Civil and Criminal Procedure

Adversarial System

Belief that justice is best achieved through a battle of words between two adversaries

Inquisitorial System

Trial system used in countries such as France and Indonesia. Based on the assumption that truth is best discovered through inquiry conducted by an impartial adjudicator

Private law

Law concerning wrongs committed against private parties (civil)

Public law

Law concerning wrongs committed against the community (criminal)

Civil trials

A trial in which a private party is the plaintiff and the defendant is accused of a civil wrong

Criminal trials

A trial in which the state is the prosecuting party and the defendant is accused of a crime

Summary offences

A simple or minor offence adjudicated in an inferior court such as the Magistrates Court of WA. Includes theft and driving offences

Indictable offences

A serious criminal offence that is generally adjudicated in an intermediate or superior court, and where the defendant is afforded a trial by jury. Includes murder and GBH

Negotiation

Final form of dispute resolution. Involves the application of judicial power to impose a legally binding resolution upon parties. Parties must be unable to resolve their dispute using other forms of ADR to reach this stage

Mediation

Involves the disputing parties talking to each other until a resolution is agreed. Only the parties to the dispute are involved are involved in direct negotiations

Conciliation

Like mediation. A form of ADR in which a neutral third party assists two disputing parties to find common ground and resolve their dispute. However, a conciliator is more active than a mediator ad seek the optimal solution, not just any agreeable solution

Arbitration

A form of ADR in which a neutral third party assists two disputing parties to find common ground and resolve their dispute. Focus is to settle the dispute through a formal contract agreement between both parties. If the parties cannot agree to a resolution, the arbitrator can decide for them

Litigation

Final form of dispute resolution. Involves the application of judicial power to impose a legally binding resolution upon parties. Parties must be unable to resolve their dispute using other forms of ADR to reach this stage

Onus/burden of proof

The onus to prove the accusation against an accused is the responsibility of the party sho brings the dispute to trial

Standard of proof

The level to which a court case must be proven in order for it to be successful

Balance of probabilities

Standard of proof required in a civil proceeding. Adjudicator will rule on liability according to the degree of probability as to whose version of the facts is more likely

Beyond reasonable doubt

Standard of proof required in a criminal dispute. Responsibility of the prosecution to prove there is no rational doubt as to the guilt of the defendant, otherwise the charge has not been proven

Presumption of innocence

Idea that accused are presumed innocent and the accuser must prove the accusation to the standard of proof required

Role of judge in an adversarial trial

* ensures a fair trial by enforcing trial procedures designed to uphold natural justice
* decides the remedy in the post trial phase of civil trials
* decides the sentence in the post trial phase a criminal trials
* In the absence of a jury, decide the liability or guilt based on the evidence presented

Role of jury in an adversarial trial

* impartial adjudicator in a criminal trial
* must agree unanimously on the verdict
* do not ask questions or present evidence or make an argument

Role of parties in an adversarial trial

* accuser bears onus of proof and must meet the standard of proof required to win a case
* defendant is presumed innocent and has a right to silence
* responsible for gathering evidence, presenting evidence in court, testing the other party’s evidence, arguing about how the law should be interpreted

Role of legal representatives in an adversarial trial

bear the burden of running the case on behalf of a party

Rules of evidence

Rules governing the type of evidence admissible in a trial

* hearsay - witnesses can only give evidence based on what they have witnessed themselves; not what they have heard
* character - evidence must be applicable to the case. Irrelevant evidence is excluded as it has no value in finding the truth
* opinion - witnesses can only report observed facts as evidence. Exception is with expert witnesses
* circumstantial evidence - circumstances may allow a particular conclusion to be drawn by a reasonable person. However, this evidence may not be conclusive, only suggestive

Pre-trial phase

purpose is to

* clarify the dispute
* discover and prepare evidence
* decide how the law may apply to the case

Many cases are solved at this stage, making a trial unnecessary

4 part sequence of a trial

Parties have equal opportunities to


1. Open their case with an address to the court
2. Examine witnesses and present evidence; and
3. close their case with an address to the court

If the judge or jury is convinced to the standard of proof required that the defendant is liable or guilty, they deliver the:


4. Verdict

opening address

Plaintiff/prosecution bears the burden of proof so begins the trial with an opening address followed immediately by the defence opening address

Presenting evidence

Parties present all evidence. Judge plays no role in the discovery of evidence in the adversarial trial.

* Presentation of evidence by plaintiff/prosecution commences and is tested by the defence
* Defence are not required to present evidence but may do so

Witness testimony

witness evidence is given as spoken answers in response to questions asked by parties. Given under oath

Non-oral evidence

Non-spoken evidence in many forms including:

* written statements; called affidavits; made by witnesses
* documents, including receipts, photographs, video and audio recordings etc.
* physical objects e.g. a weapon
* miscellaneous, including DNA, biological samples, data recorded by digital devices and other forms of evidence

Closing address

First the plaintiff/prosecution and then defence conclude the trial with closing addresses

* opportunity to summarise their case to the adjudicator before a verdict is reached

Verdict

Adjudicator decides the result of the trial by weighing up the evidence and deciding if the plaintiff/prosecution has proven their case to the standard of proof required

Post trial

* not usually a post trial phase if the plaintiff/prosecution fails to achieve the standard of proof
* If guilty in criminal, the resolution os a sanction that punishes, rehabilitates, and deters the offender
* if liable in civil, the resolution is a remedy to ‘right the wrong’ or enforce the contract

Civil pre-trial procedure

Civil trial stage

1. opening address
2. examination of plaintiff witnesses
3. examination of defence witnesses
4. closing address
5. verdict

Remedy

form of court enforcement that is given as a result of a successful civil lawsuit.

Types of remedies

Criminal pre-trial procedure

Criminal trial procedure

Same as within civil


1. opening address
2. examination of plaintiff witnesses
3. examination of defence witnesses
4. closing address
5. verdict

Judicial discretion

the freedom of a judge to decide on an appropriate outcome for a particular case within the bounds of the law Can be limited by mandatory sentencing laws

Mandatory sentencing

For certain types of offences the judge is required to impose a sentence that the parliament has has codified in the sentencing act. e.g. judges may be compelled to jail third time offenders even for minor offences

Sentencing options

* imprisonment - prison sentences can be served immediately or may be suspended subject to good behaviour
* community based sanctions - an offender may be sentenced to work without pay, to attend educational course, be treated for addiction or similar, or be placed under intensive supervision by an officer of the Department of Corrective Services
* Home detention - offender may be sentenced to remain in their home with only short breaks for essential outings such as medical visits
* fines can be imposed alone or in combination with any of the above

Sentencing factors

Judges consider two factors when sentencing


1. the offence (its degree of criminality)
2. the offender (first or repeat offence, mitigating or aggravating circumstances, remorse, chance of rehabilitation)