Outcome 3 SAC Prep 5 May 2013

Outcome 3: SAC
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
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
ii. An appeal from the Victorian
County involving a novel fact
situation is being heard by the
Victorian Supreme Court—Court
of Appeal
The Victorian Supreme Court
is hearing a case with a fact
situation similar to a case
heard in the South Australian
Supreme Court.
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
v. The High Court is hearing a
case with a fact situation
similar to a case heard three
years ago by the High Court.
Binding or persuasive?
Key terms
Stare decisis
Ratio decidendi/rationes decidendi
Obiter dictum/dicta
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:
 http://www.youtube.com/watch?v=E8MnKD5q1WE
 http://www.youtube.com/watch?v=QOfTQ6va4U0
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
 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?
Key concept: Courts create
precedents when interpreting
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
 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

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