Criminal and Civil Pre-Trial Procedures

Question 1

Definition and aim of bail.

Answer 1

Bail is when the accused is released from custody after being charged on condition that they appear in court at a later date. The main aim of bail is to allow the accused person the opportunity to prepare a case, and also to protect the presumption of innocence.

Question 2

A surety is

Answer 2

another person over the age of 18 who is prepared to guarantee the accused person will attend court.

Question 3

Conditions of bail include:

Answer 3

• A curfew
• A promise of appearance in court at a later date
• Reporting to a police station (on a regular basis)

Question 4

Definition and aim of remand.

Answer 4

Someone who is refused bail will be held on remand until the case comes to trial, or until bail is granted in the future. The aim is to protect the community against the actions of an accused person. Also assures the accused will be present for the trial.

Question 5

Committal Hearings:

Answer 5

Heard in the Magistrate’s Court and occurs after the decision of bail or remand has been made.

Question 6

Aim of Committal Hearings is

Answer 6

to determine if there is sufficient evidence to support a conviction by a jury at trial. (Prima Facie). Hand-up briefs determine this.

Question 7

Hand Up briefs (written statements) includes things such as

Answer 7

Written Statements
Interview Transprits
Copies of Evidence the prosecution intents to produce as evidence.

Question 8

Committal Mention Hearings is

Answer 8

a form of pre-pre-trial procedure, as it occurs before the ‘Committal Hearing’. The court may determine whether the matter should be heard summarily.In this stage, the Court may ask the accused how they will plea. If guilty, and there is sufficient evidence to support the conviction, the accused will be sent for sentencing.

Question 9

Direct Indictment:

Answer 9

It is possible to omit the committal proceedings stage if granted by the Office of Public Prosecutions. This can only be done if the prosecution has a very strong case and was trying to avoid the trauma, expense and time involved in committal proceedings.

Question 10

Punishment

Answer 10

the offender must be punished to an extent and in such a manner that society can feel a form of retribution for the offender’s actions.

Question 11

Deterrence

Answer 11

the sanction should be such that it will deter the offender or other individuals from committing a similar offence. The sanctions are therefore aimed at discouraging people from committing similar crimes. This is known as general deterrence as it aims at deterring the general public. Sanctions can also be specific deterrence in that they may deter the offender from committing the same crime again.

Question 12

Rehabilitation

Answer 12

a court may consider the possibility of helping the offender, and assisting them into changing their attitudes and readying them to take their place in society. This could be through a good behavior bond or a Community Corrections Order (CCO). Programs include (trade training).

Question 13

Denunciation

Answer 13

nvolves the expressing of the disapproval of the court. A particular punishment may be given to show to the community that the court may highly disapprove an offender’s actions.

Question 14

Protection

Answer 14

the court may decide on a sanction that protects society for an individual or group deemed too dangerous to remain with other law-abiding citizens, this is often achieved through imprisonment.

Question 15

A sanction is a

Answer 15

legal consequence given to a person found guilty of, or has pleaded guilty to a criminal offence.

Question 16

Fine

Answer 16

is a monetary penalty paid by the offended to the court. Under the Sentencing Act, fines are calculated in ‘penalty units’, with one penalty unit being equal to $155.46. This enables the government to increase all fines by increasing the value of a penalty unit without changing all the relevant Acts. If a fine is not paid the offender can be imprisoned or ordered to do community work.

Question 17

Imprisonment is when an

Answer 17

offender is detained in jail for a period of time, called a ‘sentence’. They lose their sense of liberty and other freedoms. This is considered the most serious sanction, as it mainly used as a ‘sanction of last resort’.

Question 18

Community Correction Order

Answer 18

is a supervised sentence served in the community and includes special conditions such as treatment and unpaid community work of a specified number of hours. A CCO can be imposed for up to 2 years in the Magistrate’s Court, and for between 2 years and the statutory maximum term of imprisonment for that offence in the County or Supreme Court. The penalty for contravening a CCO is 3 months’ jail or a fine up to 20 penalty units.

Question 19

Purpose of a CCO

Answer 19

is to provide an order that fits the offence or circumstances of the offender in order to address those problems.

Question 20

Basic conditions attached to a CCO include:

Answer 20

• Does not commit another offence punishable by imprisonment.
• Does not leave Victoria without permission.
• Reports to and receives visits from a Community Corrections Officer.

Question 21

One special conditions that these may include:

Answer 21

Treatment and rehabilitation – the offender will be required to undergo treatment and rehabilitation ordered by the court which addresses the underlying causes of the offending. This could be treatment for drug abuse or dependency, medical assessment and treatment, or vocational or educational treatment.

Question 22

Prior to pleadings

Answer 22

a letter of demand may be issued to the defendant by the plaintiff. The letter of demand informs the defendant of the nature of the claim and outlines the remedy sought. It demands that the defendant comply with the wishes of the plaintiff with a certain time limit. (10 days)

Question 23

Pleadings are a

Answer 23

series of documents exchanged between the parties. They set out and clarify the slain and the defences of the parties and help to define the issues that are being disputed.

