Video 10: Reading Cases Effectively

[Music] we thought that we would never see a suit to compensate a tree a suit who's claiming tort is pressed upon a mangled trees behest a tree who's battered trunk was pressed against a Chevy's crumpled crest a tree that faces each new day with bark and limb in disarray a tree that may forever bear a lasting need for tender care flora lovers though we three we must uphold the courts decree affirmed that believe it or not was the entire judgment in Fisher and Lowe a case decided in the Michigan appeals court in the United States of America in 1983 well though there was a footnote with a little bit of legal detail unfortunately most of the cases you will read during your time as a law student and as a lawyer will be neither so brief nor so entertaining miss Fisher and Lowe unfortunately that means you're going to need to learn how to read case reports effectively g'day everyone Anthony Merrick here and this is the third and final video for module three of our introduction to law this is another one of those videos that's firmly focused on developing skills remember how in module two we looked at how to effectively read legislation remember being surprised how much there was in a piece of legislation that you might otherwise both looked where we're going to try to do the same sort of thing here only with case level like legislation case law fires a pretty clear pattern and so our focus will be on learning those patterns so you can start to read not only deeply but efficiently efficiency is that by word when it comes to reading case law one of the things that we academics seek constantly in first-year students is a tendency to spend far too much time reading cases at the expense of other more productive types of study so wrapping your head around these skills will make a massive difference now we're going to assume that V already you've already found your case because we went through that process in video 2 of this module for this video we're going to follow a single example a famous case in the High Court of Australia from 1997 called green and the Queen this was the case that established what's called the gay panic defense or the homosexual panic defense where a person might actually have a defense reducing murder to manslaughter if they panicked in fear and shock after being propositioned by a gay person this was an intensely controversial case at the time and now in most states I believe in fact in all states Parliament's have responded to specifically remove the gay panic defense we go to look at two versions of this case we will look at the version reporting on Asli and we'll also look at the version reported in the commonwealth war reports which you'll be able to find either in a database like Westlaw or on the shelves of a law library the first thing you need to look at when you open a new case is which court made the decision now on Asli that's often self-evident because Ostler uses those medium neutral citations however for the written reports it's crucial to check the reports some report series including the Commonwealth Law reports contain judgments from a number of courts so if you look back earlier than the 1980s you'll find old Privy Council cases in the Commonwealth law reports as well as high court cases so the first thing to do is identify the court on Asli the court is the first thing we see after the citations High Court of Australia on the written report pretty much the same up the top here it says High Court and then over in the left marginal light here you can see HC of a which of course is an abbreviation for High Court of Australia now we already know that most of the cases in the higher courts and certainly in the courts of Appeal in the High Court well they don't start there they usually appeal cases so the next thing we want to know is where this case was appealed from on Asli we have to go hunting just a little bit but here it is on appeal from the Supreme Court of New South Wales and here on the written report the same information is right up front now that means that if we wanted to we could search the databases and find that Supreme Court decision and so we could really follow the history of this matter so now we know what court we're dealing with and where it was appealed from that also tells us of course that we're dealing with New South Wales criminal law which may in some ways be different to Queensland criminal law that'll be something for us to bear in mind later next we should look and see who the parties are now the report will not only tell us the name of the party but also their role in proceedings so in this case we see right up front on Asli Malcolm Thomas green appellant so we know the name of the party and we know that as the appellant he's the one who has brought this matter to the High Court because this is a criminal proceeding the other party is always going to be the Queen in the reported case we see the defendants surname first up but a little more digging around is required to get his full name we can see it down here now this is a fairly simple one but it's not that unusual to find case names where a party might be company or government agency you'll also come across a few Latin abbreviations in the party names in particular there are three that I want you to know the first ex parte means that the matter was dealt with by the court even though only one of the parties was present this sometimes happens for instance if the other party can't be found or if they refuse to come to court the second read which you will sometimes see written as INRI may in the matter of this is often used when the court is considering an application by a party where there's not necessarily another side a third one to know ex rel stands for ex relatio knee this is used to indicate that one party is bringing an action on behalf of someone else now this often happens when due to the specific nature of the application or the statute it's necessary for the Attorney General to actually bring the action even though the cause of action is actually for the benefit of some private citizen or company there are certain types of action that are reserved to only the attorney general can bring them along with the parties we can see the names of the barristers and solicitors who represented that party on Asli it's right here under representation there's a pattern to this representation the first name mentioned followed by SC or QC is the senior counsel or queen's