Criminal And Civil Proceedings In Australian Courts

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Criminal And Civil Proceedings In Australian Courts

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Criminal And Civil Proceedings In Australian Courts

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Discuss about the Conduct of Criminal and Civil Proceedings in Australian Courts.

In most jurisdictions, the conduct of criminal and civil proceedings is conducted in different manners. Criminal trials for instance are initiated by the state or a government agency and it is aimed at punishing the offender who commits or is alleged to have committed a criminal act whose punishment is prescribed in law so as to act as deterrence for persons with similar motives. Civil processes however are initiated by a private citizen and its main aim is to vindicate rights that are personal in nature mostly through awarding damages to compensate breaches that relate to contracts, torts and other personal obligations (Behan, 2009).
In criminal proceedings, an accused person is arrested and a charge sheet is drawn at the police station. The arrested person may be released on bail terms or kept in custody depending on the seriousness of the alleged criminal act. Bail can be given by either the police or when the accused is arraigned in court depending on the seriousness of the alleged criminal offence. The hearing begins when the accused is brought before court and takes a plea. In circumstances where an accused requires the assistance from a legal practitioner before he or she takes the plea, the proceedings are adjourned to a later date. Where the accused person pleads guilty to the charges, the trial magistrate would proceed to deal with the case. If however a plea of not guilty is pleaded, the case is adjourned and a hearing date is set where witnesses are called to testify (Smith, 2003).
Civil proceedings on the other hand, a person whose personal right has been violated may seek the assistance of a legal practitioner about the case at hand. The solicitor then acts on behalf of the party and writes a demand to the guilty party to perform certain actions to rectify the alleged breach. Where the demand is not acted upon within the period stated therein, a writ of summons is sent to the party to appear in court to answer the claims made by the other party against him. In most circumstances, parties act on their own regarding a dispute. Where parties fail to reach an amicable solution, the courts determines the dispute (Chan and Barnes, 1995).
Criminal proceedings revolve around accusations. It is conducted by the prosecution even in serious allegations before a jury. In Australian system juries are rarely present in civil proceedings. The standard of proof attached required of a criminal case is set higher than that in civil cases. Criminal allegations have to be proved beyond any reasonable doubt, suspects therefore are presumed innocent until that point when the standard of proof is met. In civil cases however, no presumption of breach of contract exist. Civil cases seem to be contests between two or more parties and the la treats them equally. The difference between the two processes is that the main aim of criminal justice is to punish the offender. Civil processes however are aimed at compensating the injured party (Astor and Chinking, 2002).
The processes while are diverse in their intentions, there are certain similarities in the processes. An accused person in a criminal trial has a right just as litigants in civil proceedings to be represented by solicitors in the process. The parties could however act on their own behalf in the two processes. Any party who is not satisfied with a court’s decision has a right to apply to a higher court to appeal the decision of the lower court. Additionally, the decision made by a court in both processes may either be a fine, imprisonment or compensation. A person can be committed to a civil jail just like imprisonment in criminal cases (Riemann, 2012).
The two processes however vary in certain circumstance. For instance, the police are not involved in civil proceedings. The standard of proof required in civil cases is on a balance of probabilities while in criminal scenarios; it is beyond any reasonable doubt. In civil cases, the issue of the party who bears the costs of the proceedings is decided by the court. It is usually borne by the unsuccessful party. In criminal cases however, the issue of costs does not arise. Even if the accused wins the case, the prosecution is never ordered to pay costs since criminal processes are mostly intended in protecting the public (Feld et al, 2015).
Astor, H., & Chinking, M., (2002). Dispute resolution in Australia. Chats wood, NSW: LexisNexis Butterworths.
Behan, N. (2009). How to run your own court case: A practical guide to representing yourself in Australian courts and tribunals. Sydney: Redfern Lega Centre
Chan, J., & Barnes, L. (1995). The price of justice? Lengthy criminal trials in Australia. Leichardt, NSW: Hawkins Press
Feld, F., Hemming, A., & Anthony, T. (2015). Criminal procedure in Australia Chats wood, N.S.W: LexisNexis Butterworths
Riemann, M., (2012). Cost and fee allocation in civil procedure: A comparative study. Dordrecht: Springer
Smith, E. (2003). Courts and trials: A reference handbook. Santa Barbara: Calif: ABC-CLIO

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