Tuesday, 16th of January, 2018

Elements of the Criminal Justice System

The Law

How to Use This Handbook

The Tasmanian Law Handbook is an introduction to the law for people who would like to know more about the law. They could be coming into contact with the legal system, or be facing a neighbourhood dispute, or a disagreement with government; they might just be looking to know more about the law. This handbook is intended to be accessible to anyone who needs to know more about how the law might affect their life.

The handbook has been divided into a number of sections to address the subjects that most commonly arise as issues for people. This includes such topic areas as ‘Housing’, ‘Government’, ‘Community’, and ‘Criminal Law’.

The information contained here is not intended to be a replacement for legal advice, it is a resource to help inform people of the law. The handbook serves as an introduction to the law in Tasmania for everyone. For legal advice, please look to the Legal Assistance chapter in this section, where the contact details for free legal advice services are provided, as well as law firms specialising in different areas of the law.

What is the Law?

In the Australian legal system, laws come from two principal sources:

  • common law made by judges in the courts;
  • legislation made by politicians in parliaments both state and federal, or by local government. Local government legislation is usually called ‘subordinate legislation’ or ‘by-laws’

Legislation, also known as statute or Acts, is the primary source of law, and it comes from the parliament. But judges in court still influence how legislation applies. For example, an Act may apply to ‘the control of all domestic animals’. A person may own a ferret for rabbiting purposes. A judge will be responsible for determining whether the Act applies to ferrets, or this particular ferret.

Law derived from international sources also plays a role in areas such as human rights, trade and environmental protection. There is no requirement that international laws be made into law in Australia. International and domestic law are entirely separate systems. However, international law increasingly represents international moral standards, or practical means of regulating a global economy. In cases such as these, it is often common sense for the Australian government to bring international law into Australian law.

An interesting and important question is, why do Australians accept their laws? There are a number of ways of looking at this question. Some philosophers have said that a ‘social contract’ ties us all to the law; that we agree to the laws in return for the protections of the State. Other philosophers say that it is the government’s monopoly on violence that binds us to the law. The question of what makes laws ‘legitimate’ is something worth thinking about.

The Constitution

Australian parliaments's power to enact legislation comes from their constitutions. Both the States and the Commonwealth have constitutions. A constitution creates the parliament and defines its basic procedures. To achieve political stability a constitution is normally entrenched, which means that it is difficult to change, though this is not the case with some of the State constitutions such as the Tasmanian one. This can simply be changed by an Act.

Where the political system is a federal one, such as Australia's, a key function of a national constitution is to divide the power to make laws between the two levels of government. Before federation in 1901 Australia consisted of six separate self-governing colonies. Federation meant that these six colonies agreed to give up some of their powers to form a central government which would deal with certain specific issues affecting the new nation as a whole. Therefore the Commonwealth parliament can only make laws where it is specifically given power to do so by the Australian Constitution.

The subjects on which the Commonwealth can legislate are listed in section 51 of the Australian Constitution. These include such things as defence, currency, foreign (‘external’) relations, banking, corporate bodies, social security and industrial disputes affecting more than one state. Commonwealth powers to legislate in these areas are concurrent with the powers of the States. This means that State legislation will remain in effect until the Commonwealth exercises its power to legislate in a particular area. Once the Commonwealth does this, any State legislation which is inconsistent with Commonwealth legislation can be declared invalid. This must be done by challenging the legislation in the High Court.

The Common Law

Where the Common law Comes From

The common law has a long history. It originated in England during the reign of King Henry II (1154—89). Before that time, English law, like the law in other parts of the world, consisted of local customs which varied from place to place. To consolidate his grip on his kingdom, Henry II introduced a system of centralised administration of ‘the King's law’ by ordering judges to go ‘on circuit’ to the towns and villages of England to deal with disputes among his subjects. These judges developed a ‘common’ set of rules and procedures which gradually came to be written down by their clerks and the lawyers who worked in these courts. This written body of law became known as ‘common law’.

