10/07/2017
•••Commonly Used Legal Terms•••••
following list provides definitions of common terms used in the criminal justice process.
A
Accused
A person charged with committing a criminal offence or offences in a higher court. Other words for accused are “defendant” and “alleged offender”.
Acquit/Acquittal/Acquitted
When the magistrate, jury or appeal court find that a person is not guilty of the crime.
Adjournment (During the Trial or Hearing)
A break for morning tea or lunch or for ‘legal argument’ (see below). It can also mean when a trial or legal proceedings are put off until another day.
Admissible
Used to describe evidence that is allowed to be given in court and taken into account in the proceedings. Not all evidence is admissible.
Adversarial
The Australian legal system is known as an adversarial system, where the prosecution lawyers and the defence lawyers will offer opposing arguments. They will argue in court about the facts, witnesses evidence and/or legal issues.
Affidavit
A statement which is signed and made on a religious book such as a Bible before a judicial officer or solicitor. An affidavit can also be made by way or affirmation if the person doesn’t want to swear on a religious book. The person signing the legal document states that the contents are, to the best of their knowledge, true.
Affirmation
A promise to tell the truth in court. Used by people who do not wish to swear on the Bible or other religious book. See also “Oath”.
Allegation
An assertion made by a party in legal proceedings that is still to be proven.
Alleged offender
Until a person is proved to be guilty of a crime, the person is an “alleged offender”, an “accused” or a “defendant”.
Antecedents
A person’s criminal record and background. This is not normally disclosed to the jury, but will be given to the Judge if the person is found guilty and is to be sentenced or where the issue is whether the accused should be released on bail or held in custody pending the hearing.
Appeal
To take a case to a higher court in order to challenge a decision. The person who appeals is the appellant. Not all decisions can be appealed.
Arraignment
Where the details of the charge (called an indictment) are read out to the accused in court. The accused will then be asked to plead guilty or not guilty.
Arrest
The procedure where a person is taken into police custody to be charged with a criminal offence or to be brought before a court and must remain in police custody until granted bail or until a court deals with their charges.
B
Bail
In criminal proceedings bail refers to the release of a prisoner from legal custody and an agreement, sometimes described as an “undertaking”, to turn up to court. A person on bail may be required to abide by certain conditions.
Balance of Probabilities
The test (or standard of proof) used by a court in civil proceedings. It states that something must be more likely to have happened than not to have happened.
Barrister
A lawyer who specialises in court presentation and usually wears a wig and gown in the higher courts.
Bar Table
A long table near the front of the courtroom where lawyers stand when they are addressing the court and sit when others are addressing the court.
Bench
The elevated seat at the front of the court where the judge or magistrate sits. Alternatively, the term bench may be used when referring to the judge or magistrate sitting on the case or as a collective term when referring to a number of judges, including those sitting on the same case.
Bench Warrant
A court ordered warrant for arrest.
Beyond reasonable doubt
The test (or standard of proof) used by a jury, judge or magistrate to decide if the accused or defendant is guilty or not guilty of each criminal charge. It must be proved beyond reasonable doubt that a person has committed an offence before they can be found guilty.
Breach
To not comply with a court order, such as a condition of bail.
Brief or Brief of Evidence
This is a collection of statements from witnesses (both police and ordinary witnesses), expert reports, medical reports, photographs, bail papers, charge sheets etc. that is given to the CDPP by the police or investigating agency after they have finished their investigation. The CDPP use the material contained within the brief of evidence to decide whether a prosecution should take place and, if so, to prosecute the accused.
C
Charge
The allegation that a person has committed a specific crime.
Closed Circuit Television (CCTV)
This is a provision that may be available to some witnesses, such as vulnerable witnesses or child witnesses, so they can give evidence to the court from a remote location.
Closed Court
A court room that is closed to members of the public.
Committal hearing
A hearing of all the evidence supporting the charge in the lower court by a magistrate who then decides if there is enough evidence for the case to go to trial. In some cases witnesses may be required to give evidence at a committal hearing.
Common Law
The law based on previous court decisions and customs as distinct from statute law created by Parliament.
