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Glossary of legal terms

This is a concise collection of commonly used terms which may be of assistance when covering legal stories. You may also wish to refer to more comprehensive legal dictionaries.

Amicus Curiae

Latin: friend of the court. Refers to people asking for permission to intervene in a case in which they are neither plaintiff nor defendant, usually to present their point of view (or that of their organisation) in a case which has the potential of setting a legal precedent in their area of activity.

Arraignment

The formal appearance of an accused person in the court of trial to hear the indictment (charge) against him or her, in the presence of a judge, and to then enter a plea of guilty or not guilty.

Autre fois acquit/convict (see Double Jeopardy)

French word now part of English criminal law terminology. Refers to an accused who cannot be tried for a crime because the record shows he has already been subjected to trial for the same conduct and was acquitted. If the accused maintains that the previous trial resulted in conviction, he or she pleads "autrefois convict."

ADVOs and APVOs (Part 15A Crimes Act 1900 (NSW))

Apprehended Violence Orders ("AVOs") are made if a court is satisfied on the balance of probabilities that a person has reasonable grounds to fear violence, harassment, intimidation or stalking. There are two types of AVOs:

Apprehended Domestic Violence Orders ("ADVOs") are sought in circumstances where a person is seeking protection from someone with whom he or she has or has had a domestic relationship (a relative, spouse, de facto partner, intimate or dependent relationship, or shared residence).

Apprehended Personal Violence Orders ("APVOs") are sought in circumstances where a person is seeking protection from someone with whom he or she does not have a domestic relationship.

Bail

A commitment made (and possibly secured by cash or property) to secure the release of a person being held in custody and suspected of a crime, to provide some kind of guarantee that the suspect will appear to answer the charges at some later date. This is the primary consideration where Police or Courts grant bail, however, they must also have regard to other matters such as the protection and welfare of individuals and the community generally. Bail may be made subject to conditions, for example to report regularly to police or to participate in drug/alcohol treatment programs.

Under the Bail Act 1978 (NSW) there is:

• an entitlement to release on bail for certain minor offences (s. 8);
• all other offences carry a presumption in favour of bail unless specifically excluded (s. 9);
• offences excluded from the presumption in favour of bail are:
  • serious drug and firearms offences, terrorist offences and repeat property offenders carry a presumption against bail (s. 8A, 8B and 8C);
  • people charged with murder and "repeat offenders in relation to personal violence offences need to demonstrate exceptional circumstances in order to be granted bail (s. 9C, 9D);
  • offences listed in ss 9 and 9A (including attempted murder, wounding, resisting arrest, sexual assault offences, serious robbery offences and certain drug offences) and accused persons subject to any form of conditional liberty, or who have a previous conviction for failing to appear or for an indictable offence (s. 9B) carry neither a presumption for nor against a grant of bail.

Beyond reasonable doubt (see Standard of Proof)

Burden of proof (see Onus)

Client Legal Privilege (Legal Professional Privilege)

A right that belongs to the client of a lawyer that the latter keep any information or words spoken to him during the provision of the legal services to that client, strictly confidential. This includes being shielded from testimony before a court of law. The client may, expressly or impliedly, waive the privilege and, exceptionally, it may also be waived by the lawyer if the disclosure of the information may prevent a serious crime.

Charge Negotiation (formerly charge bargaining)

Negotiations during a criminal trial, between an accused person and a prosecutor in which the accused agrees to admit to a crime (sometimes a lesser crime than the one set out in the original charge). A plea of guilty generally attracts a discounted sentence and avoids the expense of a public trial. Negotiations are conducted in accordance with the Prosecution Guidelines of the Office of the Director of Public Prosecutions.

Committal

A hearing before a Magistrate of the Local Court for the purpose of deciding whether or not the person charged with an indictable offence should be committed for trial or sentence.

Common Law

Judge-made law, which applies on the basis of historical legal precedents developed over hundreds of years. Judges seek these principles out when trying a case and apply the precedents to the facts to determine a judgment. Common law is often contrasted with code jurisdictions which require all laws to be written enacted in statute.