Common law was supplemented by law administered by the church, that is, ‘ecclesiastical law’. This was the law governing important aspects of human relationships such as birth, death and marriage. This law has now been almost entirely replaced by legislation. The possibility of any church administering law in Western societies is a distant one. Whilst religion may influence policy and broader societal trends, there is a traditional separation between church and state in common law countries, such as Australia, England, and Canada.

Until well into the nineteenth century, in both England and Australia, the common law continued to be the main source of law. Society was able to function reasonably well with little legislation. However, with the industrial revolution and the massive social changes it brought in its wake, there was a need for increased government intervention in the financial relations between people. Changing social attitudes also meant that the state was called upon to regulate practical issues that were once the province of the church or social standards. This included changes such as women’s rights to property, the vote, and divorce. There was also a revolution of the means of communication, which provided the means to do this. From the 1830s onwards, the making of laws by parliament became the key instrument for intervention and legislation quickly became the dominant source of law.

The common law continues to be the main source of law only in the diminishing areas of human activity unregulated by legislation. For instance, until recently the law of torts (civil wrongs) was mostly common law, though with the Civil Liability Act 2002 (Tas) and important legislative inroads such as compulsory motor accident insurance and workers compensation legislation, the common law is less influential.

Until 25 years ago the law of contract, that is, the law which enforces business transactions, was almost wholly common law. But, because judges found it too difficult to develop principles of common law to protect consumers, parliaments had to step in with legislation. Today legislation such as the federal Consumer Law have modified the common law of contract to create such protection. But even where legislation prevails, the common law continues to play an important function in the interpretation of legislation. There are also examples of legislation incorporating common law principles, such as with the Civil Liability Act 2002, which includes the common law tests for breach of duty.

Interpreting the Common Law

A major difficulty with the common law is its uncertainty. This is produced by different courts reaching different interpretations of the law in similar cases or judges reaching the same conclusion for different reasons or different judges reaching different conclusions in the same case. In the latter instances, it will be the opinion of the majority of judges which will decide the outcome of the case. Uncertainty is unavoidable in a rapidly changing society. Although it means unpredictability and surprises, it is the price that has to be paid for maintaining the adaptability and fairness of the law.

Judges try to avoid uncertainty in the law by adhering to the doctrine of precedent. The doctrine of precedent says that judges should follow legal rulings from previously decided cases. Thus, where identical facts occur in two cases, the judge should follow the decision in the earlier case. That case is said to create a ‘precedent’. Of course, it is very rare for cases to have identical facts. This means that if a judge believes that a difference between facts is more important than a similarity, the judge can ‘distinguish’ between the old and new decisions. The precedent will not be followed and a new precedent will be created, but both will be influential. A court should always give reasons for its decision. In this way the courts will try and avoid unpredictability in the law by developing a consistent body of law.

Some of the rules associated with the doctrine of precedent are as follows.

  • A court's decision in each case is binding on the parties to that case.
  • If there is an avenue of appeal or review against a decision, and it is not made within the time limit, the case is settled and cannot be re-opened.
  • If either side appeals to a higher court within the time limit, the higher court can affirm or overrule the lower court's decision.
  • There may be an avenue of appeal to a higher court still and in this case that higher court can affirm or overrule the original court's decision. The decision of the highest court is final.
  • Lower courts must follow decisions of higher courts, but only if they are in the same hierarchy. This means that a decision of a Supreme Court in one State will not be binding on the decisions of a lower court or a Supreme Court in another State. Such decisions will only be ‘persuasive’, that is, they can be used to guide the decision of a court in another State. The same applies to decisions of courts outside Australia. If a case is unusual or difficult, Australian courts may look to overseas decisions in England, New Zealand, Canada and the United States or even the European Union for guidance in deciding a case.
  • The decisions of the High Court of Australia are binding on all Australian courts and tribunals.
  • Courts are not bound to follow their own previous decisions but will usually do so in the interests of achieving consistency. Only if a court comes to the view that a previous decision is clearly wrong will it come to a different decision. The most frequent reason will be that a previous decision is an old one and circumstances have changed.

Courts have also developed a specialised set of rules for interpreting legislation. Sometimes where the Court’s interpretation of legislation causes problems, parliament will intervene by passing legislation to ‘clarify’ the law. Parliament will sometimes also pass legislation to bypass politically unwelcome consequences of judicial decisions.

