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Law 131:

Common Law
Section

Part One of Two For Law 131

Get
Into
Law

Law 131: Introduction

Preamble:
Welcome to Law131, and congratulations on defeating Law121.
No matter what your grade was you can still get into part 2. But
more than that, you should be proud of yourself just for
surviving. Around half the students who started this year wont
have made it this far.
Law131 usually has about 900-1000 students and of that about
300 are offered a place in Law part 2. This means that your
Law131 grade is crucial if you wish to succeed. Dont worry; if
you have bought this guide then you have already given yourself
a good head start.
Law131 is vastly different than law121 in that it is not focused
at all upon opinions or essays. What you learned in High School
English or social studies wont really help you here. On the
other hand, what you will learn in this course will help you all
through law school.

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131 is far more formulaic and in essence it is trying to give


students two unique skills. So the entire course is basically to
help you master those skills, there is almost nothing to
memorize and very little to learn.
Legal method is also a course that is taught in all NZ
universities not just Auckland, however I did encounter some
stark differences with the approach (which basically meant that
a $100 textbook I bought was all but worthless). This guide will
of course be based around preparing you only for the Auckland
course.

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About the Course:


As I said before, Law131 is fairly formulaic and based around
developing legal analytical skills. I personally found this a huge
comfort after Law121, where it was very hard to tell if I was on
the right track. If you can get hold of the necessary skills then it
will be an easy A+.
Following that, it would be pointless for this guide to focus on
the individual classes as opposed to focusing on the skills. If for
no other reason than the cases can be different depending on
what the teacher wants to teach. Thus, dont be concerned if the
pacing is different; the overall goals will be the same.
Since I will not include any of the filler information; I will likely
move quicker than your teacher at various points. My goal is for
this to allow maximum time to practise and utilize the skills
before the test/exam. This is especially true in the second part of
the course, where I cut out anything which isnt directly
examinable.
Study groups are again useful and I recommend them. But in
Law131 they are far less essential than in Law121 and I
personally didnt continue mine. Conversely, the tutorials for
Law131 were in my opinion very good and you should
definitely go to all of them and definitely prepare for them.
About the Term:
Term 2 is the business end of the year; it is far more important
and more permanent than term 1. What I mean is that law
application is based on Law121+Law131+The last 6 papers that
you did.

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So if you do very poorly in an elective in Term 1 then it can be


erased by taking another paper in summer term or an extra paper
in term 2 and only the newest 6 will be counted.
But if you make a big mistake and bomb your GPA in Term2
then it will require 2 terms worth of papers to wipe it away.

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Work hard during the term and play in the incredibly long
summer holidays. Also since law exams are typically near the
start of the exam schedule; I dont recommend choosing any
papers that dont have exams. They will almost always have a
huge assignment due in exam week. My friend fell into this and
had two 15,000 word assignments that were both worth 100% of
her grade, and no time to study for her early exam.

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Anyway, good luck work hard and have fun


You will find out if you made it on X-mass eve, so make sure
you get a good present for yourself.

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Skills for this course

Last time I said that this course is all about mastering a few key
skills. Today I am going to tell you basically everything you
need to know.
Print this off hang it on your wall and when you can confidently
do all of them then you can ace the exam.
Common Law

o Understand the hierarchy of all NZ courts, and have


decent awareness of other common law countries
hierarchies.
o Understand how precedent works in common law,
and which courts must follow decisions.
o Be able to determine the Material facts from a case.
o Be able to determine a Ratio from a judges
decision.
o Be able to determine Obiter from a judges
decision.
o Be able to extend, distinguish or apply a Ratio.
******UNTIL TEST*******

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o Be able to read a statute and understand its parts.


o Be able to use statutory analysis to determine
meanings of words and validity of arguments.
o Apply presumptions of law and canons of
interpretation
o Understand the difference in precedent in common
law from statute law.
o Based on your reasoning from the statutory analysis,
make a decision as regarding the case you are given.
*******UNTIL EXAM*******

Statute Law

Structure of Courts

The first thing to learn is the structure of the courts in New


Zealand. It may seem like a trivial matter, but it is actually really
foundational you will be expected to know this stuff, and I
guarantee you it will be important in both your test and your
exam.
Hierarchy:
Supreme Court / Privy Council (Before 2004)
|
Court of Appeal
|
High Court (Before 1980 was called Supreme Court)
|
District Court/Family Court
|
Tribunals
Dont worry about the specifics of the employment courts or the
Maori land courts; the simplified structure above is all you
should need to know.
In Depth

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Besides this, remember that until 1980 the High Court was
called the Supreme Court. This is something you should always
keep in the back of your mind.

You should note that before 2004 New Zealands ultimate court
was the Privy Council which is located in England. They are no
longer used as we have established our own Supreme Court; but
the old decisions are still legal. The Privy Council was basically
a court that England provided for all the commonwealth nations
to use as final court of appeals.

In exams, often you will get a decision to read which appears to


be from the Supreme Court (thus very powerful) but is dated in
1950 and thus was only the High Court.
Anytime you have a decision which is from the Supreme Court;
make sure it is newer than 2004. You will see why this is when
we focus more on precedent power, but as general advice; Be
super suspicious of any material you are given from above High
Court level-it is almost certainly a trap.
You dont need to know the specifics of each of the courts as to
the limits of their jurisdiction; but you will need to know at what
stage they can hear a case.
Jurisdiction:
Jurisdiction means the right of a court to hear a case and give a
decision. There are two types of Jurisdiction in New Zealand;
Original Jurisdiction and Appellate Jurisdiction.
Original Jurisdiction= the court has the power to make the first
decision of a case, to hear it before anyone else does. Called
hear a case in first instance.
Appellate Jurisdiction = the court has the power to review the
decision of the previous court and make sure that the law is
correctly applied.
This goes back into the structure of the courts; lower courts hear
issues as they arise with original jurisdiction and higher courts
resolve the matters with finality.
DISTRICT COURT= has original jurisdiction, it will be the first

court to decide on smaller matters and give a resolution.


Technically it can also hear appeals from some tribunals. But
dont worry about this.

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jurisdiction. It can review a matter from the district courts and

HIGH COURT= has appellate jurisdiction and original

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ensure that the law is applied correctly. It will also be the court
of first instance on more serious matters such as murder.
COURT OF APPEAL = has appellate jurisdiction only. This court

will review matters which have come from the lower courts and
give what is usually the final judgement.
SUPREME COURT = has appellate jurisdiction only. This court is

the ultimate court in New Zealand and can review a decision


that has come from the CA. However, the Supreme Court is can
only hear a case it meets certain requirements, such as public
importance. So for most claims, the CA is the final court.
In all that is the relevant structure of New Zealand court system.
It is largely the same in most commonwealth countries. But the
names may change; you should also know the different names
for the main English courts.
In England the High Court is the Queens Bench (or Kings
Bench) and the Supreme Court is the House of Lords.
Lower level courts handle more cases and give quicker
decisions and higher level courts are able to review those
decisions and correct any they believe are incorrect. Thus the
higher level judges are more concerned with controlling the
direction of the law and the lower level judges are concerned
with dealing with each case.
Dont get caught out with the old Supreme Court or with the
Privy Council issues and you should be fine as far as structure
and proceedings are concerned.

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Just in case, you probably dont need to know this but.


The Australian naming system is basically the opposite of
everyone else. Their Middle level is the Supreme Court and
their Highest Level court is the High Court of Australia.

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Precedent

Overview
Now that you know the structure of the courts you need
understand stare decisis, or the doctrine of precedent. I am sure
you will have touched on the fundamentals of it in your 121
study, but now you need an actual understanding that you can
put to work.
For the sake of legacy we will start from the start.
Stare Decisis is the idea that a decision in a higher level court
will be binding on those in the lower level. This evolved from
the old English courts where the law was vastly different all
around the country. It is based on the idea that like cases should
be treated alike. So if the courts today say that a person in
situation A must pay damages; then any future people in
situation A should also be told to pay damages.
Precedent Power
The power of precedent is based on the hierarchy of the courts;
each level of the courts creates precedent that binds those below
it. So as you move up the hierarchy the decisions become very
powerful.
For instance, a decision made by the Supreme Court will be
binding on the Court of Appeal, the High Court, and the District
Court in any similar cases in the future. But a decision from the
High Court will not be binding on the Court of Appeal, and they
may choose to overrule it (correct it).

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Any precedent decision can be classed into two categories;


binding or persuasive.

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BINDING PRECEDENT= the court has no choice but to follow along

with the decision made earlier. A Supreme Court decision is


binding on the High Court and thus a high court judge will have
no choice in his decision.
PERSUASIVE PRECEDENT= the court has a choice of whether to

follow the previous decision or to go in a different direction.


Lower court decisions are not binding on higher courts, but they
may be persuaded to follow the decision anyway.
The more powerful the court that made the decision the more
persuasive it is.

These concepts (like many you will cover) may seem nebulous
but it is rather simple once you grasp it.
Every New Zealand court is bound by decisions of the
court above it. New Zealand courts are neither bound
by their own decisions, nor by overseas decisions.
Thus a previous decision by the Court of Appeal will bind the
High Court and District Court, but will not bind the Court of
Appeal.
In the same way; even a decision from the Highest Court of
Australia will not be binding on the family court of New
Zealand. But it is important to keep in mind that even though
they are not binding; decisions from supreme courts overseas
are considered very persuasive.
Ie) English House of Lords decisions are not easily ignored by
District Courts.

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Besides just the level, how the judgment was determined, when
it was determined and whether the judge spent time considering
it or solved it urgently etc; will all be sub-factors to determine
the persuasive value.

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Exercise:
I will try to illustrate each of the points so far with an example.
**EACH OF THESE IS HYPOTHETICAL**
1)
IN COUNTRY X

Adam grows a big tree on his property. It falls and destroys his
neighbours house, the neighbour then sues him for the damage
to his house. In the end, the Supreme Court of the country
decided that he does not have to pay for the damages. This
creates a binding precedent.
Later John makes a really tall tower on his lawn. He takes all
proper precautions and the tower is legal, but it falls and
destroys his neighbours house. The case goes to the High
Court, what will the judge decide?
Likely, the Judge will decide that it is similar to the previous
case of Adam, and thus he must follow the decision. John may
also avoid paying for damages.
The Supreme Court decision was binding on the High Court.
Later again Max hears about those two cases and decides that he
doesnt like his neighbour. He builds a giant catapult on his land
and launches stones to destroy his neighbours house. The case
once again goes to the High Court; will he also not pay
damages?
The cases are completely different. Max is deliberately trying to
harm his neighbour and thus will be forced to pay (and maybe
go to Jail).
Only similar cases are treated the same.