Contempt of Court

An act of defiance of court authority or dignity. Contempt of court can be direct (swearing at a judge or violence against a court officer) or constructive (disobeying a court order). The punishment for contempt is a fine or imprisonment

Controlled Operation

Police operations allowing what would otherwise be illegal conduct for the purpose of obtaining evidence of criminal activity and/or to arrest perpetrators (Law Enforcement (Controlled Operations) Act 1997 (NSW)).

De Novo

Latin: new. This term is used to refer to a trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred.

Detention after arrest for questioning/forensic examinations

If Police hold a reasonable suspicion that a person has committed a criminal offence, they are permitted to arrest a person and detain him for the purpose of investigating whether the person in fact committed the offence. Part 10A Crimes Act 1900 (NSW) sets out the relevant procedures. People can be detained in custody for a reasonable period, not exceeding 4 hours. This can be suspended for certain "time out" periods, and may be extended once for an additional 8 hour period.

The Crimes (Forensic Procedures) Act 2000 similarly authorises the detention of arrested people for the purpose of carrying out forensic investigations (taking samples of hair, body fluids etc).

Double Jeopardy

The Double Jeopardy Rule is founded on the maxim "that a man shall not be brought into danger of his life for one and the same offence more than once". Once a person has been brought to trial and acquitted, the person should be able to rely on that acquittal. The issue is about the operation of the presumption of innocence and providing finality to justice.

The leading case of Pearce v The Queen (1998) 194 CLR 610 restated the common law and restored limits to the pleas of autre fois acquit (where a person has already been acquitted of a charge for the same offence) and autre fois convict (which prevents double punishment where a person has already been convicted of a charge for the same offence). In Pearce, Kirby J cited Green v United States 355 US 184 (1957), in which Black J said (at 187-188):

"It is a deeply ingrained, underlying idea of the Anglo-American system of jurisprudence that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence. This would subject the person to embarrassment, expense and ordeal and compel him/her to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he or she may be found guilty."

Examination-in-chief/ Cross-examination

In trials, each party calls witnesses. Each party may also question the other's witness(es). When you ask questions of own witnesses called an "examination-in-chief". When you ask questions of the other party's witness(es), it is called a "cross-examination".

Functus Officio

Latin: an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created.

Guideline Judgments

The Court of Criminal Appeal may issue judgments that contain guidelines to be taken into account by courts sentencing offenders. Guidelines may apply generally or apply to:

• particular courts or classes of courts;
• particular offences or classes of offences;
• particular penalties or classes of penalties; or
• particular classes of offenders.

(Part 3 Division 4 Crimes (Sentencing Procedure) Act 1999 (NSW)).

Mackenzie Friend

The purpose of a McKenzie Friend someone who assists an unrepresented party in court is to aid the litigant by taking notes, organising papers and giving advice. He is not an advocate and has no rights of audience, but may speak if invited by the judge.

Natural Justice

Prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard. The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.

No-win No-fee

A conditional fee arrangement (any premium on usual professional costs is capped by the Legal Profession Act and in work injury and motor accident matters), established at the start of a matter, payable only on successful completion. If the client does not win, there is no payment to the client’s own solicitor, although the client may be liable for the other party’s costs. Such an arrangement is not permitted in criminal matters.

Obiter dictum

Latin: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purpose of setting a precedent. May also be referred to as "dicta" or "dictum".

Onus of Proof (see Standard of Proof below)

Latin: the burden. It is usually used in the context of evidence. The onus of proof in criminal cases lies with the State. It is the State that has the burden of proving beyond reasonable doubt. In civil cases, the onus of proof lies with the plaintiff who must prove his case by balance of probabilities. So "onus" refers both to the party with the burden, and to the scope of that burden, the latter depending whether the context is criminal or civil.

Pre-Trial Disclosure (see also Right to Silence below)

A statutory duty of disclosure and case management time-table that may be imposed by the Supreme Court on both prosecution and defence in complex criminal trials. Police are required to disclose all relevant information obtained during an investigation to the Office of the Director of Public Prosecutions. The DPP may be required to make full and timely disclosure of its case and all evidence available against an accused. The defence may be required to respond to the prosecution case, which will be followed by disclosure of the prosecution’s response to the response by the defence.

In addition to requirements that the defence give notice of an intention to rely on an alibi or to raise the defence of substantial impairment by abnormality of mind, the pre-trial disclosure regime requires the defence to disclose whether the accused person proposes to adduce evidence at the trial of contentions as to: insanity, self-defence, provocation, accident, duress, claim of right, automatism, or intoxication. The defence must also disclose details of the witnesses on whom the accused person proposes to rely.