Commonwealth Director of Public Prosecutions (CDPP)
The Office of the CDPP is the independent prosecuting authority responsible for prosecuting alleged offences against Commonwealth law and depriving offenders of the proceeds of Commonwealth Crimes. The CDPP may sometimes be called “the Commonwealth” or “the Crown” in Court.
Commonwealth Offence
A criminal offence against a Commonwealth or Federal law (as opposed to a State or Territory law).
Complainant
A term used in court to refer to a victim of crime.
Conference
A meeting with a solicitor / barrister to talk about the case.
Conviction
When a person accused of committing a criminal offence is guilty of that offence, a record of their guilt is recorded on their criminal history.
Counsel
A barrister acting for the defence or the prosecution.
Counsel for the Prosecution
Another name for a Prosecutor (see below).
County Court
A higher (or intermediate) court that operates in some jurisdictions. In some States/Territories the equivalent court is the District Court.
Court
The building where the case is heard. Also used to describe in general terms the judicial officer hearing the case, such as a Magistrate or Judge.
Court Officer
A person employed to assist with the running of the court. The Court Officer will call your name when you are required by the court to give evidence.
Crime
An illegal (or unlawful) act.
Criminal history
A record of offences of which a person has been convicted.
Cross-examination
When a witness for one party (for example the prosecution) is asked questions in court by the lawyer for the other party (for example the defence) to check the testimony the witness has already given. See also examination in chief.
The Crown
In higher courts the prosecution may be referred to as ‘the Crown’, that is, representing the Queen in right of the Commonwealth.
Custody
A person who is in custody is either in a remand centre (awaiting a hearing) or in prison, serving out a sentence.
D
Defence
The accused person’s case and the lawyers who represent them.
Defence counsel
A barrister who presents the accused person’s case in court.
Defendant
A person who is charged with a criminal offence. Another word for “an accused” is “defendant”.
Deliberations
The process taken by a jury to decide whether the accused is guilty or not guilty. The jury leaves the court and goes to a special room to deliberate the verdict.
Deposition
A typed copy of the evidence recorded in court.
District Court
A higher court (or intermediate) court that operates in some jurisdictions. In some States the equivalent court is the County Court.
Dock
An enclosure in a court where a defendant usually sits during court proceedings. Not all courts have a dock.
E
Electoral Roll
The list of names of people registered to vote. This list supplies the names of people who could be asked to do jury duty.
Empanel a Jury
The process of selecting a jury (usually 12 people) from a larger group that have been called to perform jury duty.
Evidence
Information provided to the court that is used to prove or disprove a fact in issue in court proceedings.
Evidence-in-Chief/Examination-in-Chief
When the prosecutor asks the witness questions so that they can tell the court what happened.
Exhibits
All the other evidence (apart from evidence from witnesses) needed to help present the case to the court, for example items such as documents, photographs, clothing or other items relevant to the case.
F
Forensic Evidence
Evidence found where the crime occurred, such as fingerprints, results of blood tests, DNA etc.
Forensic Medical Examination/Procedure
The victim and/or accused may be requested to undergo an examination, for example, a mouth swab, in order to provide possible evidence for the case.
For Mention Only
Where the case appears in court for a brief time, usually to deal with a procedural matter such as setting dates and deciding bail. A mention is not the ‘hearing’ of the matter. A witness is not usually required to attend court when the matter is for mention only. See also “Mention”.
G
Guilty
To be legally responsible for a criminal offence. When a defendant enters a plea of guilty, he or she accepts responsibility for the offence .When a defendant pleads not guilty, a jury will determine the guilt of the defendant if the matter proceeds as a trial in a higher court. Where a defendant pleads not guilty in the Magistrates or Local Court the Magistrate determines the guilt of the defendant.
H
Hearing
A proceeding where the evidence is presented to the court after an accused or defendant has pleaded not guilty.
Higher Court
A Court such as a District Court, County Court or Supreme Court that hears more serious matters. A Judge or Judges sit in a higher court. There is a jury for a matter heard before a higher court concerning an offence against Commonwealth law.