counsel who argued the case now you really only see them in the higher appeal courts and they usually appear in those matters with a junior barrister to assist them so the junior barristers are listed next malobi for the appellant and Blackmore for the respondent now as you'll learn in the fourth module barristers are almost always instructed by a firm of solicitors who do almost all the legwork preparing for the case in this case we can see honestly that the appellant solicitor was the legal aid Commission and the respondents solicitor was the Directorate of Public Prosecutions now all the same material is also in the printed report but it's a little more difficult to find if we look at the second page here you can see that report includes a brief summary of the case and then an outline of the arguments that were made by each side sometimes including key questions that were asked by the judges at the start of the appellant case we can see the names of the two barristers and at the start of the respondents case we can see the names of the two respondent barristers now for some strange customary reason that that I don't particularly understand in printed cases the the name of the firm of solicitors is printed at the very end okay so now we know the court we know the jurisdiction we know the parties and we know that representatives the next thing we need to do is find out the final result now that might seem like we're jumping the gun a little it might seem like reading the end of the murder mystery before the beginning trust me though the reasons will become clear on Asli the outcome is right up front the appeal was allowed which means the appeal was successful and the court has ordered that the conviction should be quashed or set aside and a new trial should be held in a printed report the order is listed at the very end so now we know the outcome the next thing to do is to look at the whole court and see how the outcome came about you see sometimes all seven judges on the high court will sit on a matter and sometimes they'll all join to make one unanimous judgment sometimes they might arrive at the same conclusion but they might get there by slightly different reasoning or one or more of them may want to write their own judgement and sometimes one or more of the judges might disagree with the opinion of the majority and they might write what's called a judgement in dissent so we need to go through now and work out how many judgments there are and whether any of them are in dissent now on Asli right up the top here we can see the judges who sat on the case chief justice brennan justices to e McHugh Gummo and Kirby so there were five sitting for this particular case scrolling down to the start of the judgments we can see the Chief Justice Brennan has written judgment of his own and if we scroll to the end of his judgment we can see that he says the appeal must be allowed and a new trial ordered immediately after that we can see that justice two years written a solo judgment and justice - he has also said the appeal must be allowed and a new trial ordered next justice McHugh has written his own judgement scrolling down we find that he too said the appeal must be allowed at a new trial ordered so that's three out of three agreeing with the appeal the next one is justice Gummo riding on his own so now we know this is one of those cases where everyone has written their own judgement we scroll down justice Kumar's decision and we find that he is in descent he says the appeal should be dismissed finally we have justice Kirby who's known as the great dissenter and who has also written in dissent so now we know this was a bench constituted by five judges and it was a three to split three judge has allowed the appeal and two judges would have dismissed the appeal why is this important will the precedent established by a case will only ever be established from one of the majority judgments there is such a thing as a persuasive dissent and it might be that in the fullness of history later courts might decide that the dissenting judgment was powerful enough that it should be adopted but generally speaking the majority judgments are where we must go to find the law problem is in this case there are three majority judges well here's where you get to be a real law student and read your eyeballs off because there's no shortcut here you have to become familiar with all three how do we go about this well fortunately there are some tricks I can teach you the first thing to do is look at what's called the not there's a headnotes in both the Asli and the reported version of the case the head note tells us in the briefest possible form what the different issues discussed in the case were so it's criminal law a murder case defensive provocation has been used now you don't know at this moment you don't need to but the defensive provocation includes what's called an objective test where we ask what an ordinary person in the position of the accused would do says here in this case you're an ordinary person be assumed to be someone with a family history of sexual abuse should the jury be told that this family history might affect the way the defendant reacted when the victim propositioned him doesn't matter that the victim was gay there's the whole case wrapped up in those few lines if that's not enough for you the reported version of the case also includes a summary of the case written in normal prose so now we know what the story's going to be and how it's going to be decided that ought to make things much easier when we read each judgement never be tempted just to read the head notice it is necessary to then go and read each judgment I'm going to walk you through the judgment of justice McHugh now once I've done that I would suggest that as a learning exercise you also go through the judgments of the other majority just judges Chief Justice Brennan and justice to make sure you also read justice Kirby's dissent though because it's so beautifully written and because it sets out the rationale which later caused the various parliaments to do away with this gay panic defense now to justice McHugh judges tend to follow a bit of a pattern when it comes to their judgments if you start by looking for the elements of that pattern then you'll find the case is making a lot more sense very quickly much more so than if you just try to read them like a novel bear in mind that not all judges do things in the same order so you might need to hunt around but