(Chapter 3, Part 3, Division 3 Criminal Procedure Act 1986 (NSW)).

Presumption of Innocence

A person’s fundamental protection if accused of a crime that requires that the prosecution prove its case beyond a reasonable doubt against the defendant. However, the onus of proof on particular issues may be amended or reversed by statute.

Procedural Fairness (see Natural Justice)

A common law duty to act fairly in the making of administrative decisions which affect a person’s rights, interests and legitimate expectations. The legal doctrine of procedural fairness has two principal limbs: decisions by public officials should be made in an unbiased manner (the bias rule) and those affected by such decisions should be given an opportunity to participate in the decisions that affect them (the hearing rule). In Australia the right to "due process" or procedural fairness is not constitutionally guaranteed. However, it can be abrogated only by a clear statement of intent.

Right to Silence

In New South Wales, suspects are entitled to remain silent when questioned by police. At the hearing or trial, the judge or jury is prohibited from drawing adverse inferences, including inferences about the defendant’s guilt, or credibility as a witness, from evidence that he or she did not answer police questions. Defendants can give evidence at their hearing or trial, but can not be compelled to do so. The court can draw unfavourable inferences where the defendant does not testify and, in jury trials, the judge, defence counsel and counsel for any co-accused can comment on the defendant’s silence. There are statutory and common law restrictions on the nature of comment which the judge can make. Prosecution comment is prohibited.

However, the right to silence has been abrogated in many instances: statutory power exists for police and certain other officials to require people to provide their names and addresses; people giving evidence to commissions and investigatory bodies are obliged to answer questions and the privilege against self-incrimination is removed; and pre-trial disclosure requirements impact on an accused’s right to silence, as outlined above.

Sentencing

Purposes (see section 3A Crimes (Sentencing Procedure) Act 1999(NSW)):

• To ensure that the offender is adequately punished for the offence;
• To prevent crime by deterring the offender and other persons from committing similar offences;
• To protect the community from the offender;
• To promote the rehabilitation of the offender;
• To make the offender accountable for his or her actions;
• To denounce the conduct of the offender;
• To recognise the harm done to the victim of the crime and the community.

Standard Non-Parole Period Offence Scheme

Penalties that may be Imposed – (see Part 2 Crimes (Sentencing Procedure) Act 1999(NSW)):

• Imprisonment
• Periodic Detention
• Home Detention
• Community Service Orders
• Good Behaviour Bonds
• Dismissal of Charges and Conditional Discharge of offender
• Deferral of Sentencing for Rehabilitation Purposes etc
• Suspended Sentence
• Fines
• Non-association and Place Restriction Orders.

Standard of Proof

• Civil – Balance of probabilities (Brown v. The King (1913) 17 CLR 570 pp 584, 595,596);
• Briginshaw test – Court to satisfy itself as far as it reasonably can;
• Criminal – Beyond reasonable doubt.

Strict Liability

Liability which is set upon the defendant without need to prove intent, negligence or fault; as long as you can prove that it was the defendant's object that caused the damage.

Sub judice

A matter that is still under consideration by a court. People will often decline to speak on a certain subject because the subject matter is "sub judice".

Victim Impact Statement

A statement read or presented before the sentencing of an offender which informs the court about the harm suffered by the victim arising from the offence. (Part 3 Division 2 Crimes (Sentencing Procedure) Act 1999 (NSW)).

Voir dire

A mini-hearing held during a trial on the admissibility of contested evidence. For example, a defendant may object to a plaintiff's witness. The court would suspend the trial, immediately preside over a hearing on the standing of the proposed witness, and then resume the trial with or without the witness, or with any restrictions placed on the testimony by the judge as a result of the voir dire ruling. In a jury trial, the jury would be excused during the voir dire.

Without Prejudice

A statement set onto a written document which qualifies the signatory as exempted from its content to the extent that they may be interpreted as containing admissions or other interpretations which could later be used against the person signing; or as otherwise affecting any legal rights of the person signing. A lawyer will often send a letter "without prejudice" in case the letter makes admissions which could later prove inconvenient to the client.