LW113 Topic 2 18 - TIWARI PDF

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Topic

2

Judge Made Law How to Read a Case

Topic 2 Concept Map This map represents the core concepts we will be covering in this topic and the relationships between them. LW113: Courts & Dispute Resolution II

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To p ic O v e r v i e w In the previous topic you were introduced to an overview of the judicial decision making process or how judges make law through the decisions they make in each case that comes before them. There are a number of essential components to this decision making process. These components will form the contents of the remainder of this course.

Study Time

10 hours

However, examining this process will involve detailed analysis of decided cases in order to demonstrate how the process works in practice. Therefore, before we go any further, we need to be sure that you understand how to read a case properly. This way you can participate effectively in the process. You will see legal cases referred to as judicial decisions, judicial determinations, court judgments, legal judgments and court decisions but they all mean the same thing. For our purposes, we will simply refer to them as ‘cases’. In this topic we will break down the various components of a case and show you how to read a case and understand a judge’s reasoning. Reading and analysing cases will be an essential skill for you to master as a law student and will be an even more important part of your role as a practising lawyer. Finally, we will not be covering citation of cases or referencing in this topic, as you will already have studied this in Courts & Dispute Resolution I. If you can’t remember this information, now would be a good time to review those materials.

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To p ic O u t l in e 1. Introduction 2. Case name and other information 3. Keywords 4. Head notes 5. Decision 6. Reasons for decision 7. Case summaries 8. Citing cases

Learning Outcomes By the time you have completed this topic you should be able to:  Explain the information that identifies a case;  Identify the difference between a reported and an unreported case;  Outline the different types of court decisions and the components that make up the decision;  Identify the different parts of the reasons for a decision;  Explain the difference between statements of fact and law;  Describe the various types of case summaries; and  Illustrate these principles using some of the cases extracted in the materials.

C h e c k li s t o f A c ti v i ti e s To complete this topic you must: 1. 2. 3. 4.

Read the online lecture notes; Read the cases and materials in the Readings List for this topic; Complete the five (5) study tasks; Complete the review questions at the end of the topic; and 5. Complete the additional readings as follows:  Cook, Crake, Geddes and Hamer, Laying Down the Law (2005) p62-73; Ch 17; and  James A. Holland & Julian S. Webb, Learning Legal Rules (5th ed, 2003) p68-76.

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In t r o d u c t io n In order to be able to read and understand a court’s judgment it is important to be familiar with the structure and contents of the judgment or case. You should also be aware of the different types of cases. These are unreported or unpublished cases, reported or published cases and case summaries or briefs of judgments. An unreported judgment is the judgment of a court exactly as it is spoken (in the case of oral judgments) or written (in the case of written judgments) and as it will appear in the court records. A reported judgment is the judgment as it has been published by a publishing firm for reading by judges, lawyers and other interested people. Frequently, the judgments are edited in some way before being published. A summary or brief of a judgment is the summary or précis of a judgment which has been created by someone wishing to record the aspects of the judgment relevant to his or her interests. Figure 1 may help you to clarify the structure of a case and the terminology we will use throughout this topic.

Figure 1: Components of a case

Case [Judicial Decision]

Editorial & Identifying Information

Judgement

Decision [Adjudication] Names parties & lawyers & court dates etc

Citation

Keywords

Reasons for Decision [Judgement]

Headnotes Finding or final decision on claim/change/ appeal

Background or proceedings

Remedy or penalty

Statement of fact

Orders on appeal

Statement of law

Application of law to facts

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2 . C a s e n a me a n d o t h e r in f o r m a t io n As you will recall, a judge must make a decision in relation to a civil claim, a criminal charge, or an appeal, that has been brought before the court by the contesting parties. Accordingly, when a judicial decision is expressed in writing it always contains the names of the parties to the proceedings and other details which identify it and enable it to be connected to the other documents already filed in the court office or registry. Each case will contain the:  name of the court;  name of the judge or magistrate;  name of the registry or court;  names of the parties to the proceedings;  number given by court staff to the proceedings;  date/s of hearing;  date of judgment; and  name of the legal counsel (if any) representing the parties. These details are usually included in all written unreported judgments and also when judgments are reported in law reports, although not necessarily in the same order as in the case of unreported judgments.They are important to ensure the papers are filed correctly in the court office and that the case is linked to the correct proceedings.

STUDY TASK 1 Find the listed cases in the Readings List and briefly read each case. Sasango v Beliga; In the Matter of the Constitution of the Republic of Vanuatu; Kishori Lal v R; and Beti v Aufiu.

When you have done this, try to answer the following questions. 1. Which of these four cases are reported or published cases? 2. How can you tell? 3. Can you list the name of the court; the name of the judge or magistrate; the name of the registry or court in Beti’s case?