all of these elements will be usually be in there the first thing to look for is their outline of the facts this is sometimes very brief and sometimes very long indeed depending on how complicated the facts are and depending on whether the facts were really the source of dispute in the case in this case justice McHugh summarizes the general facts of the case and then he really zeros in on the facts and the evidence which are most important to his judgment it's always important to thoroughly read those facts because even though the court is establishing new laws or interpretation they do this on the basis of the very specific facts before the court and so in this case we learned that the accused and the deceased were friends that the accused was staying the night at the home of the deceased and that they were to be sleeping in separate bedrooms we learned that the deceased came into the bedroom where the accused was in bed and crawled into bed with him and began in essence an attempt to seduce him he reacted by saying no and then when things went further he reacted violently the violence peaked when he got hold of a nearby pair of scissors and began stabbing the deceased with the scissors the defendant claims that from the moment he commenced his violent reaction the picture in his mind was not the picture of the deceased trying to seduce him but rather the picture of his own father standing over and sexually abusing his two sisters he says that he then has essentially lost his cool and this resulted in the death of the deceased so those are the facts the second thing to look for is the actual rule involved in this case the relevant rule was section 23 of the New South Wales Crimes Act justice McHugh has very conveniently reproduced the contents of section right here in his judgment have a read of that section in essence we can reduce that section to say first if someone kills someone else but they're provoked into doing it well then it may be that they should be convicted of manslaughter rather than murder and that will result in a much shorter sentence to work out whether they were sufficiently provoked we asked two questions first did the conduct of the deceased results in the loss of the defendants self control and second could an ordinary person in the position of the defendant also have lost self control to the point of killing these are what we call subjective and objective tests the subjective test says what did the defendant actually do an objective test says what a reasonable person have done okay so now we've got a sense of the relevant law you don't need to suddenly become an expert on homicide but you may have a sense of the relevant law the next thing the court will do in an appeal case like this is to look at the procedural history of the matter remember that matters like this don't start in the High Court so it makes sense for the judge to go through those lower court decisions and so what's actually being appealed in this case so first justice makuu talks about what happened in the original trial now appeal court judges are often very respectful of what those first instant judges rule because the first instance judge has one massive advantage that none of the appeal judges get they get the chance to actually see the witnesses and the defendant in their court giving their evidence all the appeal courts get is a transcript of that evidence now that seems a bit dumb to me and perhaps one day these things will be video recorded and the recordings made available to the appeal court but at present that doesn't happen in any event justice McHugh concentrates on the matter which was appealed that is the first instance judges summing up of the case for the jury you can read the judgment see exactly what the first incidence judge said but in essence the judge made two points to the jury first the issue of provocation had been raised and so it was for the prosecution to prove to the jury beyond reasonable doubt that the murder had not happened as a result of the defendant losing self-control at the conduct of the deceased in trying to seduce him and second that when the jury was considering whether an ordinary person in the position of the defendant would have reacted so violently they must not consider his family history of sexual abuse again don't worry so much about the law but you can see injustice McHugh's judgment there that he has outlined that those are the two things from the first instance judge that was being appealed next justice McHugh looks at what happened in the Court of Appeal he identifies that there were six grounds of Appeal raised before the Court of Appeal and he goes through what happened in relation to each of them he then considers which of those are relevant to the current appeal and this is where we get to the real nitty-gritty of the case before we look at that nitty-gritty though I want to introduce you to two Latin terms ratio decidendi and obiter dictum the ratio decidendi your rationale for the decision is the actual basis for the court decision in a decision of 40 or 50 pages length the ratio decidendi which is often just called the ratio might be just a sentence or a paragraph it's the absolute heart the fundamental basis of the reasoning before the court now orbiter dictum or things said in passing is everything in the judgment which is not part of the ratio decidendi obiter dictum is often just called a bra why does this matter well the only part of the judgment which is actually binding on the lower courts is the ratio decidendi so finding the ratio in a case is a massive skill we're going to do that right now let's get back to green in the Queen injustice MacUser pinion this whole appeal comes down to two key points first he looks at what were the second and third grounds of appeal before the court of appeal in essence the judge in the original trial said the defendant special sensitivity to sexual matters arising from the beus of assistance was not admissible and as a result the jury couldn't consider it the court of appeal however didn't agree they found that it was admissible and the jury should have considered it in relation to the question of whether the accused was actually provoked I mean a person who has a special sensitivity might well be provoked in circumstances where a person without that sensitivity might laugh off a provocation or handle it more diplomatically and we can see justice McHugh's ratio decidendi on this plot here he writes the errors in question