Unit 1 - Criminal and Civil Trials

Terms for the processes of criminal and civil trials in the political and legal system of Australia

Justice

Society’s concept of fairness. It requires that legal processes are based on consistent rules applied in an unbiased manner and that individual laws are based on prevailing social values and fundamental human rights.

Natural Justice

A principle of justice incorporating the rule against bias and the right to a fair hearing. This implies that all people have the right to be heard by an independent arbiter and that evidence must be used as the basis for any decision. Courts and tribunals also have a duty to act fairly.

Legal rights

Both parties to a trial have legal rights, including the right to a fair trial. The accused has additional legal rights to increase their protection, which could have life changing consequences. One of the most basic legal rights that underpins our legal system is the ‘Golden thread of justice’ which is innocent until proven guilty.

Disputes

A disagreement about something.

Private disputes

Involve alleged wrongs committed by one party against another, such as loss or damage caused by negligence, loss of others’ quiet enjoyment caused by excessive disturbance, loss or damage to another’s reputation, and breach of contract.

Public disputes

These are about the meaning and application of statutes, constitutions or disputes involving the government, including administrate, taxation, criminal and constitutional disputes.

Private law

Concerns private relations between legal persons. Legal persons may be natural or artificial e.g. corporations. Usually involve an allegation that one party has wronged another. They have little consequences for the law public, except if it creates new common law by creating precedent.

Tort

Meaning ‘wrong'. Examples include negligence, nuisance and defamation. These dispute arise when one party accuses the other of causing them loss or damage.

Contracts

A legal agreement between parties. It has four components. Disagreements can arise about any of these four parts of a contract.

1. An offer by one party

2. Acceptance by the other party

3. An intention to enter the contract

4. Consideration

Negotiation

The disputing parties talk to each other until a resolution is agreed.
May agree to differ, compromise or each consensus.
No third party, so the two parties are in direct negotiation.
The cheapest form of ADR (Alternative Dispute Resolution)

Mediation

A mediator acts as a neutral and impartial third party acting between disputing parties.
Assist by helping to clarify their disagreements and reach any settlement.
Mediators engage in dialogue, hear both sides, and gather information.

Conciliation

A natural and impartial third party assists the disputing parties to find an agreement.
A conciliator seeks the best solution rather than just any agreeable solution.
Conciliators make proposals for settlement and attempt to drive the parties.

Arbitration

More rule based and procedural
Involves strict rules and procedures
An arbitrator is a more formal neutral and impartial third party than a mediator or conciliator
May involve a panel of arbitrators working informally with the parties
More adversarial
Decision making power is transferred to the arbitrator
Parties may use negation or any other means if necessary

Litigation

Imposes a legally binding resolution on the parties who must be prepared to bear the costs of legal action. Most trials have the following:

• an adjudicator

• the parties

• legal representatives

• formal court room setting

• personnel

Standard of proof

The degree of certainty required to demonstrate that the defendant committed a civil wrong or a crime. In civil this is on the ‘balance of probabilities’ and in criminal it is ‘beyond reasonable doubt’

Burden/onus of proof

Placed on the person who makes a legal claim, i.e. the plaintiff (civil) or prosecution (criminal). They are required to substantiate their claim with evidence.

Remedy

Orders made by a court in a civil dispute to compensate successful plaintiff for the wrong committed against them by the defendant.

Sanctions

The sentences applied by the courts to a person who has been found guilty of an offence. Can include fines, community service, orders and imprisonment.

Plaintiff

The person who brings an action in a civil case, generally to seek damages from another pesron who has wronged them.

Prosecution

The legal counsel who presents the evidence against the accused. This is done on behalf of the State by the Department of Public Prosecutions.

Defendant

A person, company or organisation that defends a civil action. Also a person charged with a criminal offence. They’re known as the accused.

Beyond reasonable doubt

The standard of proof required in a criminal case. The prosecution must provide evidence to show that there is no plausible explanation of the case other than the guilt of the accused.

Balance of probabilities

This is the standard of proof required in a civil dispute. The likelihood of one party’s version of events.

Right to silence

A defendant in a criminal trial doesn’t have to provide evidence; the onus of proof lies on the prosecution.

Presumption of innocence

Sometimes referred to as the golden thread of justice, it requires that an accuser must prove their accusation against the defendant.

The defendant doesn’t need to give any testimony and the court cannot infer guilty.

The accuser must meet the standard of proof.

Relevance

Evidence must be applicable to the case.

Hearsay

Witness can only give evidence based on what they’ve witnessed themselves. It must be firsthand.

Opinion

Witnesses can only report observed facts as evidence. They can’t express their opinion. Only expert witnesses can present professional opinion.

Circumstantial evidence

Circumstances may allow a particular conclusion to be drawn. This is suggestive evidence, and not conclusive. It’s not good enough to meet the standard of proof.

Civil disputes

It’s purpose is to present and test evidence, argue the interpretation of the law and to convince the judge. There are equal opportunities to both parties to present their case.

Letter of demand

A statement or letter to the other party outlining what the issue is and the solution being sought.

Usually after meetings e.g. phone calls and attempts at negotiation.

Contains words like ‘without prejudice’ meaning the other party cannot use any of this information against the providing party at a trial.

Writ of summons

A document outlining the alleged wrongs and filed with the court by the plaintiff.

Includes an ‘indorsement of claim’ that generally outlines the wrong alleged, known as ‘cause of action

Used by the court

Served on the defendant

Memorandum of appearance

After a writ is served

Defendant must file this

They ensure all information contained in the writ is correct, e.g. names and dates

In magistrates, if you can show the other party’s case has no chance of succeeding, you can apply for a default of judgement.

Statement of claim

The document containing all the facts and details of the claim. Sometimes not included in the writ of summons. If not, statement of claim must be served on defendant within 14 days of memorandum being filed.

Defence

Addresses each point made in the statement of claim

Can accept or challenge claims made

Can include a counter claim that they’ve been wrong

All of the above are collectively referred to as the pleadings.

Further and better particulars

Information required to continue both parties’ cases, not given in pleadings

Discovery and inspection

Each party must provide the other party to the action with a list of documents relevant to the pleadings that they’ll rely on in a trial. Usually done in two lists in chronological order.

One list contains all relevant documents over which party is claiming privilege. Legal privilege protects parties from disclosure of certain communications between a lawyer and client.

Interrogatories

Parties may seek to question each other on facts relevant to the pleadings. A party drafts a list of numbered questions and will seek leave of the court to serve them on the other party.

The other party must provide responses to the questions.

The responses are attached to a sworn affidavit, a document setting out the evidence the witness wants to give and may be admitted to court as evidence.

Entry for trial

When all the previous stages have been completed, both parties complete and file the relevant documents including a checklist and memorandum of conferral to indicate they’re ready to go to trial.

District court requires all parties to attend a pre-trial mediation conference as a last effort to resolve the dispute before trial.