2)

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Mandy is walking Bills dog but accidentally lets it go, and it


runs away. The District Court charges her with negligence and
makes her pay Bill damages.

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IN COUNTRY Y

Later Bill gets Andy to take care of his dogs but once again they
escape. This time the decision goes to the High Court, what will
the judge decide?
The judge can decide whatever he likes. There is no binding
precedent.
District court decisions are of persuasive value only.
3)
IN COUNTRY Z
It has long been established by the House of Kings that it is an
invasion of privacy to take a photo of someone who is in the
hospital.
Sarah lives in Country X, and has snuck into a hospital to take a
photo of a famous celebrity. Will the many decisions from
Country Z be binding on the District Court of Country X? Does
it matter if the celebrity is from Country Z?
The decisions from country Z will not be binding precedent on
Country X, no matter the power of the court. It will also not
matter where the celebrity is from.
Decisions from other jurisdictions are of persuasive value only
4)
COUNTRY G

In 1912, The Court of Appeal in Country G decided that talking


in class could be considered riotous behaviour, and was a
criminal offence.
Today the Court of Appeal is hearing an appeal from a student
who was talking in class, but argues that the decision is wrong.
Can the Court of Appeal change their decision?
They may choose to reverse the decision and decide that these
days it is no longer riotous to talk in class.

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No (New Zealand) courts are bound by their own decisions

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Precedent Part 2

Today
I understand that it is hard to really understand the aims of the
course while we are still learning fundamentals. You may be
feeling a little lost right now. But just stick to it and try to
absorb everything we cover; when we put it all together you will
see how everything has its place, and how integral it all is.
Today we will look at more of the in depth aspects of precedent
and how it operates. Dont be tempted to gloss over this stuff, it
is absolutely necessary to have a complete handle on it for the
test and the exam.

Theory
First it is important to understand what the reason for precedent
is in law. The oft quoted reason is that it provides;
predictability certainty and stability to the law.
These are essential aspects, if the law is unstable and
unpredictable how can we know what it is or what is legal and
what isnt. These are key aspects as to the rule of law, stability
allows justice to be done.

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But a High Court decision may take a few weeks while a


Supreme Court decision will take months.

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Second, precedent operates in a hierarchy due partly to a need of


timely dispersion of justice. The District Court and the High
Court will see many times more cases than the Court of Appeal;
so it is necessary that they are able to make quicker decisions. In
cases where there is substantial argument against the decision,
the Court of Appeal and possibly the Supreme Court can
carefully review the law and correct it if necessary.

You already know that higher courts bind lower courts and
decisions from overseas are only of persuasive authority.
But are decisions from higher courts always binding on lower
courts?
The answer is that any decision from a higher court is binding
on a lower court and must be applied (used/followed) to the case
unless it can be distinguished.
Cases are distinguished if the judge can argue that they are not
sufficiently similar enough to need to follow the precedent
decision.
A case regarding airplane safety may be distinguished from one
which is concerned with ship safety. In that case the judge
would not have to follow the previous precedent.
Whether a case can or cannot be distinguished is largely up to
the individual facts and the perception of the judge.
Can a case about a rimu be distinguished from a case about an
oak tree? The answer will depend on the facts of the case.
We will cover distinguishing in more detail later in the course,
but for now it is important to understand that a decision which is
binding must be followed; unless it can be distinguished.
Exercises:
I will test your understanding of precedent.
1) What is the other name for the doctrine of precedent?
2) What reasons do you believe exist for the way precedent
treats foreign cases?

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4) What is the status of precedent in the following decisions?


Provide a small explanation.

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3) Do you believe that precedent should be adhered to in every


circumstance?

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a) 1992 Foreign High Court decision referenced in NZ Supreme


Court
b) 2003 Foreign Supreme Court decision referenced in NZ
District Court.
c) 1996 NZ Court of Appeal decision in NZ District Court.
d) 1944 NZ Supreme Court decision in NZ Court of Appeal.
e) 1982 NZ High Court decision in NZ District Court.
f) 1988 NZ District Court decision referenced in NZ Court of
Appeal
g) 1988 NZ Court of Appeal decision in NZ Court of Appeal.

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h) 2010 NZ Supreme Court decision in Canadian Family Court.

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Legal Logic

Answers from Precedent Lesson:


1) Stare decisis- Which means; stand by decisions and do not
move that which is quiet.
2) Precedent in NZ law gives decisions coming from foreign
countries only persuasive value. The reason for this is that the
legal and political situation may be vastly different, and we wish
to have law which is suitable for New Zealanders.
However, decisions which come from high ranking courts
overseas such as the House of Lords are considered to have
strong persuasive value. Thus it is far from uncommon for NZ
courts to adopt law found elsewhere, so long as it is deemed
correct for us.

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4)
a) Would have persuasive authority only
b) Would be very persuasive but not binding.
c).Would be binding precedent (CoA binds DC)
d) Would have persuasive authority only (remember that in
1944, what is now the High Court was called Supreme Court)
e) Would be binding precedent (HC binds DC)
f) Would have persuasive authority only (and likely not much)
g) Would have persuasive authority only (CoA not bound by its
own decisions)
h) Would have persuasive authority only (likely very
persuasive)

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3) Very strict adherence to precedent would mean that courts


would be bound by their previous decisions. I personally feel
that this would be a mistake and would only serve to prevent the
law from evolving or correcting itself. It may be worth
sacrificing some stability and predictability in the law in order to
obtain justice. This is especially true with older decisions from
vastly different social situations.

Caution:
As we approach reasoning and ratio there is something that I
wish to make very clear.
This course is not the same as Law121; you do not have to
remember anything at all about the cases themselves. The
purpose of this course is to understand judges reasoning
techniques and learn to use the same techniques yourself.
In this course, consider yourself a judge not a student.
Thus for all intents and purposes it makes absolutely no
difference if a case is real or hypothetical.
The reason I say this is to prevent you from trying to learn about
whatever area of law your lecturer is basing the cases on. It will
not help you in the exam at all.
For instance, in 2010; the entire course was based around
learning about the development of NZ privacy law. As a result,
many students went into the test/exam knowing as much about
privacy as they could only to be confronted with a test which
was about growing trees and an exam on shoplifting.
Focus on the skills and reasoning not on the substance of the
case itself. For this reason (and also because its more fun),
almost every case and every law I discuss will be completely
hypothetical.

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We have looked at precedent and how decisions bind onto lower


courts. But it is important to be very precise in how this is
understood. A judges decision on a case may end up being
100pages long and discuss many aspects of law. Logically this
cannot all be binding on the lower courts. Thus**A CASE IS ONLY
BINDING ON THAT WHICH IT DECIDES .** Only the decision itself
binds the lower courts.

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Today:

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This decision or the rule of a case is called the ratio of the case.
So it is more correct to say that; only the ratio of a case is of
precedent value to other cases. Dont worry too much about
what a ratio is; we will spend a lot of time working on that
before the test. But for now you have to comprehend that only
the ratio is binding.
I.E)
the Supreme Court has a case about a person who cut down 100
Pohutukawa trees. On page 1 they declare that cutting down
Pohutukawa is a crime, but then spend 99 pages talking about
how ice creams should never cost more than $2.
This extreme situation will not create any precedent regarding
ice cream. The case is only binding for what it decides, and that
was regarding native trees.

Logic:
So now we come to the question of how a judge comes to a
decision and what logic he uses. Broadly speaking there are two
relevant legal logics: Deductive reasoning and Analogical
reasoning (there is also Inductive reasoning, which is really
interesting. But I dont believe it is terribly relevant to your
study).
DEDUCTIVE REASONING: This is more common in statute law; it is

a process of deduction (going from general to specific). A judge


will read that the general law says that if you intentionally
deprive someone of something it is theft. Then he will apply this
onto the specific fact situation and note that since you
intentionally deprived me of my car, you are a thief.
ANALOGICAL REASONING: This is used in common law. It is the

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process of comparing specific to specific. Basically a judge will


compare his current specific fact situation to a previous one that
is similar (analogous) and decide if they are similar enough that
the same decision can be used.

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At this point I hope it should be clear to you that we will be


interested in Analogical reasoning for the first half of this
semester and Deductive reasoning for the second half.
Before continuing I believe it is prudent to summarize the
position thus far and hopefully prevent as many people as
possible from getting lost in all the details. If you are feeling
confused; hang in there.
So far we have only considered the foundational theory, but this
is a practical course. It is much harder to understand these
concepts when you have yet to use them. If you keep up and
study a bit; I am 100% confident you will be perfectly
comfortable with all this stuff before the test.
Courts operate in a hierarchy.
Stare decisis dictates that lower courts are bound by the
decisions of higher courts (within the same country).
When a court makes a ruling on a case, the relevant part of
that ruling is called a ratio. A case is only binding for what
it actually decides.

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When a Judge is deciding if the ratio of a previous case


should be used on the current case; he uses analogical
reasoning to compare the two fact situations.

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Material Facts

Today we will get into the first part of defining a ratio. Simply
put, the first thing that you need to be able to do is read a case
and then determine which facts are material(important) and
which facts are immaterial.
These material facts are the criteria by which cases can be
compared against each other (same material facts=same
decision).
Material Facts:
Material facts are any facts that were necessary in order for the
judge to come to his decisions. So in a case about theft, the fact
that the suspect took an item is material. The fact that the
suspect was a man wearing a red jersey is most likely
immaterial.
What this means is that in a future decision regarding theft, the
next judge can notice that he took an item and can ignore the
gender or clothing as irrelevant details.
There is some degree of subjectivity in determining material
facts, and it slightly requires a degree of instinct. But more than
that you should use common sense, and always go back to: what
facts are necessary to make a decision on this case?
It is also important that when you describe material facts you do
some with a level of abstraction. What I mean is that you should
use them as CLASS FACTS and not CASE FACTS.

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Rather than a woman you could say a person.


Rather than a bottle of wine you could say an
alcoholic beverage.

