Criminal and Civil Court Procedures (HSC SSCE Legal Studies): Revision Notes

Criminal and Civil Court Procedures

Introduction to criminal and civil court overlap

Both criminal and civil law can apply to the same situation. When a person causes harm to another through their actions, two separate legal processes may occur:

• Criminal proceedings: The state prosecutes the offender for breaking the law
• Civil proceedings: The victim seeks compensation for their injuries or losses

Both types of cases use the adversarial system of trial. This means representatives of each party present their side of the case to a judge (and sometimes a jury), who considers the evidence and makes a decision in favour of one party.

Key differences between criminal and civil court proceedings

Understanding the fundamental differences between criminal and civil cases is essential for legal studies students. These distinctions affect how cases are prosecuted, who brings them, and what standards must be met for a successful outcome.

Key terminology

Prosecutor: The person formally conducting legal proceedings against someone accused of a criminal offence. The prosecutor acts on behalf of the state or the Crown.

Defendant: The person who is accused of a crime or a civil wrong. In criminal cases, the defendant is also called the accused.

Standard of proof: The degree or level of proof required for the plaintiff (civil) or prosecution (criminal) to prove their case.

Beyond reasonable doubt: The standard of proof in criminal cases. The prosecution must convince the court that no reasonable person could doubt the accused committed the offence.

Balance of probabilities: The standard of proof in civil cases. The plaintiff must show it was more likely than not that their claim is correct.

Onus: The burden or duty of proving the case to the court.

Criminal procedure

Criminal law proceedings involve the legal processes where a person accused of a crime is prosecuted. If found guilty, the accused receives a conviction and punishment such as a fine or imprisonment.

Types of criminal offences

Criminal offences are classified into two categories based on their seriousness:

Summary offences are relatively minor offences including:

• Certain traffic offences
• Offensive behaviour
• Minor property crimes

Indictable offences are serious criminal offences including:

• Murder
• Sexual assault
• Malicious wounding
• Serious fraud

Who prosecutes criminal cases

The prosecution process differs depending on the seriousness of the offence:

Summary matters in NSW: Police may prosecute the case themselves in the Local Court. A specially trained police prosecutor represents the state in court.

Serious crimes: The Office of the Director of Public Prosecutions (DPP) prosecutes these cases.

Australian Capital Territory: The DPP prosecutes all criminal matters in both the Magistrates' Court and Supreme Court.

The accused (defendant) usually employs a lawyer to represent them, though some may choose self-representation depending on the charges' seriousness. The accused's case is called 'the defence'.

Committal hearings

Before an accused person can be tried for an indictable offence, a committal hearing must occur. The prosecutor must convince the magistrate there is a sufficiently strong case—a prima facie case—that the accused committed the offence. Only then can the matter proceed to trial before a jury.

Criminal trial process

Trials of indictable matters take place in:

• NSW: District Court or Supreme Court (depending on seriousness)
• ACT: Supreme Court

Criminal trials are heard before a jury of $12$ people, unless the accused elects to have their case heard before a judge alone.

The jury's role: Consider whether there is enough evidence to convict the accused. The jury decides on issues of fact based on evidence presented.

The judge's role: Advises the jury and deals with questions of law.

Jury verdict requirements

Steps in a criminal trial

1. The indictment: At trial start, the indictment is read to the accused, who pleads guilty or not guilty.

2. Opening address: The prosecution sets out the facts and evidence that will prove the defendant's guilt.

3. Examination in chief: Each side calls witnesses and questions them to establish facts (prosecution) or disprove the prosecution's case (defence).

4. Cross-examination: Each side examines the opponent's witnesses to challenge their version of facts or question their credibility.

5. Closing addresses: Each side gives a final speech to the jury, drawing together evidence and providing arguments for their position.