here led to the trial being fundamentally flawed the accusers real case on provocation was never left to the jury that being so it is irrelevant that the majority judges of the Court of Criminal Appeal thought the defense of provocation would be rejected by a reasonable jury once you read everything else relating to that issue it really all comes down to that conclusion the original judge is incorrect ruling meant that the defendant was not able to put his case to the jury so he didn't get a fair trial so he should have another then justice McHugh goes to the second issue under the heading the second day ruling I'm not going to go through that in detail here or else this video will go on forever but on that issue he also finds that the accused did not get a fair trial and so you can see that then he comes to his order so if you think about it it's not a matter of reading the judgment like a novel it's a matter of looking through and following those steps in the logic to see and identify that ratio decidendi that reason for judgment that's the thing that you're really looking for now what I really like e to do at this point is pause this video and have a look at Chief Justice Brennan's judgment follow the same sort of pattern that I've suggested and see if you can identify all the bits including the ratio decidendi I'll set out the steps on the screen in just a moment have a go at that and then come back to this video you now there are a couple of other things that I want you to look for when you're reading a case first don't forget to have at least a look at the dissenting judgments in this case justice Kirby's dissenting judgment is absolutely crackerjack anything written by Justice Kirby is going to be good I mean he's possibly the most spectacular legal author we've ever had on the bench but listen to this in my view the ordinary person in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or inflict grievous bodily harm he or she might depending on the circumstances be embarrassed treated as at first as a bad joke be hurt insulting he or she might react with the strong language of protest might use as much physical force as was necessary to effect an escape and where absolutely necessary well they might even assault the persistent perpetrator to secure escape but the notion that an ordinary 22 year old male the age of the accused in Australia today would so lose self-control as to form an intent to kill or grievously injured the deceased because of a non-violent sexual advance by a homosexual person is unconvincing it should not be accepted by this court as an objective standard applicable in contemporary Australia well snap I mean justice Kirby was in dissent in this particular case but the parliaments of the various states of Australia ultimately saw it his way and defendants can no longer claim provocation merely because they get hit on by a person of the same gender one last thing because well we've covered a lot of ground in this video one thing you'll need to do before you close out your reading of a case is to check and see whether other cases have considered this case and you'll also quite often want to see what cases were considered by the judges who wrote this particular judgement so you can sort of see where this case Falls the string of authorities in the string of prisons there are a couple of ways to do this the first and easiest is that in many cases although for some reason not this one they actually have a section up near the head note which lists the cases cited in the case so that's obviously a great start but what do we do in cases like this one where the cases aren't listed well do you remember when I talked about legislation in module two I talked about the process of noting up the legislation where you can do exactly the same thing with cases but using a very nifty and free database called law cite we go up here towards the top of the case report on Asli and click on law cite records and up pops a list of the cases which this case referred to and cases which came along later and referred to this one as well as things like reports and scholarly articles but as you can see this particular case got a lot of attention over on the right you can see what's called a citation index now that tells you a bit about the cases that have cited our case as you can see many of them have no stars at all whereas others get 5 stars meaning that they themselves have been cited hundreds of times so obviously if you wanted to look into what happened further in this area of law those are the ones that you would start with so there you go now you know not only how to read legislation thoroughly and deeply you also know how to read cases Darley and deeply obviously on your way through law school you're going to come into contact with hundreds of cases you're not going to read them all to this level of depth but the key cases the ones your lecturers seem to focus on don't just settle for reading what someone else says about them in a textbook find the case and have a look for yourself I promise it'll be worth it so here we are at the end of module three in this module we learned about the court system concentrating on Australia but also looking at the UK and the USA we learned about the court hierarchy and how that hierarchy allows people to appeal cases upwards but also how the rulings of those courts bind the courts lower in the hierarchy that provides the basis of our system of star a decisis or the doctrine of precedent in the second video we unlocked the mysterious code of legal citations showed you how each citation gives you exactly the information that you need to find any case either online or on a bookshelf and finally in this video we looked at how to read the case once you find it at this point we've covered off on both of the primary sources of law in Australia legislation and case law so you've got all the skills you need to find the law to read it and to understand it but that's only the beginning though real luring happens when you take all of that learning and apply it to a real world situation remember way back in module 1 when I talked about lawyers being problem solvers we'll module 4 is where that comes to life it's the key module in the whole course where you learn to reason like a lawyer and to argue like a lawyer see you there

Channel: Anthony Marinac

Views: 5,960

Rating: 4.9720278 out of 5

Keywords:

Id: CSWC4_ekqoU

Length: 31min 24sec (1884 seconds)

Published: Wed Apr 18 2018