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The level of abstraction you choose is mainly up to you. I


recommend that you make the points abstract enough that the
case can be used in other similar situations.
To use the above example, if in a case you decide that the case
is about a woman and a bottle of wine; then you will not be able
to refer to your decision if the next case is about a man with a
bottle of tequila. Because the material facts are different.

Remember to only include the facts that are necessary, and no


more than needed.

Exercises:
1)
This is a case before the District Court.
Mr Pickle is being charged with the crime of theft. It seems that
on the night of December 3rd he had been drinking heavily and
was very drunk. At approximately 10pm; he forced open his
neighbours door, and in doing so caused the entire door to
collapse inside. It seems that he then picked up the collapsed
door and ran away. He was apprehended by the police while
buying tickets to Mexico, the door was found with his luggage.
I have underlined what I believe to be the material facts of the
current case. In order for the judge to determine the crime;
A person broke into a house, took an item and then
left without intending to return the item. He is
being charged with theft.

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The rest of the information makes a nice little story but is


completely irrelevant.

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2) This is a case before the High Court.


Mr Windygrass is the coach for the Brooklyn Engines, a minor
league soccer team. It seems that following a poor performance
in the ABC club championship he took the team on a
compulsory training camp. At this camp he was in charge of all
food and water supplies. In an effort to encourage greater
performance; he denied all food and water until the training was
done perfectly. Unfortunately, two of the members collapsed
due to heat and thirst and one subsequently died. He is being
charged with manslaughter.

A man was in charge of food and water supplies for


a group. He denied access to the food and water,
and as a result of this; one member died. He is
being charged with manslaughter.
Try to do these ones on your own:
3) This is a case before the District Court.
Ms Smith is an 86 year old grandmother of two who lives in the
northern part of Tauranga. Last Sunday it has been alleged that
she went into the corner dairy to purchase milk and cheese.
However while she was at the counter talking she put 3 mars
bars into her pocket and left the store without attempting to pay
for them. She has been charged with shoplifting.

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Mr Smoke is being charged with assault following the events of


last Saturday night. It is alleged that while he was walking home
from the pub Mr Smoke became angry at his neighbours
letterbox and spent some time kicking it. In doing so he broke
his right leg and cried out in pain. This cry was answered by Mr
Smith who came to see if he was okay. Mr Smoke was not
happy to be seen in such a state and he picked up a nearby stick
and attacked Mr Smith. The blow struck Mr Smith low and
broke his left leg.

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4) This is a case before the High Court.

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Finding an Issue

Today
Today we will start the first really practical part of this course.
Finding an issue. You will need to delve into the facts of a case,
pick out what is necessary and then put down the main question
of the case into words.
In my opinion finding the issue is the most important part of this
section, once you have formulated your issue, you have 99% of
the ratio, and will be able to use the case as you like.
Learning to take the material facts and form an issue and a ratio
is literally the one key skill thing you will need to master in this
half of the course.
Issue Concept
Before we do anything else I believe that the best place to start
is by working out the issue of any case. Once the issue is
formulated; it is a much more simple process of getting to the
ratio.
An issue is simply, the question of law that concerns the case.
Every case will have at least one question that the judge will
need to answer in order to apply the law and resolve the case.

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An issue should include all of the material facts of the case


(after all material facts are facts that are necessary to solve the
case)

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For example:
I have taken your stereo without your knowledge or consent and
I intend to keep it. In this case the judge may ask:
Whether in law, if a person taken an item
without consent and intends to keep said
item, is that person guilty of the crime of theft
That would be the issue of the case, and the answer to that
question (that yes I would be guilty) would be the ratio.
So in other words, the case will turn on the answer to that
question. Thus it is the (Legal) Issue of the case-There can be
more than one issue though.
When you are trying to create an issue for a case you should
take all the material facts, and then ask yourself what question
does this case need to answer? This can also help you make
sure that you only have the necessary material details.
Also, note that the issue will use the same degree of abstraction
as the material facts do. Ensure that you maintain consistency
with your language.
Finally, when you are writing the issue I recommend using the
format I have used above. It is not mandatory that you do so; in
fact you can write it however you like. But if you use the
process of:
Whether in law(description of events)(question)

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It makes sure that your issue is a question, and for the most part
the ratio can be exactly the same just with the word Weather
removed.

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Practical
Read the following (hypothetical) case and answer the
questions.
<To compel means to force/coerce someone to do something>
High Court of Country X
Peterson J
th
13 May 20XX
The following case comes to me from an appeal by the plaintiff.
I will begin with the facts of the case then outline my judgment.
For the last 5 years the IRD has been tracking Mr Mole in
regards to allegations of tax evasion and income fraud.
It seems that there was little progress for the most part and not
enough to charge him at this point. As such, on January 3rd a
letter was sent to Ms Mole requiring her to go to the IRD office
and answer questions about her husbands finances.
Ms Mole consulted with her lawyer Mr Brown who brought the
case to court arguing that the common law protects a spouse
from compulsion in testifying against their partner.
Lawyers for the IRD argued that such law was out of date and in
regards to the necessity of her questioning that it was a matter of
great importance that I allow their questioning. Moulder J in the
District Court found in favour of Ms Brown, and now the case
comes to me.

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AvB 1906 is the strongest authority and comes from the Hall of
Kings. But local and more recent cases such as BvA 1994 from
the High Court and AB v C 1985 from the Court of Appeal
follow the same reasoning.

25

If I consult the authorities on this issue; it is perfectly clear in


many judgments that the common law protects marital
confidentiality.

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All of these cases clearly state that the common law protects the
harmony and confidentiality of marriage, and does not allow a
spouse to be compelled to provide evidence against their
partner. Thus I too must follow this reasoning and I also find in
favour of Ms Mole....
Questions:
1. What court was this case in?
2. Of the cases mentioned, which are binding for Peterson J?
3. What are the Material Facts of this case?

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26

4. What is the issue of this case?

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Discerning a Ratio

Answers from Lesson 8


1. The High Court
2. Since he is in the High Court the only binding case is the
one from the Court of Appeal AB v C 1985
3. A spouse was being compelled to give evidence against
their partner.
4. Whether in law, a spouse can be compelled to give
evidence against their partner.

Today
Today we will work on the finding the ratio of the cases. This is
the most important part of the common law section of the
course, and I have seen many past exam papers where a correct
ratio was worth 30-40 marks.
Thus understandably we will be spending a fair bit of time on
this.

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As I have said in previous lessons, the ratio is the part of the


case that binds as precedent. The ratio is the reason for the

27

Ratio Theory

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decision. But more simply; it is a sentence which explains the


rule of law which the judge uses to reach his decision.
It is somewhat difficult to understand a ratio merely by its
description so lets use an example. From the case we studied in
lesson 8 about marriage and confidentiality:

Issue: Whether in law, a spouse can be compelled to give


evidence against their partner.
Ratio: In law, a spouse cannot be compelled to give
evidence against their partner. Because, the common law
protects the confidentiality of a marriage.

You can see that the ratio is basically the same as the issue, but
as an answer to the question, it provides a rule of law which the
judge can base his decision on. Thus because the ratio says that
a spouse cannot be compelled; his decision is that Ms Brown is
protected.
I reccmoned thinking that the issue is the question which the
judge asks himself about the case-Can X happen? Then the
Ratio is the answer to that question, both now and in the futureNo X cannot happen.

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In your answers; every issue must have a ratio and every ratio
must have an issue. So if you find 1 issue then you must find
only 1 ratio. They must also both be using the same level of
abstraction
-If the Issue says media, the Ratio cant say book.
-If you find Issue A then you cant have ratio B and ratio C

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There are a million techniques to finding a ratio and you will


learn at least a few in your classes. No matter what method you
use, you should always stat with the material facts, then the
issue, and formulate the ratio from that. Dont try to skip any of
the steps, it may seem a hassle; but if you miss a material fact
then you create the wrong issue and answer the wrong question.

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Finally, you will notice that I have italicised half of the above
ratio. That is the reason portion (the first half is the rule). I have
italicised it because it is not strictly necessary. For a ratio that a
real judge is concerned with, the reason is implied and only the
rule is important.
However, at your stage of study many teachers want you to
expressly state a reason. It shows that you didnt just grab a
random sentence and that you actually understand the rule. They
may teach that ratio=rule + reason.
When I was studying my teacher allocated half the marks of the
ratio to stating the reason. So in a 40point ratio, you could only
get 20points for a correct statement of law.
No matter what the perspective of your lecturer is about this I
would strongly recommend that you include a stated reason in
your ratio. It is very easy to do; as long as it makes sense
anything is fine. Just write one sentence which you think
explains why the previous the rule is like that.
At the very least you wont lose marks and I would bet dollars
to doughnuts that you would get some.

Example Ratio:
Just to try to make sure you understand the format I will copy in
some example ratio I wrote in the past. You can choose to
phrase your ratio vastly different so long as it is in line with
your issue and your material facts.

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Page

In law, it is a basic principle that a person cannot


be guilty of a criminal offence if the prohibited act

29

In law, there is a duty on a landowner to take


reasonable care that hazards occurring on his or
her and do not cause harm to neighbours. Because
you should not act negligently in the face of
something which may harm your neighbours.

or omission is outside his voluntary conduct or


control. Because in order to satisfy criminal
liability; you must be proven to have both criminal
intent and criminal action.
In law, there is no duty on adjoining owners to cut
thistle, which are a natural growth of the soil.
Because the common law protects land owners
from a duty to remedy conditions of natural origin
regardless of peril to others.

Exercise
Write a ratio for the following issue

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30

Whether in law, if a person intentionally hits another person


without lawful justification, is that person liable for the tort of
battery.

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Discerning a Ratio Part 2

Answers:
A possible ratio could be:
In law, if a person intentionally hits another person without
lawful justification, that person is liable for the tort of battery.
Because you must not attack other people lawlessly.

Today:
Today we will be continuing to look at the ratio of a case and
practice formulating one. One other thing I wish to cover today
is the issue of a broad or narrow ratio. Controlling the size of the
ratio will be important when you have to consider using
previous cases to answer future ones.
Then briefly we will discuss the concept of Obiter, it is a very
important concept but as far as I have seen it rarely tested or at
least not tested in very much depth. So a somewhat simple
understanding will suffice.

