Features of the Doctrine of Precedent (VCE SSCE Legal Studies): Revision Notes
Features of the Doctrine of Precedent
What is the doctrine of precedent?
When courts hear cases, judges sometimes need to make new law. This happens when there's no existing law (either statute law or previous case law) that applies to the situation before them. The legal reasoning judges use to reach their decisions becomes a precedent - essentially a legal principle that can guide future cases with similar circumstances.
The doctrine of precedent is the system where judges in lower courts must follow the legal reasoning used by judges in higher courts when deciding cases with similar facts. This creates consistency and predictability in how the law is applied.
Key terms you need to know
Material facts are the essential facts in a case that were critical to the court's decision. For a precedent to apply to a new case, the material facts must be similar.
A precedent is the legal reasoning behind a court's decision that establishes a principle or rule for future cases.
A court judgment is the formal statement by a judge that explains the decision and the legal reasoning behind it.
How does precedent work?
The doctrine of precedent relies on courts being organised in a hierarchy - ranked from lowest to highest based on the seriousness and complexity of cases they handle. Only superior courts (courts with the power to hear appeals) can create binding precedents and make law.
Victorian Superior Courts
In Victoria, the superior courts are:
- Supreme Court (Trial Division)
- Supreme Court (Court of Appeal)
- High Court of Australia
The High Court sits at the top of the Australian court hierarchy. Any decision it makes on appeal binds all courts in every state and territory across Australia.
Why do we have precedent?
The doctrine of precedent serves several important purposes in ensuring the rule of law:
Consistency and fairness: When courts follow precedents, similar cases are decided in similar ways. This means people can look at previous cases to understand how a court might decide their situation.
Predictability: Legal representatives can give clients informed advice about likely outcomes because they know which precedents apply.
Judicial guidance: Judges can refer to previous cases and build on established legal reasoning rather than starting from scratch each time.
Experience and expertise: Lower courts benefit from following decisions made by more experienced judges in higher courts.
Efficiency: Courts don't need to decide the same legal question repeatedly, saving time and resources.
Types of precedent
Binding precedent
A binding precedent is legal reasoning established by a superior court that must be followed by lower courts in the same hierarchy when they're deciding cases with similar material facts.
If a judge or magistrate is bound by a precedent, they must follow it even if they personally disagree with the reasoning. They have no choice in the matter.
When is a precedent binding?
For a precedent to bind a particular court:
- It must come from a superior court within the same court hierarchy
- The material facts of the cases must be similar
Examples in the Victorian court hierarchy:
- The Magistrates' Court and County Court must follow precedents from the Supreme Court (Trial or Appeal Division) and the High Court
- The Supreme Court (Trial Division) must follow precedents from the Supreme Court (Court of Appeal) and the High Court
- The High Court is not bound by any state or territory court because it's the highest court in Australia
Understanding ratio decidendi
The binding part of a court judgment is called the ratio decidendi (Latin for "the reason for the decision"). This is not the actual decision itself or the punishment given - it's the legal reasoning that led to that decision. This reasoning becomes the statement of law that must be followed in future cases.
The principle of stare decisis
Stare decisis is a Latin phrase meaning "to stand by what has been decided". This principle underpins the entire doctrine of precedent - where appropriate, judges should stand by previous decisions to keep the common law consistent and predictable.
Persuasive precedent
A persuasive precedent is legal reasoning that is not binding on a court but may still be considered by a judge and used to influence their decision. While judges aren't required to follow persuasive precedents, they may find them compelling if they contain important legal principles relevant to the case.
Persuasive precedents may come from:
Courts in another hierarchy: A Victorian court might consider precedents from courts in other Australian states, territories, or even other countries like the United Kingdom. While not binding, these can provide valuable legal reasoning.
Lower courts in the same hierarchy: Higher courts can choose to consider precedents set by lower courts. For example, the Supreme Court of Appeal might find a Trial Division precedent persuasive.
Courts of equal standing: Courts at the same level in a hierarchy can consider each other's precedents. While not technically binding, judges usually follow them to maintain consistency. The High Court is an exception - while it generally follows its own previous decisions, it won't do so if it considers the precedent is no longer good law (perhaps due to changes in community attitudes or technology).
Understanding obiter dictum
Obiter dictum (or just "obiter"; plural is "obiter dicta") is a Latin term meaning "a thing said by the way". These are comments a judge makes that aren't actually part of the essential reasoning for the decision, so they're not binding. However, they can still be important and persuasive in future cases because they represent the judge's considered opinion on related legal matters.
