hughes (1960) IW.L.R at 830. It deals with the Street Offences Act, where it states that the common Prostitute to loiter of solicit in a street for the Purpose of Prostitution, where a Street indicated that it was a place and not a person. The overall case was to deal with cleaning up the streets, for people to walk along the streets without being molested or solicited by prostitutes. The prostitute would be penalised and arrested and would be found guilty of the offence, if they were to be soliciting in the streets.

The Difference between the Three Rule Approaches

The difference between the above is the generally the courts are abound to take the literal rule approach to the legislation, but it is possible to do so to depart from this approach, where significant reason why they should, where they can use the Golden Approach and Mischief rile. Overall the difference is that the literal approach is the interpretation of legislation applies the general rule that a court is bound by the words within the statute, but as where the two others are concerned they are the Golden Rule approach comes in when the Judge reluctant to use this approach by using phrases of the interpretation and where the Mischief approach is where the courts use words and phrases are ambiguous or are uncertain for some other reasons, this rule come in where there is uncertainty in a case.

Resolution of Conflicts: Courts

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Introduction:

This Blog is mainly about the Small Claims Tribunals where they resolve disputes between Consumers and traders about sale, Supply or hires of goods and services. These courts deal with the amount in disputes must be less than $6,000. This is heard before a referee who is a legal practitioner. The other court that we will be discussing is the Courts of Petty Sessions. Also known as The magistrate and Summary courts in some states, it deals with criminal matters of less serious nature ( for instance petty theft or disorderly behaviour) and refers more serious offences to the Districts and Supreme courts.

Table of Jurisdiction of both Court

Courts of Petty Sessions:  Less Serious Offences, Criminal OffencesSmall Claims Tribunal: Disputes between Consumers and Traders.

Procedures of Courts of Petty Sessions:

Before anyone attends Court the accused needs to be arrested but within the Courts of petty session’s people do not need to be arrested and they are just severed with a Summons, requiring them to attend the Courts of Petty Sessions on a particular charged outlined in the summons. The accused person is accompanied by the police to the police station, before the above happens. The accused person is taken into an interview room, as where they will be questioned about the allegations. Then they are told about the nature of the matter and held in custody, while the Police attend to the evidence and paperwork details they have been done.

But where there has been a complaint has been made about a person not arrested. They are taken into custody where the summons is generally delivered to the door of the accused.

After theses process the Defendant (Accused) is called to appear in Court, where the accused person pleads guilty or not guilty to the imposed allegations they have been charged with.

Then the Magistrate will sum up all the evidence, facts and then delivers a verdict. Which might not happen in later date? The Magistrate’s details and penalties are final.

Cost with Court of Petty Sessions:

The following information is some costs that may arise with the courts of petty sessions:

  • When a complaint comes in $44.00 per complaint
  • Every Summons sent $7.00
  • Every Order and Convictions given $14.00
  • Copy of orders or any statements $7.50
  • Copy of all records $11.50
  • Every Summons Sent to a Witness $87.00
  • Services of Summons and orders $17.25

These costs are based on an estimate from an assignment.

Small Claims Tribunal

Before the claims goes to the Small Claims Tribunal, usually a consumer will complain about the services or goods they have received from the trader. But if they cannot be satisfied they can obtain another approach, which is to seek assistance of the Department of Consumer Protection. If failing satisfaction at this stage, a claim can be made or lodged with the Small Claims Tribunal, which can resolve a claim less than $6,000. Once above is done the registrar will arrange a time and place for the hearing, where they will be advised.  Normally you would attend the hearing yourself and conduct your own case. The proceedings before tribunal will usually involve three Referees, you and the trader or if the trader is a company, its representatives. The referee’s, decisions will be binding and final within all concerned.

Costs Associated with Small Claims Tribunals:

  • The cost per claims is $27.00

Remedies of Both Courts

Courts of Petty Sessions

If found Guilty:

  • Sentence of fine or community services
  • Pay fine, and other parties held of the victim’s injury or damage
  • Make an order that requires party to proceedings before it other then claimant to pay to a person specified in the order.
  • An order that requires a party to the proceedings other than the claimant before it to perform work to rectify a defect in goods and services to which a claim in the proceedings relates.
  • In case where a consumer is claiming from relief of payment money( A): an order that money in an amount specified is not due or owing by the claimant, to a person specified in the order,(B) A requires the Claimant to pay money to a person specified in the order.
  • An order dismissing the claims to which proceedings relates.

Small Claims Tribunals

  • Make an order that requires party to proceedings before it other then claimant to pay to a person specified in the order.
  • An order that requires a party to the proceedings other than the claimant before it to perform work to rectify a defect in goods and services to which a claim in the proceedings relates.
  • In case where a consumer is claiming from relief of payment money( A): an order that money in an amount specified is not due or owing by the claimant, to a person specified in the order,(B) A requires the Claimant to pay money to a person specified in the order.
  • An order dismissing the claims to which proceedings relates.


Law of Torts

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Where the word “Tort” Originate from and what does it mean?

The word Tort comes from a Latin word “Tortus” Which means a Wrong or crooked. In a few words a Tort is a Civil Wrong, which can lead to defendants paying out compensation to the plaintiff.

This will be granted if the plaintiff suffered as a result of an act or omission to them. A Tort is a result of a Breach of Duty which is imposed by law. Some of the torts can be actually laid done by the legislation itself.

What is the difference between Crime and Tort?

A Crime is a Breach of duty, which is imposed by the common law and states and it is also considered to be a “Community Wrong” which entitles to a punishment for the crime.

A tort is concerned with compensating the person injured or damaged by a wrongful act or omission.

But some of the torts can be found as both a crime and a tort.

Trespass

The Tort we are mainly going to explain a little about is the Intentional Torts to the Person: trespass.

The Intentional trespass is the tort that protects both personal security and property.

This Tort of Trespass is the intentional or negligent act of the defendant which actually interferes with the rights of the plaintiff without lawful consent.

With everyday law of trespass shares the similar elements off:

  1. Intentional or Negligent Conduct;
  2. Direct Interference; and
  3. Absence of lawful justification.

Trespass to the person is to do with three main areas:

  1. Battery
  2. Assault;
  3. False Imprisonment

What is Battery to the Person?

Battery to the person is intentional or negligent of the defendant that causes the Plaintiff physical interference with the body without their consent.

What is Assault?

Assault is the deliberate act or threat to D which directly places P in reasonable apprehension of a physical interference with his or her person without consent.

What is False Imprisonment?

False Imprisonment is where someone is kept or omitted to an act to  totally restrain on the liberty of the plaintiff and thereby confines him or herself to a delimited area without his her consent.

Note: Please note this to help people to understand a bit more of the legal Jargon, but if you are in need for help in this matter please see a Solicitor.