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When a ratio is written it can be said to be either broad or


narrow. This relates to its scope and explains how easily it can
be applied onto other cases. A broad ratio can be easily applied
onto different fact situations while a narrow ratio can only be
applied to very specific ones.
The more facts/details that a ratio includes, the narrower its
scope will be. (Because future cases will have to include the
same facts to be within the scope)

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Ratio Scope

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To give a simple example:


People must not kill people.
This is an incredibly broad ratio. If I kill you with poison or if I
kill you with a knife, or even if I kill myself I am within the
scope of this ratio. Thus the only material facts are person and
kill.
Compare with:
People wearing red hats must not use a gold club to
kill people with blue hats on Thursday before 5pm.
This is an incredibly narrow ratio. There are far more material
facts that must be present before a future case can use this ratio.
If I am wearing a green hat and use a gun on Wednesday, then
clearly my actions are not within the scope of the ratio.
Real Examples:
The classic example of this is the legendary ratio of Lord Atkin
from Donehuge v Stevenson, the case was concerning a snail
that managed to get into a bottle of ginger beer. But the ratio
from the case was basically: a manufacturer must take
reasonable care to ensure that the goods will not cause harm to
the end user.

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Page

On the other hand, if the ratio of Donehuge v Stevenson had


been a manufacturer of ginger beer must take reasonable care
to ensure that no insects are inside which could harm the end
user; it would be a very narrow ratio and you would have some
difficulty applying it to subsequent cases.

32

This is a broad ratio and can easily be applied to much different


cases. For example Grant v Australian Knitting was about a
doctor who paid for badly made underpants which caused a
rash. Vastly different from snails in soft drinks, but the same
principle about manufactures taking care was applied.

Advice:
This is why it is important to start with the material facts, what
you decide is material and what degree of abstraction you give
the facts will define the scope of your ratio. Person includes
more people than man/woman does etc.
Your lecturer may tell you that either a narrow or a broad ratio
is fine, but in general I believe that you should be at least
slightly broad. In the test/exam you will almost certainly have to
take a ratio from one case and apply it to another, if you make
your ratio too narrow this becomes more difficult than it should
be.
The 2010 Test required you to consider a case about a tree that
caught fire and spread, one about thistles blown onto someones
property. So the ratio needed to be broad enough to include
natural nuisances rather than exploding trees.
Obiter:
Obiter Dictum is the next concept that you should be aware of.
An obiter is simply a rule of law that is unnecessary in
resolving the case. It is generally the opinion of the Judge, or
just some extra issues that he/she feels should be included for
some reason or another. Since it is a rule of law, it seems exactly
like a ratio except that it is irrelevant.

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Generally an obiter can be found by the judge saying things


such as in my opinion. or it is not necessary for me to
solve this conflict but etc. If you are asked to find one, just
look for a ratio (including quotes from authorities) which is not
needed.

33

Obiter are not binding, a case is only binding from its ratio.
Even an obiter statement of law coming from the Supreme Court
can be ignored by a District Court judge.

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Exercise:
District Court of Country X
January 21st 19XX
Scott J
The case that comes before me is of somewhat strange origin. It
concerns two neighbors Ms Smith and Mr. Green. Mr. Green is
asking for a court injunction to prevent Ms Smith from
continuing to pile dirt onto her land.
It seems that Mr. Green is very fond of the harbor view that his
house has, and he argues that when he bought his house it was
solely because of the view it has onto the ocean. His house is
about halfway up the Kupahi hills, but since last October this
view has been obstructed by Ms Smith and her dirt.
Last March Ms Smith and her 3 sons moved into the house
directly in front and below of Mr. Green. Since her sons love
BMX biking so much Ms Smith had endeavored to make them
an interesting bike track on the lawn. So she has piled a few
mountains of dirt and shaped it into a track.
The argument put forward by Mr Green has been that the dirt
piles rob him of his rightful view which is his property. He cites
the case MvA 1991 from the Court of Appeal in which Burker J
stated
for houses on a hill, the view is as much the
property of the owner as is the house itself. In
country X a hilltop view is a sacred thing and must
be preserved. Thus there exists a duty not to build
buildings which will obstruct this.

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Page

While I do accept that dirt is natural and not a building, I must


conclude that the dirt has been placed by man and is thus can be
considered man made. It is undeniable that in our law there is a

34

This stance is found in many similar cases as country X has a


long history of protecting hilltop views.

duty imposed on people to ensure that they do not obstruct the


view of hilltop house owners. It is an ancient principle based on
their right to enjoy their view.
I therefore find in for Mr Green and order that the dirt must be
removed until it does not obstruct.
While it is not directly related to the current case, I believe I
should touch on the relationship with trees. Even if a person
plants trees on their land which obstructs the view of
neighbours, it cannot be said to be manmade and the law
imposes no duty of care....

Questions:

35

What court is it in?


What is the procedural history?
What are the material facts?
What is the issue?
What is the ratio?
What is obiter?

Page

1.
2.
3.
4.
5.
6.

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Distinguishing

Answers from lesson 10:


1. District Court
2. It is being heard at first instance
3. One neighbour has obstructed the hilltop view of another
neighbour with a manmade structure
4. Whether in law, if a neighbour obstructs a hilltop view of
another neighbour with a manmade structure; is there a
duty to remove the structure.
5. In law if a neighbour obstructs a hilltop view of another
neighbour with a manmade structure; there is a duty to
remove the structure. Because the hilltop house owners
have a right to the view that they have bought with the
house.
6. Even if a person plants trees on their land which
obstructs the view of neighbours, it cannot be said to be
manmade and the law imposes no duty of care

Today:
Today we will look at the idea of distinguishing a ratio. This is
another exam ability that you will almost certainly need. There
is lots of information in the coursebook about how to argue
against the application of a ratio or to counter an analogy. You
wont really need to know this stuff, its more suited for the
actual arguments that the lawyers themselves make.

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36

This course is focused on the thought processes and logical


reasoning of the judges, thus distinguishing is basically finding
an excuse not to use a ratio.

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Distinguishing:
Distinguishing a ratio is when a judge decides not to apply a
ratio from a previous case onto the current case. There are
various reasons for this and various ways to do it, but the most
common one is simply that the ratio does not fit.
Can a ratio describing proper engine maintenance
for a train be applied onto a case about a plane?
What you need to understand is that a ratio is either applied or it
is distinguished. If a judge looks at a previous case and decides
that the ratio is acceptable he applies it onto his current case and
uses it to make his decision. If he decides that it is unacceptable
then he will distinguish it, find a different ratio or create a new
one.
Advice:
In a test or exam you will most likely be given 2-3 conflicting
rationes from various levels in court hierarchy and a case which
you must solve yourself. At that point you have to choose which
ratio you believe should be distinguished and which should be
applied. Or if you feel none are valid you can distinguish all
three and create your own ratio.

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Dont distinguish all supplied ratio unless they are clearly


wrong or inapplicable to the case.
Dont try to create an amalgamation of all the rationes
unless you are sure they are all applicable and can be
combined (there may be marks for well reasoned
distinguishing)
Beware of any rationes that seem on point but deal with
vastly different law, usually at least one will be a trap.

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You will be told: there is no strictly wrong answer and the


lecturer will accept application/distinguishing of any of the
rationes so long as you make well reasoned logical arguments.
While this is certainly true, I recommend you exercise some
caution:

Be mindful of the hierarchy of the courts. It is unlikely you


will be given any 100% binding precedents, but check for
it anyway.

Distinguishing Methods
You will learn 8 reasons that a ratio may be distinguished and
therefore not applied. This is one of the few times you will ever
have to memorize something in this course, so make sure you
know these.
1. Differences in the facts = the previous case deals with
facts that are vastly different from the current case. Thus
the ratio is not relevant.
E.g. Ratio of a murder case being used in a shoplifting
case.
2. Differences in the issue = the question of law between the
two cases is significantly different so that the cases cannot
be compared. Consider Bowers v Hardwick and Texas v
Lawrence that you learnt in Law121.
3. The earlier statement of law is obiter not ratio= only a
ratio binds as precedent. If you read the earlier statement
ad decide that it was obiter then it can be ignored.
E.g. In the lesson 10 practice case there was an obiter
about trees as part of the judgement. If that was referenced
in another case the judge could declare it as obiter and
ignore it.

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38

4. That the previous decision was wrongly decided = It


would take courage for a lower level judge to say this
about a Supreme Court decision, but he can argue that the
principle of law has been misapplied or was made in
ignorance of other factors.

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5. That the previous decision is persuasive only = If the


decision has only persuasive authority it can be ignored.
E.g. any decision from another country is only persuasive
in NZ
6. That there have been changes to the principle of law since
= this is an argument that times have changed and the
decision is no longer correct.
7. Changes in local circumstances = this is an argument that
in the area related to the case there are significant
circumstances that the ratio is not applicable.
E.g. it is very dangerous to stop your car at night in this
area, so running a red light may be excused.
8. Consideration of policy or fairness = this form of
distinguishing also requires a certain amount of courage. It
is saying that it would be unjust to apply the previous
ratio. So it must be set aside.
E.g. an ancient ratio which says it is okay to hit your wife
on a Thursday.
I recommend whole heartedly that you know each of those 8
ways to distinguish. The most common are clearly 1 and 2 with
8 being something of a last resort when the judge just doesnt
like the ratio.
Exercise:

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39

Review and get yourself comfortable with everything


until now. We will be putting it all together soon.

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Practice Case
Today we will try to put all the things we have done so far into
practice.
Just as a checklist, you should be able to:
figure out the position of the court and who it obeys
find the material facts of the case
write an issue that includes those material facts
write a ratio that answers the issue
distinguish a case and notice when judges do so
Remember that if a case/ratio is not distinguished it is applied.
Todays case is a much longer one, but it is important you start
learning to sift through cases quickly.
Practice case:
High Court of Country X
25th May 20XX
Anderson J
This case has arrived before us on appeal by the plaintiff.
Though there were numerous issues which required resolution
this appeal is only on the charge of assault.
Before issuing my judgment I will briefly cover the outline of
this case and then the relevant law which supports such a
decision.