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4. Try to identify the names of the parties to the proceedings; the number given by staff of the court office to the proceedings; the date of hearing; the date of judgment; and the name of the legal counsel in the case of the Constitution of Vanuatu. 5. Can you list the name of the court; the name of the judge or magistrate; the name of the registry or court in Sasango’s case? 6. Try to identify the names of the parties to the proceedings; the number given by staff of the court office to the proceedings; the date of hearing; the date of judgment; and the name of the legal counsel in the case of Kishori Lal v R. Check Feedback 1 when you have completed this question

3. Keywords or catchwords If a case is reported or published the publishers will usually insert after the headings and before the text of the decision, a few brief words to indicate the main points of legal interest in the decision. These are called keywords or catchwords. This is to enable lawyers, judges and others to quickly see whether the decision contains any information on a particular matter, without having to read the entire case. Keywords or catchwords are created by the publishers and are NOT an integral part of the judgment, nor do they have any official status or standing. They are intended as a guide for people wanting to find the main points in a decision.

4. Headnotes A publisher also usually includes headnotes in the published version of a case. Headnotes are inserted after the keywords and before the text of the decision. They consist of a short summary of the facts and the main statements of law in the decision. Sometimes they also include a summary of the main judicial decisions and statutory provisions referred to in the decision. The purpose of the headnotes is to enable lawyers and judges and law students to see whether the decision is of interest to them, without having to read the whole decision. These summaries are, in effect, more detailed catchwords and give a more comprehensive outline of the main points in the decision. Once again, headnotes are solely the creation of the law report publishers. They are not an integral part of the judicial decision, and they do NOT have any official status or standing. It is important to realise that both catchwords and headnotes are only indications of what the publishers consider to be important parts in a judicial decision. They do NOT necessarily include all the matters mentioned in a judicial decision. For instance, in the headnote of Sasango v Beliga mention is made of issues arising in LW113: Courts & Dispute Resolution II

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relation to the claim by the plaintiff for custody of the children, but nothing is said of the plaintiff's claim for the return of property or for the non-molestation order. As headnotes and catchwords cannot be relied upon completely to capture all the issues in a case, it always pays to read the case fully if it is likely to contain important information relevant to your research.

STUDY TASK 2 Now, refer back to the previous cases and try to answer the following questions. 1. Which of the cases have keywords? 2. What are the keywords for each case? 3. Identify which of the cases have headnotes. 4. Why don’t the other cases have headnotes? Check Feedback 2 when you have completed this question

5 . T h e d e c i s io n The essential part of a judicial decision or judgment relates to the determination or disposal of the civil claim or criminal charge before the court. This part of the judgment is referred to as the decision or adjudication or disposal of the claim or charge. For convenience, we will refer to it here as the ‘decision’. The report of the case as a whole will be referred to as the ‘judgment’. The decision usually appears at the end of the judgment, in the last few paragraphs. A. Decision at first instance When the decision is made at first instance (this means in the court where the proceedings were first filed) in both civil and criminal proceedings, it usually consists of two parts: 1. a finding as to whether the civil claim or criminal charge is upheld; and 2. remedy or punishment.

i. Civil proceedings Sometimes in civil proceedings a number of claims will be made by the plaintiff, and also by the defendant. In such a case, there will be a disposition by the court of each of those claims. This is usually done by treating each claim

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individually and making a formal decision upon each. Sometimes the court will also repeat the decision on all the claims at the end of the judgment. ii. Criminal Proceedings In criminal proceedings, at first instance, the decision takes the form of a finding upholding or dismissing the charge and convicting or acquiting the defendant. If there is a conviction, the court will make a pronouncement regarding the sentence or penalty. This is sometimes postponed to allow evidence to be given as to the defendant's character and circumstances. B. Decisions on appea l When a decision is made on an appeal from the decision of a lower court, the decision usually contains two parts: 1. a statement as to whether or not the appeal is upheld; and if it is, 2. an order reversing the decision appealed from, and another order either substituting a different decision or referring the case back (technically termed remitting the case) to the lower court to make another decision in the light of the comments by the appeal court.

STUDY TASK 3 Refer back to the previous cases and try to answer the following questions. 1. What was the decision in Beti’s case? Where is it to be found in the judgment? 2. What was the decision/s in the case of the Constitution of Vanuatu? Where are they to be found in the judgment? 3. How many claims were made in Sasango’s case? What were they? How did the court deal with these? 4. Was Kishori Lal v R a decision at first instance or a decision on appeal? What sort of matter was it? What was the Court’s final decision?

