Criminal vs Civil Justice System in Australia - Essay Example

Australian Justice Studies - Civil and Criminal Justice Systems. 1. Identify what is a criminal action, how it is commenced and explain how it progresses through Court. What constitutes crime usually reflects the values of a society. This explains why an action that is considered fairly normal in one society may be considered a crime in another. For example, in some countries it is perfectly all right for a man to marry four wives. In many others, however, this will be a crime. Why? Because the laws would indicate that such is the case. Generally, “Criminal liability is imposed on conduct felt to be against the general interests of society…The types of conduct which are considered criminal vary from society to society…As general attitudes change over time, so do attitudes to the kinds of behaviour we label as criminal. And at any stage in a society, there will be some kinds of behaviour about which there is dispute…” (Elliott and Quinn 2004 p1). When an individual or the state has an indication that someone has violated one of the laws of the land, the decision might be made by one or more of the parties affected to commence criminal action. There are some cases in which the state itself stands in the place of society to bring action against the person thought to have committed the crime. For example, when there is a murder or a rape the state prosecutor can decide, on the basis of investigations and evidence at his or her disposal to charge a suspect in a court of law. The process, for commencing criminal proceedings, begins in all cases with the filing of a report that a crime has been committed. The initial report may have come from private citizens to the police who then initiate investigations to ascertain the facts as far as is possible. “At the stage of gathering evidence many complex legal rules come into play, rules which govern how the police must conduct their investigation and how they obtain evidence. There are rules which require the suspect to be cautioned (a caution informs the suspect of his or her right to remain silent). There are rules that control the interviewing process (there are complex rules governing the collection of confession evidence), and rules which control the search and seizure of evidence. Discretion and the lack of transparency are key features of the pre-trial process” (Criminal procedure http://law.anu.edu.au/criminet/tproc.html#over). It is possible that while the investigations are in progress the suspect is arrested. This may be with a warrant or without. Once an arrest has been effected a bail may be granted for the release of the suspect or he or she may continue to be held. In some cases a summons is issued to a person advising him or her to appear in court. In many states in Australia, regardless of whether a crime is indictable or summary the process begins with “the laying of an information. The information is a short written statement which makes an allegation that the person named has committed a summary or indictable offence. It contains a brief statement of the facts. It is sworn before a justice of the peace or clerk of the court, and then lodged with the court” (Criminal proceedings http://law.anu.edu.au/criminet/tproc.html#over). The information is in most cases filled out by a police officer. A defendant who is in the custody of police will be brought before a magistrate to answer questions regarding the charge. “So the laying the information begins the proceedings for both indictable and summary matters. The information is laid before a magistrate in both cases. After this point, the proceedings for summary and indictable offence diverge” (Criminal proceedings http://law.anu.edu.au/criminet/tproc.html#over). 2. Identify what is a civil action, how it is commenced and explain how it progresses through Court. A civil action, as opposed to a criminal action, is usually brought by one or more private citizens against an individual or entity not for the purpose of charging the accused with a crime but to establish culpability in the hope that some damages will be paid to those instigating the action. Another way of putting it, is as follows: “A civil case is one in which a party (a person, a company or the Government) is in dispute with another party and seeks compensation or some other remedy” (Queensland courts http://www.courts.qld.gov.au/about/process.htm#civil%20action%20started).There have been cases in which those bringing the charges may simply want an acknowledgment of responsibility rather than money. In any case, it is important to know that there are time limits often associated with the initiation of civil action. This means that a person who wants to initiate action in a civil court needs to observe the statutes of limits and to file the action within the stated time period allowed. For example, in the case of contracts, the action must commence within six years while in cases involving land and mortgages, 12 years are allowed (Time limits in Civil action). Civil action may also be commenced for personal