Hung Jury
An outcome where the people on a jury cannot agree whether the accused is guilty or not guilty.
I
In Camera
To be conducted privately, for example in a closed court or the Judge’s private room or chambers.
Indictable Offence
A serious criminal offence that is usually heard in a higher court before a judge and jury. Less serious indictable offences, known as summary offences, are usually heard in a Local Court.
Indictment
A formal written accusation charging a person with an offence that is to be tried in a higher court.
Instructing solicitor
A solicitor who helps with the preparation of the case and assists the barrister in court.
J
Justice of the Peace (“JP”)
The functions of a Justice of the Peace include witnessing oaths, statutory declarations and other legal documents.
Judge
The Judge is in charge of the court and makes sure that it is conducted fairly for both sides. The Judge is referred to as “Your Honour”. The Judge decides the sentence for offenders . A Judge sits in a higher court.
Judge’s Associate
A person who helps the judge with legal and administrative court matters. In a hearing, a judge’s associate may arraign the defendant and help with recording the documents used in the case, such as exhibits.
Juror
A member of the jury. See also “Jury”.
Jury
A group of (usually) 12 people chosen at random from the general community who are tasked with the responsibility of determining whether the defendant is guilty on the evidence presented in a criminal trial. The jury determines the verdict (that is, whether the accused is Guilty or Not Guilty).
L
Legal argument
An argument between the lawyers on both sides involving legal matters that has to be decided by the Judge. The witness and jury usually leave the courtroom when this happens.
Local Court
A lower court which hears less serious matters (“summary offences”). A Magistrate sits on a Local Court/Magistrates Court without a jury.
Lower court
A Magistrates Court or Local Court which hears less serious matters. A Magistrate sits on a lower court. There is no jury present in matters heard before a lower court.
M
Magistrates Court
A lower court which hears less serious matters. A Magistrate sits on a lower court without a jury. The Magistrate decides the sentence for offenders when found guilty.
Matter
A prosecution or a proceeding in a court (a “case”) may be referred to as a “matter”.
Mention
This is where the case appears in court for a brief time, usually to deal with a procedural matter and is not the ‘hearing’ of the matter. This includes setting dates and deciding bail. A witness is not usually required to attend court when the matter is for mention only.
Mistrial
A trial that is without legal effect due to an error in the proceedings.
My learned friend
A phrase that is customarily used by lawyers in the courtroom when referring to the opposing lawyers.
N
No Bill / No Further Proceedings
The CDPP may decide that a case will not proceed further, for example, due to insufficient evidence. This may be called entering a ‘no bill’ or deciding there will be no further proceedings. A prosecution is discontinued when the court is informed of this.
Nolle Prosequi
A decision made not to proceed with a charge or charges that have already been presented to the court on indictment. A prosecution is discontinued when the court is informed of this. Another term for a “nolle prosequi” is a “no bill”.
Not Guilty
A plea made by an accused person to a criminal charge which then requires the prosecution to prove the person’s guilt in court. A Not Guilty verdict represents the prosecution’s failure to establish the accused’s guilt beyond reasonable doubt.
O
Oath
A promise to tell the truth in court by swearing on a religious book, for example the Bible, that is important to the person making the promise. See also “Affirmation”.
Objections
When the defence or prosecution believe a question should not be asked, they can object and the Judge/Magistrate must decide whether to allow the question.
Offender
A person who is found to have done something which is prohibited by law. Until this happens, a person may be termed an alleged offender/defendant/accused.
Open Court
When the public gallery of the court is open to members of the public and any other interested persons.
Opening Address
An introductory speech made by Counsel to the Court outlining the party’s case and evidence.
P
Paper Committal
A paper committal is when the Magistrate reads the brief and decides on that reading that there is enough evidence to send the case to trial.
Parliament
The highest law-making body, also known as the legislature.
Part Heard
A matter is part heard when court proceedings have begun but are not completed.
Parties
There are generally two parties to the proceedings in a criminal matter, the Commonwealth and the accused/defendant (defence).
Plea
When the accused person tells the court whether they are guilty or not guilty of the charge. If an accused pleads guilty a trial does not take place and the matter proceeds to a sentencing hearing.