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Page

Mr Butters has been protesting the new highway route 56 for


some time. His stance has been that the new route of the

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The facts in this case are rather difficult to determine and it is


clear that neither side have been completely honest about their
own guilt. However I believe that the structural facts as
described in the District Court are at least trustworthy.

highway will cut through native Country X swampland and


harm the environment.
In support of his argument he has been sending newsletters to all
local residents, and putting up protest posters throughout town.
Despite this considerable effort however he has been unable to
rally anyone to his cause.
It seems then that on October 15th he held the March of Swamp
Freedom down the main road and outside the council office.
Witnesses have said that he was sometimes joined by young
people but for most of his protest Mr Butters marched alone.
Evidence shows that while marching he sang rude songs about
the current mayor and ended up shouting angrily at the council
windows. However there is no evidence that he was not peaceful
about this protest, nor is there any that he attempted to enter the
council office.
After about an hour of his protest local policeman Mr Burn
arrived and told Mr Butters that he would have to leave. It
seems that they then got into a heated argument for roughly 1
hour. At the end of said argument Mr Butters is said to have
yelled You fascist pig officials, all you do is hide behind your
stupid pig police and kill our beautiful swampland. Mr Burn
seems to have taken great offence at that statement; as a result
he hit Mr Butters with his baton and chased him from the area.

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Page

In R v Hamil the Court of Appeal found that an officer can use


his baton as an offensive weapon in the course of his duty to
protect civilians from an armed offender. While I do
acknowledge the precedent strength of this decision I believe
that the facts are wildly different. Mr Burn may have been in the
course of his duty, but there is no suggestion that Mr Butters

41

In his defense Mr Burn referenced R v Hamil 1983 and R v Cox


1678 which allow a policeman to use force in the course of his
duty. These arguments were accepted by the learned District
Court judge who found that Mr Burn was in the course of his
duty and the force applied was not unreasonable. I believe
however that the learned judge may have made an error in this
decision.

was armed or dangerous. The ratio of Hamil is clearly dealing


with a much more desperate situation.
I believe the same can be said of R v Cox which is a Supreme
Court decision, but from over 3 centuries ago. I believe that Cox
cannot still be a valid precedent on todays vastly different
society. Since Cox, there have been countless restrictions on
police actives and countless protections on citizen rights
introduced. It is undeniably a decision suited for a different
worldview, and has no strength of law these days.
For the above reasons I instead will source my decision from the
recent Queens Court decision in R v Crawford from Country Y.
Thomson J stated clearly that; the police are in society to protect
the citizens and may only use force in the course of duty when it
will create safety. Force cannot be used as deterrence or as a
motivation. I believe this to be an accurate statement of the law
and shall apply it to the current case. Mr Burn was clearly not
acting to protect citizens by attacking Mr Butters, he did so
simply to drive Mr Butters away. I thereby allow appeal on the
charge of assault

Questions:
1. What is the procedural history?
2. What cases are referenced?
3. What does Anderson J do with each case?
4. What are the material facts?
5. What is an issue?

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42

6. What is a ratio?

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Extending

Answers from Lesson 12:


1. It is on appeal from the district court
2. R v Hamil, R v Cox, R v Crawford
3.
a. R v Hamil-Distinguished on the facts
b. R v Cox- Distinguished based on changes in society
c. R v Crawford- Applied it to the case
4. An police officer hit a man who was protesting peacefully.
The attack was not to protect anyone, only to cause the
man to leave. The police officer is charged with assault.
5. Whether in law, if not for protection of civilians, a police
officer hits a person who is not dangerous; is that police
officer liable for assault.
6. In law, if not for protection of civilians, a police officer
hits a person who is not dangerous; that police officer is
liable for assault. Because the police are to protect
civilians and force may only be used to create safety.

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Today we are going to look at the activity of extending a ratio,


and how we can start taking a ratio of a previous case and
moulding it to fit onto the facts of the current case.
It may seem like a long lesson but if you can master this stuff
then you will be pretty much set for the common law section.

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Today

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Extending:
Extending is the process where a judge takes a rule from a
previous case and widens it, increasing the scope of the ratio.
This is the main development tool of the common law and
allows specific rules to eventually become guiding principles.
Consider this progressive development of law.
1.
2.
3.
4.

Touching a person with malice is a battery


Hitting another person in anger is a battery
Touching another person is a battery
The least touching of another person, if unjustified, is a
battery.

We have taken a rule that was originally made to stop people


from punching each other and extended the scope enormously.
The newest version of the rule will prevent a doctor from
making an unconsented operation of a patient. A far cry from
the original scope.
Dont go crazy with extension. The common law develops
slowly and deliberately. As often as not a judge will refuse to
make a ratio wider, because he doesnt want to open a litigation
floodgate.

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As far as the aims of this part of the course you dont need to
worry about large extensions to the law and the development of
legal principles (worry about that when you become a judge).
What you will need to do by the test is; be able to take a ratio
from 1-2 provided cases and decide if they need to be enlarged
to fit onto a provided fact situation.

44

For example, if you have been supplied with three cases that say
we believe it is okay to drink water, but is illegal
to drink Pepsi.
You may be able to argue that the rule can be extended so that it
is also illegal to drink cola. But you should be careful if you are
considering arguing that it should cover all non water drinks.

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Practical:
The best way is to see how the pros do it and to try your own
hand. This section will almost certainly be a very similar format
to your incoming test. Read each case and then answer the
questions.
All in all you should be able to do this whole exercise within
60mins.

--------------------------------------------------------------------ROBSON v. HALLETT
QUEEN'S BENCH DIVISION 1967
LORD PARKER, C.J.: On Jan. 7, 1966, at a magistrates' court
sitting at Gateshead, the appellant Dennis Robson was convicted
of assaulting a Sergeant McCaffrey in the execution of his duty,
also a Police Constable Paxton, and thirdly a Police Constable
Jobson. The appellant Thomas Robson was also convicted on
one charge, namely, of assaulting P.C. Paxton in the execution
of his duty. Both the appellants appealed to quarter sessions for
the county of Durham, who upheld the conviction of the
appellant Dennis Robson

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For my part, it is no doubt true that the law is sometimes said to


be an ass, but I am happy to think that it is not an ass in this
respect, because I am quite satisfied that these three police
officers, like any other members of the public, had implied leave
and licence to walk through that gate up those steps and to
knock on the door of the house.

45

What is said in this case, and this is really the foundation of


counsel for the appellants' argument, is that all three police
officers were trespassers ab initio; having arrived at the garden
gate, although up till then they were acting in the execution of
their duty, making inquiries into an offence committed that
night, yet the moment when they set foot
onto the steps leading up to the front door they were all three
trespassers.

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We are not considering for this purpose the entering of private


premises in the form of a dwelling-house, but of the position
between the gate and the front door. There, as it seems to me,
the occupier of any dwelling-house gives implied licence to any
member of the public coming on his lawful business to come
through the gate, up the steps, and knock on the door of the
house.
Counsel for the appellants has stressed the words used by
ATKIN, L.J., in Great Central Ry. Co. v. Bates. In that case, a
police constable, seeing the door of the defendants' warehouse
open after dark, and in order to see that everything was right,
entered the warehouse and injured himself. It was held that he
had no legal right to enter being neither an invitee nor a
licensee. ATKIN, L.J., in the course of his judgment said this
"Now it appears to me that he had no right to enter
these premises at allIt can hardly be suggested that
the right exists in respect of a dwelling
houseunless he has a warrant, or in cases of
felony, it appears to me quite impossible to suggest,
merely because a constable may suspect there is
something wrong, that he has a right to enter a
dwelling house either by opening a door or by
entering an open door or an open window and go
into the house.

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46

I hope that nothing that I am saying will be thought in any way


to detract from what ATKIN, L.J., said; but we are not here
considering the right to enter the front door of the house but
merely the right to go in at the garden gate and go up to the front
door.
It is to be observed that what I have said is fully in accord with a
recent decision of this court in McArdle v. Wallace 1964. It is
unnecessary to go into the facts of that case; the only question in
that case was whether that implied leave and licence had been
revoked by the occupier's son. Accordingly, in my judgment, all
three police officers were lawfully on those premises while they
were outside the house

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Questions (1):
1.
2.
3.
4.

What are the material facts?


What is the issue of the case?
What is the ratio?
What case did the appellants base their arguments on, and
how did the judge treat that case? Do you agree with his
decision?

Now look at the next case:

Attorney-General v Hewitt - [2000]


High Court Wellington
15, 16 September; 17 December 1999
Randerson and Neazor J
The appeal raises issues about the exercise of police powers of
arrest and rights of entry onto private property
including:
(a) The scope of the implied licence to enter private
property for the purpose of speaking to the occupiers.

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They returned to Mr Hewitt's mother's home where an


altercation developed between them. Mr Hewitt was concerned
about Ms Gillies' ability to drive and about their son's safety.
During the course of a struggle, Mr Hewitt placed Ms Gillies in
a sleeper hold' which is similar to a headlock and is designed

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Mr Hewitt and his de facto partner Michelle Gillies had


occupied a flat in Ruapehu St, Paraparaumu for about 18 months
prior to a domestic incident on 18 June 1993.
It is common ground that they were joint occupiers under a
tenancy agreement with the owner. They had a young baby who
they left with Mr Hewitt's mother on the night in question while
they went to a hotel.
They left the hotel about 11.45 pm after each of them had been
drinking.

to stop the blood supply. This rendered Ms Gillies momentarily


unconscious. Her stepfather was also present by this time and
took both Ms Gillies and the child to his
home. From there Ms Gillies telephoned the police.
The two police officers then drove to the flat at Ruapehu St
arriving at about 12.30 am. Using a cellphone they telephoned
the residence from the patrol car. When there was no response,
the officers knocked on the front door of the house. As there
was still no response they knocked on a window which they
believed to be that of the master bedroom. Again there was no
response so they left the property to return to see Ms Gillies who
had remained with her son at her stepfather's home. Mr Hewitt
admitted in evidence that he knew the police officers were
attempting to contact him at this stage. He deliberately lay
low, and did not respond to the telephone calls or their
knocking at the house. The Judge found this was tantamount to a
refusal of entry by Mr Hewitt.
For our part, we do not consider the lack of response to the
officers' inquiries could reasonably be viewed as a refusal of
entry. At best, the appropriate inference was that Mr Hewitt was
attempting to avoid detection by pretending he was not home or
was asleep. The evidence fell far short of an unequivocal refusal
of entry communicated to the police officers by the occupier.
Mr Pike, for the appellant, submitted that the learned Judge had
erred in law in deciding that both the first and second visits to
the property constituted a trespass.