injuries. To commence a civil action, one party, the plaintiff, presents a document in a registry at the court. There are many different documents tailored for particular civil actions. It is important that the person who is supposed to have infringed on the rights of the plaintiff, the defendant, be served with the writ or the plain. Once the defendant has received the writ or plain it would be necessary to give an indication to the court that the documents have been received. “To do this the defendant has to lodge a form generally referred to as an appearance. If the defendant does not lodge an appearance or raise any other objections, the plaintiff automatically wins the civil action and judgment is given in the plaintiff's favour. If the defendant does lodge an appearance, the case is considered to be defended and continues” (Queensland courts http://www.courts.qld.gov.au/about/process.htm#civil%20action%20started). Pleadings, which include a statement of claim by the plaintiff may be sent to the defendant who in turn returns a defence in which an admission or denial of guilt is stated. In some cases, the defendant might file a counterclaim in connection with the claims that are being made against him or her. In other words, the defendant might feel that in some way the plaintiff is culpable in some way. Once the cases on both sides have been prepared a trial date will be set to be heard by a judge or in some cases a jury of four. It is customary to have the plaintiff’s case stated first and for the defendant to respond to any issues that have been raised. It is not enough for the plaintiff to make accusations. “The plaintiff must produce enough evidence to establish that his or her case outweighs the defendant's arguments. This standard of proof is known as the balance of probabilities. Evidence in civil trials can be by witnesses' testimony or sworn statements known as affidavits” (Queensland courts http://www.courts.qld.gov.au/about/process.htm#civil%20action%20started). The judge, following the hearing, might decide to render judgment or to withhold such judgment until a future time. It is important to note that the terms “guilty” and “not guilty” are not used in a civil trial. The success of the plaintiff means that judgement is made against defendant, who might have to pay monetary compensation to the plaintiff. Failure of the defendant may end the case but the plaintiff might have to pay the defendant. Any of the parties who disagrees with the judge’s verdict might choose to lodge an appeal in the Court of Appeal. . 3. Identify the relevant courts involved and explain their jurisdictions. In terms of civil courts a low cost way to recover amounts of less than $7,500 may involve The Small Claims Tribunal. This usually involves a claim by a consumer against a trader or a claim between traders. There may also be claims for damage to property or other disputes such as those relating to fences, mobile homes, or residential tenancies. A magistrate, referred to as a referee usually hears such cases. This is a do-it-yourself court so lawyers are not permitted unless the two sides come to an agreement on that. There are no appeals though there are provisions to challenge a ruling. If there is money involved in the claim the application should be filed with the Magistrates Court before the judgment can be enforced” (Civil courts http://www.legalaid.qld.gov.au/Category/Civil/CivilCourts/civilct.htm). The Magistrates Court handles civil claims up to $50,000 and cases are heard by a Magistrate who may sit alone. Such magistrates are addressed as “Your Honour.” Though it is possible for an individual to represent himself or herself it is not uncommon for the parties involved to have the representation of lawyers. “An appeal is available to the District Court, however a security for costs must be lodged” (Civil Courts http://www.legalaid.qld.gov.au/Category/Civil/CivilCourts/civilct.htm). There is also a District Court which handles civil claims in which the amounts of concern range between $50,000 and $250,000. A district judge is responsible for hearing such cases and in some cases, such as defamation, the parties may decide to have a jury sit in on the proceedings. The complexity of cases at this level often means that lawyers are involved. A case that is appealed at this level goes to the Court of Appeal. For amounts over $250,000 the Supreme Court is in charge. The powers of the Supreme Court are the most extensive and the parties to cases filed at the Supreme Court may opt for a jury. Once again, an appeal is possible, and may be referred to the Court of Appeal. The Federal Court usually focuses on matters that arise on the basis of Commonwealth Law such as copyrights, trade practices, or bankruptcy. A judge hears the cases and lawyers are routinely used in this court. Appeals can go to the Full Court of the Federal Court. In the case of constitutional cases, and in particular those with relevance to the Commonwealth, the High Court of Australia handles those cases and lawyers must be used. In the case of criminal matters that involve people