Pre-Sentence Report
A report to assist the court in deciding what sentence to give a person who is found guilty of an offence. If the offender is in custody (prison), a Pre-Sentence Report may include information about the person’s behaviour in custody.
Prima Facie
On first appearance. A prima facie case is one which, on first appearance, contains sufficient evidence to prove the elements of the offence.
Prosecutor / Prosecution
The CDPP lawyer or lawyers conducting a criminal case before the court.
Prosecution counsel
A CDPP lawyer or private barrister who presents the prosecution case in court on behalf of the CDPP.
Public Gallery
Seats at the back of the court where friends, family or any other interested persons can sit quietly and listen.
Q
QC
A Queen’s Counsel is a senior barrister. See also “Senior Counsel” (SC).
Quash
When a higher court discharges or sets aside a decision previously made by a lower court (for example, in the case of wrongful conviction).
R
R
The letter R commonly represents Regina, the latin term for the Queen. In criminal proceedings, “R” refers to the Crown or the Commonwealth.
Re-trial
A new trial of the same matter.
Right to Silence
A rule that a person accused of breaking the law does not have to say anything from the time s/he is questioned by police through to the end of the trial.
S
SC
Senior Counsel (a senior barrister). See also “QC”.
Sentencing
A range of penalties can be given during sentencing of an offender including imprisonment, community service orders, good behaviour bonds and fines. The Crimes Act 1914 requires the court to have regard to a number of factors in deciding on the sentence for a federal offence and also requires that the sentence be of a severity appropriate in all the circumstances of the offence.
Sheriff’s Officer
An officer responsible for security of all parties while at court. You can advise the Sheriff’s Officer if you have any concerns for your safety.
Statement
A written document that sets out the evidence of a witness.
Subpoena
A court order to summon (make) a witness come to court to give evidence and/or bring documents to court.
Summary Hearing
A hearing in a lower court where all evidence is heard and a final decision is made before a Magistrate alone (without a jury).
Summary Offence
A less serious criminal offence that may be dealt with by a lower court.
Summing Up
A judge’s review of the evidence and explanation of the law for a jury.
Summons
An order from a lower court requiring the accused to come to court to answer a charge. Sometimes this document has another name, such as “Court Attendance Notice”.
Support Person
A witness will sometimes have a support person (for example, a friend or family member) who can sit near them in the courtroom.
Supreme Court
A higher court that hears more serious matters (see “Indictable Offence”). A Judge or Judges sit on a Supreme Court matter. There is a jury for Commonwealth trials in a Supreme Court.
T
Transcript
A typed copy of what was said in the court. See also “Deposition”.
Trial
A hearing in a court where all evidence is heard and a final decision is made. In higher courts a trial is conducted before a Judge and jury. In lower courts, a trial is usually called a “hearing” and is heard before a Magistrate.
U
Unanimous (verdict/decision)
A decision where all members of the Jury agree that the accused is guilty or not guilty of an offence.
Undertaking
A promise made in the course of legal proceedings by a party or their counsel.
Unrepresented
An unrepresented accused person or defendant is one who is not represented by a lawyer.
V
Verdict
The decision of a jury in a criminal trial as to whether an accused is guilty or not guilty of an offence.
Victim
A person who has suffered harm as the direct result of an offence or offences.
Victim Impact Statement (VIS)
A statement written by a victim that may be read or presented to a court after an offender has been found guilty of an offence and before the offender is sentenced. The VIS informs the court about the harm suffered by the victim as a result of the offence. In sentencing, the court is required to consider a number of factors including the injury, loss or damage to a victim, resulting from the offence.
Voir dire
Legal argument about the admissibility of a particular piece of evidence in court. The witness and the jury are sent out of court while this argument takes place.
W
Witness
Any person who has to come to court and answer questions in front of a Magistrate or Judge and jury.
Witness expenses
Witnesses may be paid expenses, in accordance with a set scale, as a contribution towards loss of wages, travel and related expenses.
Published by:
E.N OSITA Esq.
09071746705