Question 24

A writ is the

Answer 24

most common method of commencing a proceeding in the Supreme Court. It is issued by the plaintiff in a civil proceeding explaining the action being taken against the defendant, and informing the defendant of the place and mode of trial.

Question 25

Statement of Claim is a

Answer 25

document exchanged as part of pleading which notifies the defendant of the nature of the claim, the cause or the claim and the remedy sought. This is often included with the writ, but can be separate.

Question 26

Notice of appearance is a

Answer 26

document exchanged which informs the court and the plaintiff that the defendant whites to defend the claim.

Question 27

Request for further and better particulars is an

Answer 27

optional step in the pleadings process. A party may file and serve a request for further and better particulars of the other party’s claim or defence. This is a request for more details of the claim or the defence.

Question 28

Purpose of Pleadings:

Answer 28

• Ensure that each party is aware of the specific claims made by the other side.
• Ensure that each party is aware of the way in which the other side sees the facts of the case.
• Give the court a written record of the details and progress of a case.
• Speed up resolution by encouraging agreement or as many issues as possible before trial.
• Encourage efficient preparation by imposing time limits on each document exchange and filing.

Question 29

Discovery is the

Answer 29

compulsory disclosure, by one party to an action to another, of relevant testimony or documents.

Question 30

Purpose of Discovery:

Answer 30

• Assisting the parties to prepare for the trial by allowing them to see the evidence that will be brought against them.
• Encouraging parties to agree on as many issues as possible and narrow matters in dispute by allowing them to see evidence they may not already have.
• Providing the court with a record of all the evidence to be brought in the case, by requiring that affidavits be filed with the court.
• Encouraging the party with the weaker case to settle before trial.

Question 31

Interrogatories is when

Answer 31

both parties have the right to request more information from the other or to ask further questions to gain a better understanding of the facts that might be useful in evidence. It aims to deal with certain matters before court and also reduce the element of surprise at court.

Question 32

Recent Changes to Discovery:

Answer 32

It gives a court power to order parties to prepare a statement of issues, which may be used for many purposes including discovery.
It gives a court power to order a party to pay a specified amount to another party in relation to the costs of discovery, including by way of payment in advance

Question 33

Directions hearings are

Answer 33

conferences with the trial judge where the court may give any directions for the conduct of the case that they believe will assist effective, prompt and economical resolution. A directions hearing takes place not less than 35 days after the defendant has filed an appearance, normally after a defence has been filed.

Question 34

In a directions hearing, the court could direct that the parties to:

Answer 34

Disclose a particular class of documents by a certain date, particularly where there has been a dispute between the parties about the relevance of those documents.
Exchange written submissions.
Organise and attend mediation.

Question 35

Purpose of a directions hearing :

Answer 35

Give directions in the proceedings to ensure an effective, complete, prompt and efficient determination of the case.
Set a timetable for future steps in the pre-trial proceedings so that the matter can progress towards trial.
Determine whether it is appropriate for the parties to be referred to mediation or some other alternative dispute resolution method (which can therefore be seen to be encouraging an out-of- court settlement)
Allocate a date for trial.

Question 36

The purpose of civil remedies:

Answer 36

Return the parties (especially the plaintiff) to their original position before the plaintiff’s rights were infringed.
To compensate the plaintiff for the infringement of their rights, if returning them to their original position is not possible.
A remedy may aim to prevent the harm from occurring in the first place, or to prevent further harm occurring.

Question 37

Specific Damages:

Answer 37

Awarded to compensate the plaintiff for items that can be calculated objectively and exactly e.g. loss of wages, medical expenses and hospital expenses.

Question 38

General Damages:

Answer 38

Awarded to compensate the plaintiff for pain and suffering. These cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life.

Question 39

Aggravated Damages:

Answer 39

Awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.

Question 40

Nominal Damages:

Answer 40

re awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss. The court therefore awards a very small amount as compensation. This may occur in a defamation case.

Question 41

Exemplary Damages:

Answer 41

court seeking to punish a defendant and denounce an action. Exemplary damages may be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.

Question 42

Injunctions

Answer 42

are a civil remedy aimed at stopping someone from doing something or making someone do something. They can be granted on a temporary or long term basis.

Question 43

Restrictive Injunction:

Answer 43

An injunction stopping someone from doing something, for example, a person could apply for a restrictive injunction to stop a building being destroyed if it were in the interests of the nation to preserve.

Question 44

Mandatory Injunction:

Answer 44

Sought when a person wishes to compel someone to do a particular act, for example to remove something from their land.

Question 45

Order of Specific Performance:

Answer 45

An order of specific performance is an order directing someone to complete a contract. This type of civil remedy is normally used in disputes relating to contracts for the sale of land.

Question 46

Rescission order:

Answer 46

This is a court order terminating a contract. Both parties are returned to the position thy were in prior to the contract being signed.

Question 47

Restitution order:

Answer 47

This is an order in which the court orders the defendant to return goods belonging to the plaintiff.