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We are satisfied that the Judge erred in law in his conclusions


about the scope of the implied licence. Robson v Hallett has

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In relation to the first visit, the Judge concluded that any implied
licence for the police to visit the property was of dubious benefit
having regard to the lateness of the hour, the lack of urgency,
and his conclusion that they had exceeded the geographic
limitations of the licence in walking around the side of the house
and knocking on the window. Referring to Robson v Hallett the
Judge held that the police had no greater licence than to enter
the front gate of a private residence, proceed directly to the front
door and there to make one's presence known by knocking or
ringing the bell.

long been accepted in New Zealand Courts as authority for the


proposition that a member of the public has an implied licence
to enter onto private property for the purpose of communicating
with the owner or occupier
Plainly the implied licence should not be construed as extending
beyond reasonably strict limits, bearing in mind privacy
considerations and the sanctity of the home.
There may also be geographic limitations on the implied licence
as evidenced by the decision of the Court of Appeal in R v
Bradley. One of the issues raised there was whether the implied
licence authorized police officers to clamber up over a balcony
and enter via ranch slider doors elevated some feet off the
ground.
Delivering the judgment of the Court, Thomas J discussed the
topic of implied licences at pp 367 to 369. After reference to
Robson v Hallett His Honour observed that the implied licence
extends no further than is necessary to permit communication
with the occupant of the premises
It was held that the implied licence to enter must be defined in
terms of what is reasonable to enable the police officer to
communicate with the occupier of the dwelling-house. This is
not necessarily limited to knocking on the front door but might,
for example, include communicating with a householder who
was observed in the garden or yard or who could be seen in the
house through a door or window.

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While 12.30 am might, in some circumstances, be regarded as


an unreasonable hour, it was within half an hour at the most
from the time of the incident in question. Mr Hewitt was plainly
still awake and we do not regard the hour as unreasonable at the

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We are satisfied that the officers had an implied licence to enter


onto the property, to knock at the front door and, in the absence
of any response, to knock on the window which they believed to
be that of the bedroom occupied by Mr Hewitt. There is no
evidence that the officers did anything other than approach the
window which was readily available
at ground level.

time of the first visit in all the circumstances of the case


including the desirability of the prompt investigation of
complaints of this nature.
Questions (2):

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5. What is the current understanding of Robson v Hallett ?


6. How has it been extended since 1967?

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Applying A Ratio

Answers from Lesson 13:


1. Police officers were lawfully conducting an investigation
and entered the plaintiffs property through the path to the
door. Plaintiff sues in trespass.
2. Whether in law, a police officer doing lawful business can
enter a persons property until the door in order to make
inquiries.
3. In law, a police officer and any other person doing lawful
business can enter a persons property until the door to
make inquiries. Because there is an implied licence to
enter the property and knock on the door.
4. They base their arguments on the case of Great Central
Ry. Co. v. Bates. But the judge distinguishes the case on
the facts. I agree with his decision, it was a clearly
different fact situation with a police officer breaking into a
warehouse at night.
5. authority for the proposition that a member of the public
has an implied licence to enter onto private property for
the purpose of communicating with the owner or occupier
6. It has been extended beyond just going up the path to
make inquiries at the front door. The emphasis is on entry
in order to facilitate conversation.

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Now we are going to work on the final skill for the common
law section of the course. After this is it just a matter of putting

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Today:

the skills that you have gained from the previous lessons to
work in the problem situations provided.

Applying the Law:


Just so you dont get confused, a better title for this part of the
course would be evaluating the law. It is about making decisions
regarding a previous ratio and how they can be used to solve a
different fact situation.
This final skill is to critically evaluate and use the ratio from
other provided decisions. Simply, you will discuss whether or
not the previous law can or should be used in the current fact
situation. This is when your decision about the scope of your
ratio matters.
You will need to consider whether the ratio can be
distinguished, extended, or just applied as is. Whatever you
decide in each situation will almost always be fine, but you must
argue it logically and with regard to common sense.
You will discuss how each case fits and be expected to consider:
1. court
2. date
3. jurisdiction
4. relevance
5. purpose or
6. any other material factors

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Then you must make a decision as to how the ratio should be


used. So long as your argument is logically based (not an
unreasonable twisting of reality); then you will get the same
marks whether you distinguish or apply a ratio. But if you dont
make a firm decision one way or the other then you have not
applied the law and will lose marks. Dont sit on the fence.

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Example:
This is a long decision, but it isnt especially complex and is
worth reading a few times to properly understand.
Read through the judgement, and then look at how the Judge
treats Wilkinson v Downtown- a case which clearly has similar
facts and a ratio that the judge believes can fit the case.
Then compare that to his discussion of Victorian Railway
Commissioners v Coultas and the reasons and logic that allow
him to distinguish the ratio. Especially against its precedent
strength.
----------------------------------------------------------------------Stevenson v Basham [1922] NZLR 225
Supreme Court, Auckland
7 October; 17 October 1921
Herdman J
The facts upon which the respondents relied in the Court below
are simple.
During the evening of the 3rd December, 1920, about 8.15, the
appellant visited a dwelling-house which was occupied by
respondents and demanded that possession of the premises be
given to him.

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There is evidence which goes to prove that, although the threat


to burn down the house was not made in Mrs Basham's
presence, she nevertheless heard the appellant make the threat,
and in consequence became seriously upset.

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There is evidence which justifies a finding that in the course of


an appeal which appellant made for the surrender of the
premises he said to Mr Basham, "I'll have you out within
twenty-four hours. If I can't get you out I'll burn you out." When
this statement was made Mrs Basham was in bed. She had not
been feeling well and had retired to her room, presumably
because she felt, indisposed. At this time she was pregnant,
having been in that condition for about, three months.

Mr Basham said that when he saw his wife after his interview
with appellant she was sitting on her bed and was hysterical. It
would appear that she was genuinely afraid that appellant would
carry his threat into execution. That Mrs Basham was in a state
of distress bordering on hysteria about something that had
happened is made plain by the evidence of Mr Carr, who was in
the house that night, and by Mrs Hepburn, a neighbour who was
called in to look after Mrs Basham.
On the following day Mrs Basham was unwell and had a
temperature, so Dr Pettitt was called in. The doctor found that
she was threatened with a miscarriage, and ordered her removal
to a hospital, where, in due course, a miscarriage took place. It is
contended that the appellant's conduct was responsible for this
misadventure, and the learned Magistrate found that the
miscarriage was caused by the fright which appellant's threat to
destroy the house had given her.
In the light of the statement made by the doctor who was called
in that "undoubtedly the fright did prejudice her chances to a
serious extent" and of the other facts proved, I am not prepared
to hold there was not sufficient evidence to justify the
Magistrate in coming to the conclusion that appellant's conduct
was responsible for the mischief.

...
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A consideration of the evidence satisfies me that the Magistrate,


after hearing the witnesses, was entitled to hold that a threat to
burn down the house was in fact made by appellant; that Mrs
Basham, although not actually present, heard the threat, and
that, because of the threat and appellant's noisy behaviour, she
suffered a violent nervous shock which, in her then delicate
state, produced serious physical consequences.

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It is true that she had not been feeling well before appellant's
conduct disturbed her, but I have not been able to discover any
evidence which proves that she had gone to bed because
symptoms of a miscarriage had appeared, or because she had
any reason before Stevenson made his threat to suspect that a
miscarriage was imminent. But even if a miscarriage was
threatened before Stevenson frightened her, there is, I think,
evidence which would entitle a jury to infer, if they thought fit,
that Stevenson's conduct accelerated the trouble.

The foregoing being the facts upon which respondents base their
claim, what are the principles of law applicable in such
circumstances?
...
A case which illustrates the principle that physical injury which
is the consequence of a shock deliberately caused by a statement
made by the defendant is that of Wilkinson v Downton, the
headnote of which reads as follows: "The defendant, by way of a
practical joke, falsely represented to the plaintiff, a married
woman, that her husband had met with a serious accident
whereby both his legs were broken. The defendant made the
statement with intent that it should be believed to be true. The
plaintiff believed it to be true, and in consequence suffered a
violent nervous shock which rendered her ill. Held, that these
facts constituted a good cause of action."

The one serious difficulty about the case is created by a decision


of the Privy Council in Victorian Railway Commissioners v
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In the present case when he angrily declared that he would burn


the house down he accepted the risk that those who heard him
would take his word seriously and would believe that he
intended to carry out his threat. He went to the house in a fit of
temper. He became abusive, he talked in a loud voice, and,
although he knew that Mrs Basham could hear him, he was quite
careless about the consequences which his unjustifiable conduct
might have upon the nervous organizations of persons who at
the time were living on the premises.

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The defendant represented that the plaintiff's husband had met


with a serious accident intending that the statement should be
believed. In the present case Mr Stevenson may or may not have
intended in his reckless mood that his threat to burn down the
house would be believed. Whatever his intention was, Mrs
Basham heard what he said and did in fact believe that his threat
was serious. The inference is that she feared for her own safety
and for the safety of her children. If on all other grounds
appellant is liable, he cannot escape because Mrs Basham
erroneously interpreted his words. From the reported decisions,
as I understand them, it appears to be settled law in England that
if a physical injury follows fright or shock caused either wilfully
or negligently, and the injury is the natural and direct
consequence of the fright or shock and arises from a reasonable
fear of personal injury, a defendant is liable in damages.

Coultas, a decision which, in the course of the last thirty-three


years, has been criticized adversely in several judgments of
great weight.
The facts of the case were these: The respondents, James and
Mary Coultas, together with John Wilson, a brother of the wife,
were driving home in a buggy from Melbourne to Hawthorn,
which is near Melbourne. They had to cross a level crossing on
the line of railway from Melbourne to Hawthorn. When they
came to it the gates were closed, and the gatekeeper came and
opened the gates nearest to them, and then went across the line
to the gates on the opposite side. The respondents followed him,
and had got partly on to the up line (the farther one) when a train
was seen approaching on it. The gatekeeper directed them to go
back, but James Coultas, who was driving, shouted to him to
open the opposite gates, and went on. He got the buggy across
the line so that the train, which was going at a rapid speed,
passed close to the back of it and did not touch it. As the train
approached Mary Coultas fainted, and fell forward in her
brother's arms. The medical evidence showed that she received a
severe nervous shock from the fright, and that, the illness from
which she afterwards suffered was the consequence of the fright.
Upon the facts as stated above their Lordships decided that
"damages arising from mere sudden terror, unaccompanied by
any physical injury but occasioning a nervous or mental shock,
cannot under such circumstances be considered a consequence
which, in the ordinary course of things, would flow from the
negligence of the gatekeeper."
It is difficult to understand this pronouncement, because, it
appears that not only was there a mental shock caused by fright,
but it also appears that the mental shock produced delicate
health and impaired memory and eyesight.

