In the complex legal system, it is critical that essential elements relevant to court decisions are well understood, including that of common law and precedents. This blog post will discuss what exactly common law and precedents are, along with their implications in court decisions in criminal law in NSW.
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Common Law
Common law refers to laws that are not written in statutes or written legislation, but are established by court decisions over time, acting as a body of unwritten laws. Common law operates on the principle that it is unfair to treat similar facts differently on separate occasions. Common law further acts a check and guidance for Courts when making decisions in order to foster consistency in the law.
These unwritten laws established by Courts are referred to as precedents, which are used to guide future court decisions for similar cases.
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Binding and Persuasive Precedents
Precedents, which are the decisions made by previous courts, can be either binding or persuasive.
Binding Precedent– A binding precedent is one that is “made by a superior court that is higher in the hierarchy of courts” and must be followed if both cases are “sufficiently similar”. One such example is decisions being made by Supreme Court being binding for the District Court and Local Court.
Persuasive Precedent– A persuasive precedent is used in such a scenario where despite a court not being above another in hierarchy but only higher in superiority, such a precedent which is established in a similar case should be given proper consideration, rather than disregarded. Such would be the case where “a precedent established by the Supreme Court of New South Wales is persuasive but not binding on the Supreme Court of Victoria, since these courts are not in the same hierarchy and are of equal authority”.
Precedent Example
Several high-profile cases have significantly influenced the development of criminal law in NSW through the establishment of legal precedents.
One example is the case of R v Loveridge (2014) NSWCCA 120 where upon appeal, the NSW Court of Criminal Appeal had established a strong precedent for cases of “one punch deaths”. Loveridge had initially been sentenced by the NSW Supreme Court to imprisonment for 7 years and 2 months with a non-parole period of 5 years and 2 months.
Upon appeal, it had been found by the NSW Court of Criminal Appeal, that the sentence failed to take into consideration the seriousness of the offence and the need for deterrence, along with other factors. The NSW Court of Criminal Appeal had increased the sentence to imprisonment for 13 years and 8 months with a non-parole period of 10 years and 2 months. This established a binding precedent on all lower ranking courts in NSW, on how to approach and sentence one punch deaths.
The impact of the R v Loveridge (2014) NSWCCA 120 case was so great that it pushed for the introduction of Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, which through section 25B of the Crimes Act 1900 (NSW), introduced an 8 year minimum non-parole period of imprisonment for such offences.
R v Loveridge (2014) NSWCCA 120 is a perfect example of when a case establishes a precedent, and how precedents can help modernise the way in which offences are tackled in the Court of Law.
What about Statute Law?
It is important to remember that common law is different to statutory law, which is legislated and codified by the government and parliament. While statutory law is explicit, and clear, common law comes from the interpretations of legal principles over time by judges.
In practice, common law fills the gaps left by statutory law, providing guidance in areas where legislation may be ambiguous. It complements written law by allowing the legal system to adapt and evolve through judicial decisions that interpret and apply statutes to specific cases.
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Remember
It is important to remember that in case where common law and statute law collide, statute law is given top priority. One such example would be that if a precedent had been previously established regarding a sentence for a certain crime, certain legal statutes such as minimum sentence laws can be introduced, overriding the previous precedents.
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Challenges of the Common Law System
Despite its strengths, the common law system and the reliance on legal precedents does establish some challenges. Critics argue that the system can be rigid and slow to adapt. Moreover, the interpretation of precedents can be complex and subjective, leading to inconsistencies in application, and lack of transparency in judicial decision making.
Conclusion
Common law and legal precedents are essential elements of criminal law in NSW. They ensure that the law is fair and equal for all, rather than just a set of rules which can be misused. Through the careful application of precedents, courts in NSW strive to deliver justice in a manner that is consistent, and fair.
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