Check Feedback 3 when you have completed this question

6 . R e a s o n s f o r t h e d e c i s io n A. Overview There is no common law requirement that a court must give reasons for its decision. Nor is there any constitutional or statutory requirement to do so but, in practice, courts usually do give reasons for their decisions. This is partly to

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satisfy the court itself that the decision it has made is correct, and partly to satisfy the parties and their lawyers, that the decision is correct. In fact, the reasons given for a decision are often of more interest to other lawyers, judges and parties involved in other proceedings, because they indicate the court’s opinions about the law. The reasons for the decision are usually the major part of the report of a case. The reasons for the decision are, not however, usually recorded in the official court record of the proceedings. They are recorded in writing and placed in the court file of documents. The reasons for the decision, together with the decision itself or adjudication, are often referred to as the judgment of the court. However, as the term ‘judgment’ can also used to refer to the adjudication or decision alone, you need to watch carefully as to the way the term ‘judgment’ is used. For our purposes, we will use the phrase reasons for the decision to ensure that there is no misunderstanding about which part of the decision we are referring to. The reasons for decision usually consist of four classes of statements by the court as dicussed below. B. Procedural background A judge will normally start his or her reasons for the decision by describing how the case came before the court and the issues it has been asked to decide. At first instance this means the civil claim or criminal charge before the court. In proceedings by appeal, the appellate court will normally commence its reasons for the decision by describing the decision in the lower court that is appealed from, and the grounds upon which the appeal is brought. C. Statements of fact These are statements by the judge setting out his or her opinion about what actually happened. They are based upon the evidence that has been given by, or on behalf of, the parties, but are not a mere repetition of the evidence of the witnesses. They are statements describing the facts taken from the evidence that the court considers to be relevant and significant to its decision. If there is uncertainty or conflict in the evidence, the court specifies which version of the events it prefers. Usually the statements of the fact appear early in the reasons for the decision and before the court considers matters of law. The statements of fact form the basis or foundation for the statements of law and the application of that law to those facts. In proceedings by way of appeal from a decision of a lower court, the statements of relevant facts will also describe what occurred in the lower court and what is contained in its decision so far as it is relevant to the appeal.

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STUDY TASK 4 Refer back to the previous cases and try to answer the following questions. 1. Where is the statement in relation to the procedural background in Sasango’s case? What does it say? 2. Where is the statement in relation to the procedural background in Kishori Lal’s case? What does it say? 3. Where is the statement of facts in Beti’s case? What does it say? 4. Where is the statement of facts in the Vanuatu Constitution case? What does it say? Check Feedback 4 when you have completed this question

D. Statements of law i. Overview

In almost all reasons for the decision in civil and criminal proceedings, whether at first instance or on appeal, there are statements that describe the law. These are the parts of the decision of most interest to lawyers, judges and law students as they indicate what the court considers the law to be. Often, the statements of law are quite explicit and refer to some previous decision or statute that is considered to support the statement of law. Sometimes the words of a previous decision or statute will be quoted and adopted with little or no additional statement by the court. Example You will see such statements in the second and third paragraphs of the reports of In the Matter of the Constitution of the Republic of Vanuatu and in Sasango v Beliga. ii. No authority quoted

Sometimes, however, a court may make a statement of law without acknowledging the authority for that statement. This is especially likely where the rule of law is a well known one. Example In Sasango v Beliga, in the last paragraph, the Court states that it is rarely appropriate to make a non-molestation order for an indefinite period, but

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indicates no previous decision or statutory provision as authority for this statement. iii. Multiple statements on the same issue of law

Sometimes a court may make several statements of law relating to the same issue and leading up to the same decision which are expressed in slightly different terms. It is then difficult to know which statement accurately represents the court’s opinion on the law. iv. Statements of law mixed with statement of fact

Sometimes also, especially when the court is dealing with a well known rule of law, it may not make a separate statement describing the law. Instead it may simply incorporate a statement of law in a statement that applies the law to the facts. Example In Sasango v Beliga the Magistrates' Court did not expressly state that it is unlawful for a person to detain articles that do not belong to that person, without the permission of the owner. However, this is implicit from its statement that ‘the defendant is wrongly detaining the chattels and must return them.’ v. Statements of law wider than necessary

Occasionally a court making a statement of law may express terms that are wider than the issues raised by the civil claim or criminal charge, or appeal and wider than is necessary for the decision it makes. To the extent that it goes beyond what is necessary for the decision, the statement of law is not strictly relevant to the decision. There is also the danger that if such a statement is expressed more widely than necessary, it may not have been as thoroughly considered and could be incorrect. Example An example of a statement of law made by a court which was much wider than was necessary to support its decision and was, in fact, clearly incorrect, to the extent that it went beyond the issue to be decided, is contained in In the Matter of the Constitution of the Republic of Vanuatu. In that case the Supreme Court of Vanuatu was required to determine whether the President had legal power to dissolve Parliament on his own initiative without the advice of Ministers. The power of the President to dissolve Parliament was provided in Article 26 of the Constitution of Vanuatu and clearly provided no power for the President to dissolve Parliament on his own initiative, without the advice of the Council of Ministers. However, the Court decided to make a comprehensive statement of the powers possessed by the President. The Court stated that the only powers possessed by the President, apart from the power to dissolve Parliament on the advice of LW113: Courts & Dispute Resolution II

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Ministers under Article 26 of the Constitution, were a power to submit a bill to the Su...