6. Judge's summing up: The judge instructs the jury on how to reach a verdict.

7. Jury deliberation: The jury goes to another room to deliberate until reaching a verdict.

8. Sentencing: If the jury returns a guilty verdict, sentencing occurs either immediately or at a later date.

Burden and standard of proof in criminal cases

Courts handling criminal cases

Local and Magistrates' Courts:

• Handle most criminal cases
• No juries or judges—a magistrate makes the decision
• Matters handled quickly, efficiently, and cost-effectively
• Less formal proceedings than higher courts
• Lawyers and magistrates do not wear traditional robes
• Solicitors carry out most legal work
• Many defendants represent themselves

Children's Court hearings:

Children under $18$ years are treated differently by the court system, reflecting the principle that immature persons have a different degree of responsibility.

Civil procedure

Civil proceedings are court actions arising from disputes between individuals. They are initiated by individuals or organisations, not the state. Civil proceedings manage matters such as:

• Breach of contract
• Property disputes
• Negligence
• Other civil wrongs (torts)

The parties in civil cases

Plaintiff: The person who brings the civil action against someone else. The plaintiff issues a statement of claim or summons to begin proceedings.

Defendant: The individual or organisation who must defend their actions—the person alleged to have committed the breach or wrong.

The process in a civil claim

The civil claim process follows a structured series of steps that allow both parties to present their case and attempt resolution before trial.

1. Statement of claim:

• Outlines the facts of the dispute and the parties involved
• Must be 'served' on the defendant following strict rules
• The court with jurisdiction depends on the type of claim and monetary amount involved

2. Pleadings:

3. Statement of defence:

• The defendant responds to the plaintiff's claim
• May deny or challenge the plaintiff's allegations
• May admit allegations but plead additional facts to counter them
• Defendant may also file a counterclaim against the plaintiff

4. Discovery:

During the discovery phase, parties obtain more information about each other's arguments:

• Interrogatories: Written questions submitted to the other party, which must be answered
• Questions must be relevant to a matter in question
• Many civil disputes are resolved at this stage through settlement

5. Trial:

If the dispute cannot be settled, the matter proceeds to trial. During trial:

• Each side has the right to produce evidence
• Both sides call witnesses
• Both sides conduct cross-examinations
• When both sides have presented all evidence, the judge makes a ruling

6. Judgment:

If the plaintiff succeeds, the judge decides the amount of relief (compensation) the defendant must give the plaintiff. This usually takes the form of:

• Damages: Monetary compensation
• Injunction: A court order prohibiting specified activities
• Specific performance: Completion of a required action (e.g., transfer of disputed property)

Burden and standard of proof in civil cases

Burden of proof: Rests on the injured party (the plaintiff) to prove their allegations. The rules of civil procedure give the defendant the chance to provide evidence that rebuts the plaintiff's case.

Standard of proof: In civil cases, the standard is 'on the balance of probabilities'. This means:

• The plaintiff must prove it was more probable than not that they suffered injury or loss as a result of the defendant's actions
• The plaintiff must show their claim is more likely correct than incorrect
• This is a lower standard than the criminal standard of beyond reasonable doubt
• If the evidence shows a greater than $50\%$ likelihood the plaintiff's claim is correct, the standard is met

Personnel in court cases

Court cases involve numerous participants with official and unofficial roles. Understanding these roles is essential for comprehending court procedures and the administration of justice.

Judges and magistrates

Judges:

• Preside over intermediate and superior courts (District and Supreme Courts)
• Make decisions about points of law
• Give instructions to the jury to ensure they understand proceedings and evidence
• Hand down sentences in criminal cases and rulings in civil cases
• In civil cases without a jury, the judge is responsible for the final decision
• Must be legally qualified professionals with extensive experience in law

Magistrates:

• In charge of lower courts (Local or Magistrates' Courts)
• After hearing both sides, decide whether a person is guilty or innocent
• Decide on punishment in criminal cases
• Determine the amount of money awarded in civil cases
• Refer very serious criminal offences to District Court (NSW) or Supreme Court (ACT)
• Hear some indictable matters in committal hearings to determine if they should proceed to trial
• If there is enough evidence to establish a prima facie case, the matter is referred to a higher court

Judge's associate

• Acts as confidential secretary to the judge
• Performs clerical duties for the court
• Generally has a law degree
• Provides administrative support to the judge

Tipstaff

• Supports the judge in matters of procedure and organisation when court is in session
• Provides research and administrative support when court is not in session
• Assists with the smooth running of court proceedings

Barristers and solicitors

The legal profession is divided into two branches, each with distinct roles and responsibilities:

Solicitors:

• First point of contact for people seeking legal advice
• Give legal advice on a wide range of legal issues
• Must have completed a recognised law course and relevant work experience
• Work in various practice areas including:
  • Family law
  • Conveyancing for real estate transactions
  • Preparation of wills and contracts
• Traditionally prepare briefs for barristers when cases go to court
• Do research and provide legal advice
• In Local or Magistrates' Courts, commonly appear on behalf of clients
• In NSW, issued different practising certificates from barristers

Barristers:

• Traditionally the only legal professionals who can represent parties in higher courts
• Often specialise in one area of law (e.g., family law)
• Develop depth of knowledge and expertise in their specialisation
• Solicitors approach barristers on behalf of their clients

Witness

• Gives evidence regarding the case in court
• Both parties can call witnesses to support their claims
• Cannot enter the courtroom until their name is called
• Once called, must take the stand and either:
  • Swear an oath, or
  • Make an affirmation to tell the truth
• Subject to examination in chief and cross-examination

Court officer

The court officer has multiple responsibilities that ensure the smooth operation of court proceedings:

• Manages court lists
• Calls witnesses into the courtroom
• Administers oaths or affirmations
• Ensures the public are seated in appropriate areas
• Announces the arrival and departure of the judge
• Communicates questions from jurors to the judge
• Passes documents from the bar table to the associate, who gives them to the judge, jury, or witnesses
• Advises the judge's associate when the jury is ready to return a verdict
• Operates audio-visual equipment where necessary
• Gives instructions to the jury and answers questions from jurors
• Manages the jury room and ensures jurors' comfort

Court reporter

• All court proceedings must be recorded
• Recording may be written (shorthand or shorthand machine) or audio/visual
• Must produce an accurate written transcript of what has been said in the courtroom
• Transcript serves as the official record of proceedings

Corrective services officer

• In criminal cases, guards the accused
• Escorts the accused to and from the courtroom
• Ensures security during proceedings

Jury

A jury is a panel of citizens who consider the evidence and decide on questions raised in the case. Their job is 'fact-finding', and their decision is called a verdict.

Jury composition and selection:

• Members are ordinary people randomly selected from the electoral roll
• Criminal trials involve $12$ jurors
• Civil cases in NSW may have $4$ jurors (or judge alone)
• Before a case begins, jury members are sworn in

Challenges to jury selection:

In criminal trials, both prosecution and defence can challenge jury selection:

Jury responsibilities:

• Consider evidence and decide on issues of fact
• Determine whether there is enough evidence to convict the accused
• Must reach a unanimous verdict (all jurors must agree)
• In NSW, after at least $8$ hours if unanimity cannot be reached:
  • $11$ of $12$ jurors can decide (if $12$ jurors)
  • $10$ of $11$ jurors can decide (if $11$ jurors)

Plaintiffs and defendants

In civil cases:

• Plaintiff: The person who brings a civil action against someone else
• Defendant: The person who must defend their actions

In criminal cases:

• Defendant: The person accused of the crime
• No plaintiff (the state prosecutes)

Media

• Often attend high-profile court cases to report on them
• Generally sit in the media gallery
• May wait outside court to interview people
• Subject to restrictions (e.g., cannot identify children in Children's Court cases)
• Play important role in informing public about legal proceedings

Exam guidance

Remember!