Although modern opinion in Great Britain seems to be


unanimous in holding that the statement of the law in the
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In Coyle or Brown v John Watson Ltd Lord Shaw of


Dunfermline, in the House of Lords, states that the case can no
longer be treated as a decision of guiding authority...

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In other words, the Privy Council appears to have decided that,


because physical injury was not contemporaneous with the
shock which Mrs Coultas received, she was not entitled to any
relief. As I have already stated, this opinion has been
unfavourably reviewed.

Victorian case is either erroneous or obsolete, we in New


Zealand are no doubt bound to follow their Lordships' judgment
unless the facts of the present case can be distinguished from the
facts of the case which the Privy Council decided.
The Privy Council judgment is founded on the assumption that
the sudden terror which Mrs Coultas experienced was
unaccompanied by actual physical injury.
In the present case I think that there is evidence from which it
can be inferred that a physical disturbance of some kind
accompanied the shock which Mrs Basham received. About this
kind of thing I have no knowledge, but, looking at all the
circumstances of the case, I think that if a jury found that
Stevenson was responsible for the shock which Mrs Basham
got, they would also be entitled to hold that the premature
expulsion of the contents of the uterus commenced immediately,
and that therefore shock to the system was accompanied by
actual physical injury.
For these reasons I hold that the case is distinguishable from
Victorian Railway Commissioners v Coultas, and that the
Magistrate's judgment was right.
The appeal will accordingly be dismissed, with costs 7
7s.Appeal dismissed.
---------------------------------------------------------------------Exercise

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D decides to go and talk to P about the noise anyway; after all


he drove for 1hour through Auckland traffic just to get there. As
D is walking up the drive he sees P at the window of his house
who yells No police allowed and Go home Pig. D has hurt
feelings and angrily storm up to the front door to tell P about the
complaint.

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Policeman Dan is going to investigate noise complaints at Pats


house.
On the way there he notices that there is a party going on, but
that it doesnt seem to be dangerous or illegally loud.

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P doesnt answer the door, but D waits about 20minutes before


going home angry.
Pat is now suing Dan saying that he trespassed!
On your understanding of the law in the previous lesson
(extending):

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58

1. Do you think Dan will be okay?


2. Dan thinks that the ratio should easily cover his situation,
and if not it can simply be extended, is he correct?

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Using the IRAC Method

Answers from Applying Lesson:


1. On the law you studied I do not believe that Dan will be
okay. A-G v Hewitt and Robson v Hallett are both
principles that there is an implied licence to enter a
property on legitimate business. There is no doubt that
Dans business was legitimate, but there is an important
material difference; in this case his licence to enter was
expressly removed.
2. It is impossible for there to be an implied licence if you are
specifically told that you should not come here. Further,
there it is clear that even after his licence was revoked Dan
did not leave and stayed on the property for 20minutes.
Most likely he will be found liable for trespass.

As described above, I do not believe that the ratio in A-G v


Hewitt or Robson v Hallett can cover Dans situation. I
also do not believe that it can be extended to cover this
fact situation. Extension to this case would mean a person
could not remove an implied licence even by directly
telling someone to leave, this is illogical.

Today:

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Applying is the process of looking at a fact situation,


considering all the relevant law and then putting that law onto
the facts to determine the outcome of the case.

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Today we are going to take the final step forward and combine
all the individual skills that you have learned so far into one
judgment.

This is a foundational skill that you must be able to do for the


rest of your law career. Infact, each of the 2nd year papers will
assume 100% that you can do this process and will thus require
it in every test and exam question.
It should be obvious at this point, but just so that it is very clear.
When you are answering a problem question in a law test or
exam; you do not give an essay answer. Law121 was all about
writing essays for various topics, Law131 is not like that.
You will be given a problem situation and required to apply a
legal analysis.
Process:
If you are panicking, then relax it is much easier than you expect
and makes structuring answers simple and fast.
We will be using the IRAC method. Your Lecturer may teach
ILAC or CLEO, but they are all exactly the same.

The process is:


Issue
Relevant Law
Application
Conclusion
At this point I hope you can see how the skills so far will be
implemented in answering the problem questions.
ISSUE: <Skill= Legal Issue>

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The issue will act as a heading and the subsequent sections will
find an answer and conclusion for that question. The important
thing then is, IF YOU HAVE A CASE WITH TWO ISSUES; YOU WILL RUN
THROUGH THE ENTIRE IRAC PROCESS TWO TIMES . Dont try to
combine issues or answer more than one at once. Remember
each issue has one ratio.

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State the legal issue of the case. Exactly the same as you have
been doing since lesson 8. (Whether in law...etc)

RELEVANT LAW: <Skill= Ratio>

At this point you have stated the issue. Now you need to find the
legal rules that can answer that question.
What this means in a practical sense for you is to list the
provided cases and explain their ratio. In the test you will be
provided with 2-3 cases that cover a somewhat similar fact
situation. List each of them and explain what the rule of each
case was (ratio).
Dont discuss the precedent value or anything yet just state the
case name, a few of the material facts and then explain its ratio
(including reason).

APPLICATION: <Skill= Distinguishing/Extending/Applying>

Now you will consider each case individually and discuss:


Precedent value, jurisdiction, if it is current law, how similar it
is to the facts, etc.
Then you will give an opinion as to if it should be distinguished
applied or extended. If you are given 3 cases then you will
probably have to distinguish at least one, but I dont think you
will ever be expected to distinguish all of the provided cases.

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My only caution is that you should always go with the most


logical answer; they do not want you to pretend to be a
persuasive lawyer like you saw on TV. Dont force a clearly bad
ratio to be applied or a clearly good one to be distinguished.
Even if you are supposed to be advising a client, a real lawyer

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Dont get too hung up on this section, argue logically with


consideration to the current facts. So long as your argument is
logical and makes sense then for the most part it wont matter
what you choose to do here. But stick to the circumstances and
facts of the current case, dont go bringing outside political
things into your decision. Never invent new facts.

will tell them that the case is hopeless rather than try to persuade
an illogical answer.
CONCLUSION: <Skill=summarizing all the previous info>

This is the final point and the one that every B Level student
forgets to include. If you dont spend a paragraph or two
concluding then you havent answered the question and will lose
easy and valuable marks.
Just say something like:
As such, I am prepared to conclude that X will be
guilty of Y. The law on point is clear and is
binding/of such persuasive value that I do not feel I
can or should depart from it...
Come down on one side or the other. Do not sit on the fence and
be wishy washy, if the point is finely balanced then say
something like:
It seems that this point could be properly argued for
either side, on balance however I believe that X is
the stronger argument because...(rational policy
reason or idea)

FINAL SUMMARY:

If there is more than one issue then you will have gone
through the IRAC process for each separate issue and then
will give a final conclusion of the argument as a whole.
At the very end, you may pick up bonus marks for
including the following:

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B) If you are advising a client (in this case Anne)


Anne should be so advised.

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A) If you are delivering a judgment:


Judgment for the Plaintiff/Judgment for the
Defendant.

If you can do this successfully then you will get an A+ for this
part of the course, it is really just a combination of everything
we have been working on.
Example of IRAC Structure:
So your answer to a problem question should look like this:
--------------------------------Issue 1
Whether in law....
Relevant Law:
The first relevant case is A v B which was about...the rule that
the judge decided was XYZ.
However ns the recent House of Lords decision in C v D, the
judgment was that ZYX in such circumstances. This case was
concerning a situation where...
Application to the facts of this case
A v B is clearly on point and is dealing with very similar facts. I
am not convinced that the fact that the colour of the hat was
green can distinguish it from the present case. A v B is only of
HC authority however and as such is only of persuasive.
But with regard to judicial comity and not wanting to upset the
law without reason, I believe that the principal is good law and
can be applied to the current facts.

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C v D however is covering what are in my opinion very different


facts. In this case...Being from an overseas jurisdiction it is not
binding on any NZ court, but is of highly persuasive authority.
However, I am not convinced that the ratio was intended to
cover the current fact situation.
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Conclusion
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As such it seems to be fairly clear that in the current


circumstances A v B must be applied to the current facts, and it
is thus clear that...
Issue 2
Whether in law....
Relevent Law:
Etc etc
Application to the Facts:
Etc etc
Conclusion
Etc Etc
Final Summary:
Overall it is clear that a claim cannot be sustained against....
I make the following orders:
P shall Q
R must S until V

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Judgment for the plaintiff

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Putting It All Together:

Today:
From now the best thing you can do is hone your skills and keep
practicing on finding and using a ratio on any case/examples
provided. The most important thing is that you can find and
write a ratio from a given case. If you can do that then the very
worst grade I can imagine you getting is a B.
I will provide some advice and some more practical examples,
then next lesson I will discuss test prep.
Advice:
I said it at the start but it bears repeating, the cases you study in
class are of no value except for showing you how real judges
find and use a ratio.
Dont waste time trying to remember any of the cases or any
rule that may have developed over a series of cases. The actual
test and exam case should almost certainly cover a different area
of law.
Also dont be concerned if you dont understand the nuances of
certain rules, for example the Donoghue v Stevenson negligence
rule if you cover it. You will learn what it means next year when
you study torts, for now all you need to be able to do is find how
the judge explains it and repeat his logic onto new facts.

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As a rule of thumb, if you have been given 2-3 cases that cover
the same general principle, then the easiest way to work out the
ratio of the main case is to see how it is understood and used in
the following cases.