Developing and avoiding precedents
When judges decide cases, they consider precedents from earlier cases. If they're not bound to follow an existing precedent, they can either:
- Adopt the precedent (follow it, which means the precedent is affirmed)
- Choose not to follow it
This flexibility allows the common law to change and develop over time to meet society's changing needs.
Apart from simply following precedents, there are four other ways judges can treat previous precedents: reversing, overruling, distinguishing, and disapproving.
Reversing a precedent
Reversing occurs when a higher court, hearing an appeal from a lower court, disagrees with and changes the precedent set by that lower court in the same case.
Key features:
- Happens in the same case on appeal
- The superior court creates a new precedent that overrides the earlier one
- This new precedent becomes the one to follow in future cases
Worked Example: Google LLC v Defteros (2022)
A Melbourne lawyer sued Google in the Supreme Court of Victoria because search results linked to a 2004 article about criminal charges (which were later withdrawn). The Supreme Court found Google liable for defamation and awarded the lawyer $40,000 in damages.
However, when the case reached the High Court on appeal, the Court reversed the Supreme Court's decision. In a 5-2 majority ruling, the High Court found that while Google provided access to the article through its search results, it wasn't liable as a publisher because it didn't write the article or help communicate the defamatory material. The search result itself contained no defamatory content.
This High Court ruling created a binding precedent that all state and territory courts must follow in future cases with similar facts. It remains law until the High Court itself overrules it or parliament passes legislation to change it.
Overruling a precedent
Overruling occurs when a superior court decides not to follow a precedent previously established by a lower court in a different, earlier case.
Key features:
- Happens in a different case, not on appeal
- Similar to reversing, but applies to unrelated cases
- The superior court creates a new precedent that makes the earlier one inapplicable
The difference between reversing and overruling:
- Reversing = changing a precedent in the same case on appeal
- Overruling = changing a precedent in a different, later case
For example, if the Supreme Court (Trial Division) set a precedent in "Case A", the Supreme Court (Court of Appeal) could overrule it when deciding "Case B".
Worked Example: DPP v Brown (2020)
An 18-year-old woman pleaded guilty to arson and other charges in the County Court. Expert evidence showed she suffered from a severe personality disorder that affected her mental functioning and contributed to her offending.
Her lawyer argued the court should apply the Verdins principles - legal guidelines established by the Court of Appeal in 2007 (R v Verdins) that explain how impaired mental functioning should be considered as a mitigating factor when sentencing.
However, the prosecution argued these principles shouldn't apply. They relied on a 2015 Court of Appeal precedent (DPP v O'Neill) which stated that Verdins principles did not apply to personality disorders.
Judge Taft was bound to follow the O'Neill precedent, so he couldn't consider the personality disorder as a mitigating factor. He sentenced the woman to 18 months' imprisonment. However, Judge Taft expressed his disapproval of the O'Neill precedent and indicated he hoped the Court of Appeal would reconsider it.
The woman appealed to the Court of Appeal, which overruled the precedent set in O'Neill. The Court ruled that offenders with personality disorders should be treated no differently to other offenders with impaired mental functioning. The Court specifically stated that "the statements in O'Neill about the inapplicability of Verdins to personality disorders should no longer be followed." The woman was re-sentenced to a reduced term of 507 days' imprisonment.
The High Court can overrule itself:
While the High Court usually follows its own previous decisions to maintain consistency, it will overrule them if it considers a precedent is no longer good law.
Worked Example: Imbree v McNeilly (2008)
A fully licensed driver (Imbree) allowed a 16-year-old learner driver (McNeilly) to drive his car in the Northern Territory. McNeilly swerved to avoid debris, the car rolled over, and Imbree suffered severe injuries. He sued McNeilly for damages.
The lower courts were bound by a 1986 High Court precedent (Cook v Cook) which held that inexperienced learner drivers owed a lower standard of care to supervising passengers than experienced, fully licensed drivers. This meant McNeilly's liability for Imbree's injuries was reduced.
When the case reached the High Court, six justices overruled the Cook v Cook precedent, finding it was no longer good law. They held that learner drivers must meet the same standard of care as fully licensed drivers. A learner driver must take reasonable care to avoid causing injury, and their inexperience doesn't lower this standard of care.
Distinguishing a precedent
Distinguishing occurs when a judge avoids following an existing binding precedent by finding meaningful differences between the material facts of the current case and the case in which the precedent was set.
Key features:
- Only works if there are genuine differences in material facts
- Allows judges some flexibility in applying precedents
- The precedent remains valid but doesn't apply to this particular case
This is possible because a precedent set by a superior court only binds lower courts in cases where the material facts are similar.
