LAW10010 Lecture Notes - Lecture 3: Miscarriage, Determinative, Terra Nullius
Topic 2: Judicial Decision Making
• When a dispute between two or more parties comes before it, a court or tribunal must
establish what happened, settle upon the applicable law, and then apply the law to the
facts to determine which party should succeed.
• In jury trials, the judge identifies the legal issues and instructs the jury as to the
applicable law; the jury then finds the facts, applies the law to the facts and gives its
verdict.
• In hearings without a jury, the judge, magistrate or tribunal member is responsible for
both fact and law.
Introduction
• Oe of the tial outs ajo tasks is usuall the deteiatio of ateial fats.
• Litigation generally concerns past events, and the tribunal of fact, whether it is the trial
judge or the jury, will rarely be provided with conclusive evidence.
• To some extent fact-finding is governed by the rules of evidence and procedure.
• For example, conviction of accused where proof is found to be beyond reasonable
doubt: Darken v Queen (20076) 227 CLR 373.
Obstacles to fact-finding
• Briginshaw v Briginshaw (1938) 60 CLR 336, 361: In civil matters, the plaintiff need only
estalish a ase o the alae of poailities, hih is ofte itepeted as oe
poale tha ot o as a probability of greater than 50 per cent.
• Many other rules of evidence govern whether certain types of evidence should be
admitted or excluded, and how the fact-finder is permitted to use them.
• Eg. witnesses should generally only give evidence of what they themselves have
itessed; thei testio should ot otai heasa: Walton v The Queen (1989) 166
CLR 283. Except for experts, evidence should relate to observations, rather than
opinions.
• Trend for exclusionary rules to narrow, and for exceptions to such rules to grow.
• Appellate courts have less of a role in fact-finding than trial courts; appeals are generally
limited to matters of law.
Obstacles to fact-finding (continued)
• A party that loses a case may have grounds for appeal.
• Generally appeal courts have greater scope for overturning judgments on matters of
law, rather than fact.
• Criminal Appeal Act 1912 (NSW) s 6: A criminal appellate court should overturn a
oitio hee it osides that a ju, atig easoal … ust hae etetaied a
easoale dout as to the guilt of the aused.
• The fact that a trial judge may have made an error of law in a criminal trial does not
eessail ea that the appellat ill sueed as the Cout a appl the poiso
that, notwithstanding the error, there has been no miscarriage of justice.
• Rights of appeal are asymmetric and favour the accused such that the prosecution can
only appeal on limited grounds.
Appeals
• Unlike criminal trials, civil trials generally are a rehearing – juries are rare.
• Usually the appellate court confines itself to the transcript of the trial evidence.
• Great respect is accorded to the findings of fact at first instance.
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• In both civil and criminal matters, the appellate court will often order a retrial where the
facts have been successfully challenged on the basis that the appellate court is not in a
position to make findings of fact.
• In some circumstances final orders will be issued.
• Decisions on questions of fact generally do not constitute precedents for later
interpreters, whereas decisions on questions of law do.
• In jury trials questions of fact are in general reserved for the jurors, whereas questions
of law are exclusively for the judge to answer.
• Decisions on questions of law are generally required to be supported by public
justifications, whereas there is no such general requirement for determinations of fact.
• In the case of appeals against findings of criminal liability, both the grounds of appeal
and the conditions under which an appeal may be allowed tend to be more favourable
to the convicted person where the appeal involves a question of law than where it
involves a question of fact alone or a question of mixed fact and law.
• Appeal courts will not reverse a finding of fact unless the finding reached by the lower
court was not sustainable by the evidence presented to it, or was so unreasonable as to
suggest that it did not really undestad hat the ules euieets ae.
• In administrative law, only questions of law can be reviewed.
Distinction between matters of fact and law
Several propositions were given in Collector of Customs v Pozzolanic (1993) 43 FCR 280, 289
in relation to the division between questions fact and law in statutes:
> The question whether a word or phrase in a statute is to be given its ordinary
meaning or some technical or other meaning is a question of law.
> The ordinary meaning of a word or its non-legal technical meaning is a
question of fact.
> The meaning of a technical legal term is a question of law.
> The effect or construction of a term whose meaning or interpretation is
established is a question of law.
> The question whether facts fully found fall within the provision of a statutory
enactment properly construed is generally a question of law, except where
ordinary meaning of words
These propositions were given qualified support by the High Court in Collector of Customs v
Afga-Gevaert Ltd (1996) 186 CLR 389.
• A first instance judge is bound by a decision on a question of law by a superior court
in same hierarchy.
• The lower the court in the hierarchy, the less discretion it will have as to what law
should be applied.
• Expanding body of legislation presents trial courts ith ases of fist ipessio
• Where no applicable binding precedent, the trial court may turn to persuasive
precedents in other jurisdictions.
• What happens where there is no applicable authority?
• Previously judges applied the declaratory theory, ie that the ee disoeig ad
delaig la that alead eisted.
• Today it is recognised that judges make law in novel cases, though applying a rule
that coheres with existing principle.
How does a trial judge identify the binding legal rule?
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Document Summary
In jury trials, the judge identifies the legal issues and instructs the jury as to the applicable law; the jury then finds the facts, applies the law to the facts and gives its verdict. In hearings without a jury, the judge, magistrate or tribunal member is responsible for both fact and law. In both civil and criminal matters, the appellate court will often order a retrial where the facts have been successfully challenged on the basis that the appellate court is not in a position to make findings of fact. In some circumstances final orders will be issued: decisions on questions of fact generally do not constitute precedents for later interpreters, whereas decisions on questions of law do. In administrative law, only questions of law can be reviewed. Several propositions were given in collector of customs v pozzolanic (1993) 43 fcr 280, 289 in relation to the division between questions fact and law in statutes:
