Civil and Criminal Trials in Western Australia

Question 1

What is a civil dispute?

Answer 1

between an individual or institutional plaintiff against an individual or institutional defendant. Plaintiff initiates lawsuit

Question 2

What is a criminal dispute?

Answer 2

between the state and the defendant accused of breaking public law. State represents community

Question 3

What is the burden of proof?

Answer 3

the requirement that the person who makes a legal claim (the plaintiff in civil proceedings and the prosecution in a criminal trial) is responsible for substantiating their case

Question 4

What is the standard of proof?

Answer 4

the degree of certainty required in a trial to demonstrate that the defendant committed a civil wrong or a crime.

In a civil trial the standard of proof required for a plaintiff to be successful is for the case to be established on the balance of probabilities. Ina criminal case, the evidence presented by the prosecution must establish the guilt of the accused beyond reasonable doubt

Question 5

What are the many differences between a civil and criminal trial?

Answer 5

Question 6

What is an adversarial system?

Answer 6

a legal system based on the principle that justice is best served by allowing competing parties to present their arguments to an impartial third person for adjudication

Question 7

What are key features of the adversarial system (common law)?

Answer 7

• known as counsel-led trial
• system bases itself on the idea that a trial is a contest
• legal disputes are clearly divided into criminal or civil law
• parties are responsible for the preparation and presentation of their case
• case is conducted by an independent, impartial adjudicator
• relies heavily on oral evidence presented in court, strictly regulated by the rules of evidence
• based on gradual build up of cases and judgements (common law)

Question 8

What are the rules of evidence?

Answer 8

• relevance: questioning and evidence must be relevant to case in question
• hearsay: unsupported comments of a third person
• similar fact: juries are not able to know of a defendant’s previous convition for crimes of a similar nature unless the manner in which the defendant has carried out the acts is strikingly similar
• corroboration: evidence of certain witnesses is required to be corroborated by other witnesses
• privilege: evidence cannot be compelled if it is priviliged, priviliged information is info given that would not have been disclosed if the people giving it knew it could be made public i.e. legal, religious, medical
• right to remain silent: defendant cannot be compelled to give evidence
• opinion
• assumptive/conclusive

Question 9

What are some pros and cons of an adversarial system?

Answer 9

Pros

• judge is independent-not responsible for investigation-less bias
• relies on precedent-adjudicator’s decisions must be justified by law

Cons

• long and expensive
• misleading (evidence can be withheld)
• innocence can be bought-success may depend on lawyer

Question 10

What is an inquisitorial system and what are some examples?

Answer 10

a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence

examples: China, Japan, Germany, France, Spain

Question 11

What are key features of an inquisitorial system?

Answer 11

• responsibility for investigation is on adjudicator of dispute
  
  • inquisitor/judge directs pre-trial investigation
  • no. of cases heard are greatly reduced as inquisitor will often determine questions of innocence or guilt prior to the trial being heard
• less rigid rules of evidence: everything is accepted, adjudicator’s discretion of what holds more importance, no right to remain silent
• often no jury
• no distinction between criminal and civil
• based on codified laws: all law are in one code or document

Question 12

What are some pros and cons of the inquisitorial system?

Answer 12

Pros

• more efficient
• search for truth rather than contest between two parties
• large number of trials settled in pre-trial stage
• less expensive
• specialised training for judges
• all evidence is heard

Cons

• less rigid rules of evidence-hearsay and previous convictions are heard
• more room for corruption and biased judges
• lawyers and judges are paid less

Question 13

What is the civil pre-trial process?

Answer 13

• letter of demand: lawyer on plaintiff’s behalf, begins legal claim + time frame for response
• writ and statement of claim (summons in Magistrate), sets out specific claims made and compensation sought +whether to be heard by jury or not
• memorandum/notice of appearance formal response to writ (if none→default judgement in plaintiff’s favour), defendant gives notice to plaintiff the he/she intends to defend the action and accepts the jurisdiction of court
• defence (+ counterclaim): version of facts and law argues by defendant
• interrogatories, notice of discovery/discovery documents: questions which must be answered within a set time period/forces other party to reveal evidence relevant to case
• certificate of readiness: official document sent by both parties indicating pleadings have reached a stage where they are prepared to attend court and have their cases heard

Question 14

What are the pleadings documents?

Answer 14

letter of demand, writ, notice of appearance, statement of claim and defence are known as the pleadings documents- their purpose is to outline what each party plead in support of their case

Question 15

What are the further and better particulars documents?

Answer 15

the interrogatories, discovery documents and certificate of readiness make up the further and better particulars documents- whose purpose is to provide greater understanding of issues in dispute

Question 16

What is the civil trial process?

Answer 16

• if the plaintiff has elected have their case heard by a jury, a jury is empanelled and sworn in
• trial formally commences with the plaintiff’s address, outlining the elements of their case against the defendant
• plaintiff can call and examine witnesses to support their case. The questioning goes as follows
  
  • examination-in-chief by legal counsel who called them to appear. No leading questions may be asked
  • cross-examination by opposing legal counsel. leading questions may be asked
  • re-examination if important matters require clarification
• the defence then outlines their case and calls and examines their witnesses, following a similar process. This is called the defence response.
• the defence summarises their case first, followed by the plaintiff
• a judge usually reserves their decision, producing a written judgement detailing the reasons for their decision at a later time
• case formally concludes with the judgement being entered, a part of this judgement includes a decision about the payment of costs incurred in the case

Question 17

What is the aim of civil remedies?

Answer 17

to restore the parties to their original position

Question 18

What are some civil trial remedies?

Answer 18

• damages: restore position of plaintiff to before the actions of defendant
  
  • compensatory: restore losses suffered by plaintiff
  • exemplary: make defendant an example to the community (punitive and rarely used)
  • nominal: plaintiff has reputation vindicated by nominal damge awards
• injunctions: requires person to carry out/not carry out act
• orders of specific performance: compel parties to fulfil obligations (contract)
• orders of restitution: defendant must return property of plaintiff to plaintiff

Question 19

What is a summary offence?

Answer 19

minor importance offence, arrest usually without warrant, trial before magistrate generally only parties present are arresting police officer and the accused, accused does not always have to be present at trial i.e. traffic offence

Question 20

What is an indictable offence?

Answer 20

serious offence, arrest usually with warrant, trial before judge and jury i.e. violent assault

Question 21

What is the criminal pre-trial process?

Answer 21

• once an offence is reported, police initiate an investigation
• when police believe they have sufficient evidence to meet the standard of proof required, they will formally seek to begin criminal proceedings
• a suspect may be:
  
  • issued a criminal summons which sets out the nature of the charges and the place and date of the court hearing
  • formally cautioned
  • taken into custody and charged by police. They are then entitled to apply for bail

Question 22

What is the criminal trial process (indictable offence)?

Answer 22

• committal mention before a magistrate, charges are read out
• if accused denies charges, the prosecution identifies the accused, the indictment read and a plea of not guilty is entered, this is called the arraignment
• the jury is then empanelled
• the prosecution opens
• witnesses for the prosecution go through the questioning process
• the defence outlines their case
• defence call witnesses to be questioned
• state prosecutor gives closing address first, followed by the defence
• jury retires, verdict must be unanimous
• the jury delivers its verdict
• before sentencing, the accused/defence counsel may enter a plea for mitigation, any personal circumstances that may affect sentencing

Question 23

What are the aims of sentencing (imposing sanctions)?

Answer 23

1. to punish the offender in a way that is just given the circumstances of the case
2. to rehabilitate the offender by putting in place conditions that aim to alter or modify the future behaviour of the individual to prevent them from reoffending
3. to deter the offender/others from commiting the same/similar ofence
4. to protect the community from the harmful actions of the offender
5. to denounce the crime- to demonstrate the court’s condemnation of the particular offence
6. to provide restorative justice-an opportunity for the offender to make amends to the victim or restoring the relationshi[ between the community, the victim and the offender

Question 24

What are the three main factors that a judge considers in sentencing?

Answer 24

1. the purpose of the sentence to be imposed
2. any mitigating factors - these are factors that will reduce the responsibility or blame on the person for the commission of the offence and will generally reduce the penalty imposed
3. any aggravating factors - these are factors that will increase the responsibility or blame on the person for the commission of the offence and will generaly increase the penalty imposed

Question 25

What are the types of sanctions?

Answer 25

• custodial sentences: a prison term, is considered a last resort
• suspended custodial sentence: on the condition that the offender does not reoffend within a specified time
• community based work orders: a sanction given to minor and recurrent offenders who are released on the condition that they complete a program with a community service requirement
• intensive supervision order: generally in conjunction with a treatment program/community service requirement/curfew
• fines: monetary penalty for most minor summary offences
• spent conviction: conviction does not appear on person’s public criminal record
• release without sentence: the court may decide not to impose a penalty for a trivial or technical offence that would cause an injustice

Question 26

What are alternative approaches to resolving legal conflicts?

Answer 26

• self-help
• negotiation - generally direct negotiation between parties, if that fails a lawyer usually becomes involved
• mediation - neutral third party who assists parties in a dispute to reach negotiated solution
• independent arbitration - independent third party who hears both sides of a case and adjudicates on the outcome, rules of arbitration are set by statute, decision cannot be appealed in court
• specialist courts and tribunals