Worked Example: Davies v Waldron (1989)
The accused was found guilty of being in charge of a motor vehicle while intoxicated. Police saw him in the driver's seat with his seatbelt on, starting the engine. The car moved about 15 cm before stalling.
The accused claimed a friend had been driving when the car stalled, and he was simply checking if it could be restarted, not intending to drive it.
The defence asked the judge to follow the precedent in Gillard v Wenborn, where an accused was found not guilty of being in charge while intoxicated. In that case, the accused had fallen asleep in the back seat of his car while drunk, woke up, moved to the front seat to use his car phone, turned on the engine for heat, and fell asleep again. Police found him asleep in the driver's seat with the engine running.
The judge distinguished between the two cases. He found that in Davies v Waldron, the accused had attempted and succeeded in starting the engine and moving the car, creating a risk he would drive while intoxicated. In contrast, in Gillard v Wenborn, the accused was found asleep and was not at risk of driving. Therefore, the accused in Davies v Waldron remained guilty of the offence.
Disapproving a precedent
Disapproving occurs when a court expresses dissatisfaction with an existing precedent but is still bound to follow it.
Key features:
- Does not allow the court to avoid following the precedent
- Shows the judge's disagreement with the precedent
- May encourage a higher court to review the precedent on appeal
- May encourage parliament to change the law
Important distinction: Disapproving is fundamentally different from the other methods because the court must still follow the precedent even though they disagree with it.
Who can disapprove precedents?
Judges and magistrates in lower courts: When bound by precedents from superior courts, they can express dissatisfaction but must still follow the precedent. This statement may be used during an appeal or encourage parliament to change the law.
Judges in courts of equal standing: They may express disapproval rather than overruling, preferring that a higher court or parliament changes the law.
Judges in superior courts: They may disapprove of precedents from lower courts rather than immediately overruling them.
Worked Example: DPP v Brown (2020) - County Court stage
As discussed earlier, Judge Taft in the County Court was bound to follow the Court of Appeal's precedent in DPP v O'Neill that the Verdins principles didn't apply to personality disorders. However, he clearly expressed his disapproval:
- He stated that had he not been bound by O'Neill, he would have given "very considerable weight to the Verdins principles" when sentencing
- He remarked that he realised the case would "find its way into the Court of Appeal" so the precedent could be reviewed
- He indicated he was "most sympathetic to the proposition that O'Neill should be looked at again"
This disapproval didn't allow Judge Taft to avoid following the precedent, but it signalled his view that the law should be changed. Subsequently, when the case was appealed, the Court of Appeal did overrule the O'Neill precedent.
Applying and developing precedents
Most often, courts simply apply existing precedents to new cases without distinguishing, overruling, reversing, or disapproving of them. However, even when applying precedents, judges may need to refine and clarify the law.
Interpreting precedents
When applying previous precedents, courts sometimes need to interpret the meaning of words and phrases used in past decisions. This may result in:
- Broadening the meaning to apply to new situations
- Narrowing the meaning to limit its application
This is why a precedent is never a final, unchangeable statement of the law - circumstances constantly evolve, and the law must adapt.
Gradual development of law
Over time, through reversing, overruling, distinguishing, and disapproving, precedents are modified and developed, allowing common law to expand gradually. Entire areas of law, such as the law of negligence, have developed piece by piece through court decisions over many years.
Courts making law and juries
It's important to understand that precedents are established by judges, not juries.
Law-making through the courts generally occurs when:
- A court is hearing an appeal (where there is no jury)
- A case is being heard without a jury
Why can't juries create precedents?
Juries determine the facts of a case - they decide what happened and whether the accused is guilty or not guilty. However:
- Juries do not decide on points of law (that's the judge's role)
- Juries do not give reasons for their decisions (they simply deliver a verdict)
In contrast, when judges resolve disputes, they must provide detailed reasons for their decisions. It is this legal reasoning - the explanation of why they reached their decision - that forms the precedent.
Remember!
Key Points to Remember:
- Precedent is the legal reasoning behind a court's decision that guides future cases with similar facts
- The doctrine of precedent requires lower courts to follow the legal reasoning of higher courts in the same hierarchy
- Binding precedents must be followed by lower courts when the material facts are similar
- Persuasive precedents are not binding but may influence a court's decision
- Ratio decidendi (the reason for the decision) is the binding part of a judgment
- Obiter dictum (by the way) are persuasive comments not essential to the decision
- Precedents can be reversed (changed in the same case on appeal), overruled (changed in a different case), distinguished (avoided due to different facts), or disapproved (criticised but still followed)
- The doctrine of precedent ensures consistency, predictability, and fairness in how laws are applied
- Only judges can create precedents - juries cannot because they don't decide points of law or provide legal reasoning