civil and criminal trials

What are the pleadings documents

Formal documents exchanged in the pre-trial stage of a civil case. They aim to clarify the issues in dispute and resolve issues.

There is:

• Writ of summons (Formal start of civil court case)

• Memorandum of appearance (Defendant says they saw writ of summons and contests it)

• Statement of claim (Itemized list of plaintiff’s claims against the defendant and what they are seeking)

• Statement of defence (Defendant’s response to the statement of claim, may accept some accusations or counter the plaintiff’s account)

• Discovery (Exchange of evidence which will be used)

• Interrogatories (Questions asked of evidence in discovery)

Examples of remedies

• Compensation (Money)

• Apology (For a defamation case)

• Injunction (Told to stop doing something)

Standard and burden of proof in civil vs criminal case

The standard of proof for a criminal case is beyond all reasonable doubt, and the prosecution has the burden of proof (Defendant is innocent until proven guilty).

The standard of proof for a civil case is on the balance of probabilities, and the plaintiff has the burden of proof

Summary vs indictable offences

• Summary offences are less serious offences with no trial held in the magistrates court (eg traffic violations)

• Indictable offences are more serious offences involving an arrest, with a right to trial by jury before a judge

Rights of the accused

• Presumption of innocence

• Right to silence (Can abstain from self-incrimination)

• Right to a fair trial

  • Requires the right to legal representation for indictable offences

What is the first pretrial stage in an indictable offence

A police investigation, once the alleged offence is brought to the police’s attention. The investigating officer may have to obtain a warrant from a magistrate/judge/justice of the peace, who must be satisfied of the justification for the police’s encroachment on rights. Police may carry out searches, seize items, arrest and detain people. The police may then arrest and charge the alleged offender.

What occurs following an arrest

• First hearing in Magistrate’s court (sets out a timeline, files for hearing at later date. Defendant is able to plea. May be released on bail or held in remand)

• Police committal hearing (Magistrate confirms the police have provided all evidence

• Hand up brief (containing all evidence against the defendant) is given to the defendant by the DPP (Department of public prosecutions)

• Disclosure/committal hearing (Ensures the prosecution has disclosed all evidence and has settled on charges proceeding. Defendant enters plea if they haven’t already)

Pretrial process for a summary offence:

• Police may or may not arrest the alleged offender, depending on if it is required

• If arrested, bought before a magistrate, either released or held on remand

• A summons requires the alleged offender to come to the magistrates court on a date set for hearing

What must the police tell suspects in interviews?

Must inform the arrested person of:

• Right to medical treatment

• Opportunity to tell a friend/relative where they are

• Right to an interpreter

• What they are arrested for

• Right to speak to a lawyer

• Right to silence

What is bail

Bail is a written promise to attend court on a fixed date, with failure to attend resulting in a warrant being issued for the accused’s arrest. Bail is not granted if the accused is considered to be a danger to society.

Possible bail conditions

• Paying a cash bond

• Abiding by a curfew

• Residing at a fixed address

• Reporting regularly to a police station

• Refraining from associating with certain people

These conditions may sometimes negatively affect people of lower socioeconomic standing (eg cash bond, fixed address)

What is remand

The act of holding a person in detention between their arrest and trial. It is used when it is thought likely that the person will be a continuing danger to the community or is likely to abscond (flee) and fail to appear for trial.

What are the rules of evidence

The rules of evidence refers to the standards applied to the evidence given in legal proceedings to ensure that only the best quality evidence is admitted in court. These rules aim to ensure that decisions are made on the best possible evidence, as per the principles of natural justice.

Relevance

Evidence must be directly relevant to the case before the court

Hearsay evidence

Witnesses can only give evidence on what they have directly witnessed, can’t be second hand evidence

Opinion evidence

Witnesses must only report observed facts as evidence, not personal opinions (With the exception of expert witnesses)

Character evidence

Prosecution/plaintiff can’t introduce evidence highlighting the defendant’s bad character, including past criminal records (presumption of innocence)

Propensity evidence

An exception to character evidence. The prosecution may use past convictions to prove that the accused has the ‘propensity’ to commit the crime if it has ‘significant probative value’ (s 31A of the evidence act 1906 (WA))

What is alternative dispute resolution

Alternatives for resolving disputes outside of a civil trial, including negotiation, mediation, arbitration and conciliation.

What is negotiation

• Disputing parties talk to each other until a resolution is agreed

• No third party is involved

• Cheapest form of ADR, most likely to preserve relationship between disputing parties

What is mediation

A mediator acts as a neutral and impartial third party between the parties, helping to clarify their disagreement and reach a settlement. Compulsory precursor to WA civil law trials

What is conciliation

A neutral and impartial third party assists the disputing parties to find an agreement which is the optimal solution

What is arbitration

Involves strict rules and procedures which both parties must adhere to during the process, giving up decision making power to the arbitrator. Arbitrators usually sit on a panel in a formal setting resembling a courtroom

What is the jury system

The process by which ordinary citizens become directly involved in the administration of justice in WA by serving as jurors in the district and supreme courts. Jury duty is a civic responsibility and requires the co-operation of all.

Eligibility for jury duty:

The electoral roll is the source database for jury duty.

Ineligible people:

• People over 70

• Persons excluded by the Juries Act 1957 (eg judges, police officers, lawyers, MPs as they aren’t average citizens)

Disqualified people:

• Persons convicted of an offence and sentenced to life imprisonment (s5(b) Juries Act 1957)

Deferring/excusing jury duty

Deferring means you must complete jury duty at a later date, while excusing jury duty means you don’t have to complete jury duty.

Allowed when:

• Impact on the wider community is significant

• Very hard to replace them while away on jury duty

  • Eg medial professionals such as surgeons, teachers

Not attending at all is a crime against the legal system and may result in a fine/other sanction

When is a jury used

In criminal proceedings, in the district and supreme courts after an accused has pleaded not guilty to indictable charges

Jury empanelment

• 20 to 40 names are selected randomly to form the jury pool

• Names are drawn by ballot and the selected person walks to the box

• Each party may challenge up to 3 jurors without giving a reason (peremptory challenges)

  • Lawyers make judgements based on appearance, age and occupation of whether the potential juror is more or less likely to support their case

  • May then challenge jurors with reason

• Continues until at least 12 jurors are selected (may be up to 18 as a safety net for longer trials)

Jury’s verdict

• Must be unanimous for murder and manslaughter cases, as well as all federal charges

• The decision of 10 or more jurors may be taken as the verdict if a unanimous verdict hasn’t been reached after deliberation

• If no verdict is reached (Hung jury), the judge will discharge the jury

Arguments for juries:

• Prevents arbitrary/oppressive enforcement of criminal justice by those in authority

• Criminal offences are offences against society as a whole, so guilt is decided by jurors representing a cross section of society with various perspectives

• Free from intimidation as they don’t have to give reasons for their decision

• Increases political participation by directly involving the public in legal decision making

  • Necessitates the use of plain language, making trials more accessible and transparent

Arguments against juries:

• Jurors don’t always follow the instructions of the judge, and may complete their own research outside of court (eg DPP v Lehrmann (2022))

  • Doesn’t comply with strict rules of evidence

  • Denies the accused’s right to a fair trial

• Jury deliberations are secret and unreviewable, so decisions may be arbitrarily made, rather than based on the evidence from the case. Also means that juror misconduct can easily occur without the court’s knowledge

• Long trials can be very complex, making it hard for the jury to remain engaged and to understand everything.