Criminal & Civil Trial Procedure

Question 1

What is the onus of Proof?

Answer 1

The obligation of a party to produce the evidence that will prove the claims they have made against the other party.

Question 2

What is the standard of proof for Civil and Criminal cases?

Answer 2

Civil - The balance of probability.

Criminal - Beyond reasonable doubt.

Question 3

What is a tort?

Answer 3

A wrongful act or an infringement of a right.

Question 4

What are the four torts?

Answer 4

Defamation, Trespass, Negligence, and Nuisance.

Question 5

What is defamation?

Answer 5

The action of damaging the good reputation of someone.
Slander - spoken defamation.
Libel - written defamation.

Question 6

What is trespassing?

Answer 6

The act of entering someone’s land or property without permission.

Question 7

What is assault?

Answer 7

An act that threatens physical harm to a person, whether or not actual harm is done.

Question 8

What is nuisance?

Answer 8

An act which is harmful or offensive to the public or a member of it.

Question 9

What is the Adversarial Trial System?

Answer 9

A legal system used in the common law countries where two advocates represent their parties’ case or position before a jury or judge.

Question 10

What are aggravating factors?

Answer 10

Any fact or circumstance that increases the severity or culpability of a criminal act.

Question 11

What are mitigating factors?

Answer 11

Any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.

Question 12

What is judicial discretion?

Answer 12

The power of the judiciary to make some legal decisions according to their discretion.

Question 13

What is a criminal offence?

Answer 13

An act harmful not only to some individual but also to a community, society or the state.

Question 14

What is an indictable offence?

Answer 14

An indictable offence is an offence where the defendant has the right to trial by jury.

Question 15

What is a summary offence?

Answer 15

An offence within the scope of a summary court. These offences are often less serious than indictable offences.

Question 16

What is a remedy?

Answer 16

A means of legal reparation. Remedies include damages (nominal,

Question 17

What is a sanction?

Answer 17

A threatened penalty for disobeying a law or rule. Sanctions are given for criminal cases, and can include prison sentences, fines,

Question 18

Define remand.

Answer 18

The act of placing a defendant on bail or in custody, especially when a trial is adjourned.

Question 19

Define bail.

Answer 19

The temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.

Question 20

What is an examination-in-chief?

Answer 20

The questioning of a witness by the party which has called that witness to give evidence, in support of the case being made.

Question 21

Name the first step in civil pre-trial procedure.

Answer 21

Pleading documents:

• writ and statement of claim
• service
• notice of appearance
• statement of defence/counterclaim

Question 22

Name the second step in civil pre-trial procedure.

Answer 22

Further and better particulars:

• interrogatories
• discovery

Question 23

Name the third step in civil pre-trial procedure.

Answer 23

Certificate of readiness for trial.

Question 24

State the rules of evidence.

Answer 24

Hearsay, relevance, privilege, similar fact, corroboration, the right to remain silent.

Question 25

Define civil wrong.

Answer 25

An infringement of an individual’s rights.

Question 26

Define plaintiff.

Answer 26

A person who brings a case against another in a court of law, specifically in civil cases.

Question 27

What are the strengths of the adversarial trial system?

Answer 27

• The individual is responsible for their own case.
• It upholds rule of law (innocent until proven guilty).
• Impartial judge, meaning there is a fair trial.
• Right to legal representation.
• Rules of evidence.
• Burden of proof.

Question 28

What are the weaknesses of the adversarial trial system?

Answer 28

• Rich people have more resources bc they can afford better legal representation.
• Expertise of the judge isn’t fully utilised.
• More concerned with proof than truth.

Question 29

List the sanctions available for criminal cases.

Answer 29

• Custodial sentences- imprisonment
• Suspended custodial sentences- sort of like probation
• Community Service orders
• Fines & bonds

Question 30

List the civil remedies available.

Answer 30

• Damages- nominal, exemplary, compensatory
• Injunctions- to stop or start a behaviour
• Restitution & rescission
• Orders of specific performance