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Ie) if the main cases references boats but you are not sure
if they make up part of the issue or are immaterial then
you can get a good hint if two similar cases dont cover
boats at all.
Take your time working out the issue, write down all the
material facts, think again if each is really necessary, and then
draft a few issues that cover all of those facts. I always would
spend the first 5-10mins drafting and making sure my issue (and
ratio) were watertight. Once you have both of those sorted then
there is very little to do but just write all the filler stuff for an
answer.
When you think you have the issue, ask yourself; does the result
of the case turn on the answer to this question? If yes, then
great! If not then you are covering obiter or there are more
issues.
I doubt you will be given a case that contains much (or any)
obiter, but remember; any discussion that doesnt solve the case
is obiter and not binding.

Practice:
<Note: Assault in tort (civil law) is a threat of violence; it
doesnt require harm>
-----------------------------------------------------Police v Greaves - [1964] NZLR 295

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The facts were these -- a Mrs Tolley who occupied with her
children a State house situate in Kowhai Street, Naenae, called
on the police for help after she had been attacked by the
respondent who also resided in the house.

66

Court of Appeal, Wellington


6, 8 November 1963
North P., Turner J., McCarthy J.

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It appears that he was somewhat inebriated. When two


policemen arrived, the respondent came to the door with a
carving knife in his right hand poised at waist height and
pointed towards the leading constable, and said, "Don't you
bloody move. You come a step closer and you will get this
straight through your --- guts." The leading constable continued,
"The defendant was in a maniacal mood and was not prepared to
listen to any reasoning at all. He said, 'Get off this --- property
beforeyou get this in your guts.'"
The constables, faced with this threat, withdrew to obtain further
assistance.
The appellant was convicted of assault in the Magistrate's Court
but the conviction was quashed in the Supreme Court on the
ground that the threat made by the appellant was a conditional
one and did not constitute an assault.
Hutchison J., who expressed the opinion that as the threat was a
conditional one, the police officer had no reasonable ground to
believe that an assault was imminent.
An assault is defined by s. 2 of the Crimes Act 1961 to mean -the act of intentionally applying or attempting to
apply force to the person of another, directly or
indirectly, or threatening by any act or gesture to
apply such force to the person of another, if the
person making the threat has, or causes the other to
believe on reasonable grounds that he has, present
ability to effect his purpose;

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It is only necessary to recall the oft repeated threat of the


highwayman, "Your money or your life" to see that if a pistol be
pointed at the victim it would be idle to say that there was not a
threat to apply force to the person of another in circumstances in
which the person making the threat had, or at least caused the
other to believe on reasonable grounds that he had, present

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In our opinion, if the other conditions of the definition were met


-- as they undoubtedly were -- there is no reason why a
conditional threat should not constitute an assault. A threat in its
very nature usually provides the person threatened with an
alternative, unpleasant though it may often be.

ability to effect his purpose, and therefore that an assault had


been committed.
On the facts of the present case it was enough that the menacing
attitude of the respondent caused the police officers to retire. As
Lush J. said in Wood v Bowron (1866) L.R. 2 Q.B. 21, in
speaking of the kind of threat we are here concerned with: "It is
the very essence of threat that it should be made for the purpose
of intimidating or overcoming the will of the person to whom it
is addressed"
The present case is to be distinguished from such cases as
Tubervell v Savadge where the person from whom the threat
came made it clear that he had no present intention of carrying
out his threat. In that case the words used were, "Were it not
assize time"
With all respect for the view of the learned Judge, we do not
think that Read v Coker which was relied on by the prosecution
is distinguishable from the present case.
In Read v Coker the plaintiff, being in the defendant's workshop
and refusing to quit when desired, was surrounded by the
defendant's servants, who tucked up their sleeves and aprons and
threatened to break his neck if he did not go out.
It was argued that this did not constitute an assault, but the
Court was clearly of opinion that it did, Jervis C.J. saying, "If
anything short of actual striking will in law constitute an
assault, the facts here clearly show that the defendant was guilty
of an assault.

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Accordingly, we are of opinion that the appeal must be allowed


and the conviction and sentence entered by the
Magistrate restored. Appeal allowed.

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There was a threat of violence exhibiting an intention to assault


and a present ability to carry the threat into execution"
We can see no difference in principle between a demand that the
person threatened should retire and a demand that he should not
proceed further on his lawful occasions

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Questions:
Apply the law from above onto the following situations:
A)
I go into a bank waving a machine gun around and while
pointing it at the teller I say if you give me all the money and
dont call the police, I promise I wont harm you.
I then ride off into the sunset safe in the knowledge that I wont
be liable for Assault within the definition of s2 of the Crimes
Act 1961.
Am I correct?

B)
X and Z are brothers sitting in a park talking and making jokes.
As this is going on X makes a joke that really hurts Zs feelings.
In his anger Z balls his hands into a fist and looks X right in the
eyes. Z says If we were not family, I would kill you for saying
that.

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69

X is really scared and has gone to you for legal advice, advise
X.

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Test Prep:

Answers from Previous Lesson:


a) This fact situation is clearly analogous to Police v
Greaves, a threat is being made in order to get the desired
result, the situation is different but the material facts are
similar enough that the case really cant be distinguished.
Police v Greaves shows that a conditional threat, so long
as it gives the victim a reasonable apprehension of
imminent violence can be assault. On the facts, there was a
clear intention and assault to commit violence.
b) Police v Greaves shows that if there is an intention and
ability to carry out violence, the fact that a threat is
conditional is irrelevant. However, this case has a material
difference from Greaves and I believe that it must be
distinguished.
In Greaves, the defendant was saying if you dont do
scream I wont kill you, but here Z is saying I wont kill
you, it is not a conditional threat. This case is closer to
Tuberville v Savage where the defendant had no present
intention to commit violence.

Today:
This is the last lesson in the common law section of the course.
The goal is to give you some advice for how to approach the
questions in a practical sense.

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Good luck, so long as you have been following along until now
then I am sure you will do fine.

70

I will then provide an A+ answer from the common law section


of the 2010 exam.

Advice:
I.

Manage your time; this is the most important thing. Last


year the sole reason that anyone did poorly on the test was
simply because they mismanaged their time and couldnt
finish.

II.

But despite the above point, take it slow and draft your
issue and ratio. This is beyond important, read the exam
question carefully and really ask yourself what matters are
material.

III.

Then once the test starts, turn your answer book over and
draft your issue, keep doing this until you have one that
includes all of the material facts and will solve the case. I
would usually do about 3 drafts before I was happy and be
adding/removing material facts each time.

IV.

Question if there should be more than one issue, of course


every issue has a ratio, and every ratio has an issue.

Stick to the IRAC methodology; dont write an essay,


write a legal opinion. I really really recommend that you
have sub-headings for each section so it is obvious for
both you and the examiner what is going on at each stage.

VI.

You will cover it at the end of the course, but it is worth


mentioning that you should try and write in a way that is
easy to read even for non lawyersWhen you get to the
end of the course your teacher will may recommend that
you write like Lord Denning. Thus at the start of my exam
answer I have stolen one of his iconic paragraphs (dont
bother doing this it didnt seem to get me any bonus
marks).
Copyright 2011 www.GetIntoLaw.com

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V.

71

Once your issue is sorted then you can begin the actual
test, be fast but logical. Spell out your thought process at
each stage to show logical connections. If the examiner
can follow your reasoning and sympathise with it you will
generally be fine.

Sample Exam Answer:


The following is my answer to Question 4 of the 2010 Law131
Exam (Available at the library website).
I have not corrected any spelling or grammar mistakes in order
to provide an authentic sample.
The purpose of this is so that you can use to see if your style of
answer is on the right track. Most of the important information
is taught just before the test.
I dont want you to be like me and have to walk into the test
having no idea if your understanding of the course is correct or
not (especially since you most likely wont get your results back
until just before the exam).

2010 Exam Question 4:


a)
Whether in law, can a person who goes into another persons
property with hostile or competitive intent be considered a
trespasser.

The plaintiffs went to the defendants premises as


competition.
There was no criminal activity
They were psychologically compelled to be detained until
later released
Claim for false imprisonment

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b)

72

Whether in law, can a person who was psychologically


compelled to be detained without criminal charge, claim for
false imprisonment. Even without physical restraint.

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c)
In law, a person who goes into another persons property with
hostile or competitive intent can be considered a trespasser.
Because they are entering not as invited guests but as invaders.
In law, a person who is psychologically compelled to be
detained without criminal charge can claim for false
imprisonment even without physical restraint. Because a person
cannot have their freedom arbitrarily removed even without
force.
d)
Issue:
It was bluebell time in Auckland, and cricket at Eden Park was
the delight of all when this incident happened. The relevant
issue today is whether the tort of false imprisonment can be
claimed on a person compelled to go into detention at a store
office.
Relevant Law
The law on point here is Chaytor and Bird v Jones. I will
consider each in turn.
Chaytor comes from the supreme court of Newfoundland and is
thus not binding on any New Zealand court. However, given its
position I believe it is highly persuasive as an authority.
It could also be distinguished for being an older judgment.
However, if anything I believe that the rights to freedom that
Chaytor expresses have gotten stronger not weaker, it is this still
relevant.

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Page

The relevant ratio of Chaytor is; a person who is psychologically


compelled to be detained without criminal charge can claim for

73

Besides this, the material facts are very similar. There is in this
case a reasonable suspicion of shoplifting, which was not
present in Chaytor but because nothing was charged or alleged
during the detention, I do not regard that as materially
significant enough that I should deviate.

false imprisonment. Because a person cannot arbitrarily have


their freedom constrained.
Bird v Jones is an older case and comes from the Queens
bench. Thus it is not binding on any New Zealand court. It also
does not carry the same persuasive power as Chaytor. However
it was a decision which was upheld in the Chaytor judgment and
there seems to be no material social reason that I should
distinguish it. The principle of Birds is; there can be restraint of
freedom without touching the person.
Application to the facts
Thus with that law applied to the present case, Ms Percivil was
asked by the store detective to go back to the store and was not
charged with anything at that point.
She was told firmly that she must return to the store and I
believe that her decision to do so was due to psychological
compulsion on her part. Upon returning to the store she was
made to wait until they could check her store, thus her freedom
was restrained and she was compelled to allow it. There was no
physical force, but as Birds shows that is not a necessary
element.
Conclusion
As such, I am convinced that the tort of false imprisonment has
been proven. The law on point is clear and her presumed
freedom was arbitrarily detained. Thus I find for the plaintiff
and award damages.

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74

Judgment for the Plaintiff.

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