who are over 17, the Magistrates Court is the place where proceedings may start. This court generally handles matters that are not considered too serious. Serious offences are usually passed on by the Magistrates Court through a process known as committal to a higher court. There is usually no jury in summary magistrate court matters; this means that the Magistrate in charge sits alone. It is possible to have legal representation and where needed a duty lawyer can represent the accused. The Magistrates Court, which is an open court, allows anyone to watch the proceedings. In some cases the courts might declare a closed court, in which case, of course proceedings are not open to the public. For children who are 16 and lower there is a Children’s Court which is headed by a Magistrate. When the offences, however, are very serious they may be referred to the Children’s Court Judge or indeed to a higher court. Lawyers are allowed and where needed a duty lawyer may represent the accused. The District Court, mentioned above, also handles indictable criminal offences though it does not handle murder and very serious drug offences. Those are handled by the Supreme Court. Appeals from the District Courts, as noted above, go to the Court of Appeals (Criminal Courts http://www.legalaid.qld.gov.au/Category/criminal/CriminalProcedure/crimct.htm). The Court of Appeal has three judges and makes no use of a jury. It only handles appeals and it is recommended that parties using this court make use of legal representations. Appeals from The Court of Appeal go to The High Court where legal representation is necessary. 4. Identify and explain the standard of proof in both civil and criminal actions. In an Australian criminal court, as is indeed the case with those countries following Commonwealth law, “the task of the prosecution is to prove the guilt of the accused beyond reasonable doubt. The accused has to prove nothing. The onus of proof is on the prosecution and the standard of proof is beyond reasonable doubt” (Coldbeck 1997). This relates to the popular saying, “innocent until proven guilty.” In other words, everybody is presumed to be innocent until the prosecution has been able to establish that the accused, beyond reasonable doubt, is guilty of the offences for which he or she is charged. This is a fairly high standard. The standard of proof required to establish the commission of a crime in a civil court is based on a much less onerous standard. As The High Court, in Neat Holdings Party Ltd. v. Karajan Holdings Party Ltd.16 noted: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. . . the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities. (Coldbeck 1997) This difference explains why a person who has been cleared of criminal wrongdoing might nevertheless be judged culpable in a civil proceeding. 5. Identify and explain rights and limitations of parties in both criminal and civil matters. Parties who have been accused or asked to appear before a court of law need proper notification. In the case of criminal matters though the law may allow people to be arrested they have the possibility of posting bail, which ensures that they will honour their appearance in a court to answer to the charges. In civil proceedings there are statutes of limitations which require that initiation of litigation regarding certain matters be brought before the court within an allotted time. When people are defendants in a court case they are not automatically assumed to be guilty but are given an opportunity to respond and to have legal representation. Also, a person who is arrested because of a crime has the right to remain silent and to avoid saying anything that will be self-incriminating. 6. Identify and explain a range of outcomes for civil and criminal actions. In both civil and criminal actions damages may be imposed in the form of financial compensation. In criminal cases, the outcomes may involve serving prison time or in some cases doing community service. The bottom line is that often the outcome in a criminal trial has a lot to do with punishment or deterring others from engaging in similar actions whereas in the case of civil litigation compensation is often the outcome and the intended goal though some may initiate civil litigation on a point of honour or principle. Bibliography “Civil Courts.” http://www.legalaid.qld.gov.au/Category/Civil/CivilCourts/civilct.htm (October 5, 2006) Coldbeck, Peter. “Australian Perspective: Proving Insurance fraud.” Federation of Insurance & Corporate Counsel Quarterly, Vol. 48 Issue 1 (Fall 1997(:121. “Criminal Courts.” http://www.legalaid.qld.gov.au/Category/criminal/CriminalProcedure/crimct.htm (October 5, 2006) “Criminal procedure.” http://law.anu.edu.au/criminet/tproc.html#over (October 5, 2006). Elliott, Catherine and Quinn, Frances. Criminal law, Sydney, Australia: Pearson/Longman, 2004. “Queensland courts – procedure.” http://www.courts.qld.gov.au/about/process.htm (October 5, 2006) “Time Limits in civil law.” http://www.legalaid.qld.gov.au/Category/Civil/CivilCourts/timelimt.htm (October 5, 2006). Read More