Legislation

How legislation is made

Legislation usually originates as an idea for solving a social problem, promoting some desired government policy or generating government income. Sometimes law reform bodies will provide the inspiration for such ideas, sometimes a government department, sometimes an independent member of parliament, or sometimes they will come from the policy platform of the party in power. The idea is usually considered by the government in federal or state cabinet before it becomes the subject of public debate, though it can originate from an individual member of parliament as a Private Member’s Bill. Once the government has decided that legislation is necessary to give effect to the idea, instructions will be forwarded to the parliamentary drafting department to prepare a Bill.

A Bill is a proposed Act. Once a Bill is introduced into parliament, it will have to go through three readings in each of the two houses of parliament (except in Queensland which has no upper house). In the case of a federal Bill it will be considered by the House of Representatives and the Senate. In the case of a Tasmanian Bill, it will be considered by the House of Assembly and the Legislative Council. Serious parliamentary debate will take place at the ‘second reading’ stage. Amendments to a Bill are often made at this stage. It is also increasingly common for important or controversial Bills to be considered by ‘committees’ of the Senate or Legislative Council. Amendments to a Bill will often result from this process.

Before a Bill becomes an Act it must be given assent by the Queen's representative. In the case of a state Bill, the Governor gives the assent, and in the case of a commonwealth Bill, it is the Governor-General. This process is a remnant of the fact that federal and state parliaments are still formally subject to the Crown.

The Act must then come into effect, that is, actually become law. Sometimes the Act will say that it comes into effect on assent. At other times the Act, or different parts of the Act, will come into effect when ‘proclaimed’ on a particular day. This is done by a notice in the Commonwealth or State Government ‘Gazettes’. There may sometimes be years of delay in an Act coming into effect because the government becomes unsure about the Act, funding is lacking or the detailed administrative arrangements have to be made for its implementation.

An Act may amend another Act. It will have the word ‘Amendment’ in its title. Some original Acts are amended many times. For instance the Criminal Code Act 1924 (Tas) has seen many changes since 1924.

An Act may empower a public authority, a local council, a minister controlling a government department, or a public servant, to make Regulations, Rules, Ordinances, or By-laws. These laws are collectively known as ‘delegated legislation’ because Parliament has ‘delegated’, or given, its law-making power to another person or body. Parliament delegates its power for a number of reasons. Obviously it is much quicker for a parliament to lay down general principles in an Act and leave the day-to-day details to be worked out by those who will administer the law. These day-to-day details may need to be made, altered or repealed quickly, rather than through the lengthy process of making and passing legislation. Finally, delegated legislation allows for the administrator or enforcer to be a specialist or expert in some particular area.

Acts of parliament are binding on all courts and judges. Judges cannot over-rule an Act, unless an Act is unconstitutional, that is, beyond the power of the Commonwealth or State parliament which passed the Act. It is the constitutional role of the High Court of Australia to declare that an Act, or part of it, is invalid and of no effect where it is in breach of the Australian Constitution. It is very rare for state legislation to be in breach of state constitutions since there is no practical limit on the powers of states to legislate other than the Australian Constitution.

Judges, and in many cases special tribunals, also have wide powers to review decisions made under legislation and delegated legislation by ministers, officials and administrative bodies. These powers of review come from both legislation such as the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) and the common law. This important area of law is known as Administrative Law. Freedom of information is a necessary adjunct of this area of law. As government functions are increasingly privatised, there is a question as to the extent to which the principles of administrative law apply to private bodies carrying out those functions.

Legislation vs Common Law

Legislation is law made by parliaments. Legislation is also known as statute law, statutes, or Acts of Parliament. In Australia, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory and Norfolk Island. Other bodies, such as local governments, are given certain powers by parliaments to make legislation as well.

It is a well-established principle inherited from British constitutional law that parliament is sovereign or all powerful. This principle is controversial because, subject to constitutional limitations, it means that in theory parliament can make any law it wants to, even if it is contrary to what most people would regard as their basic rights. The fact that the law-makers must face election is one important brake on this power. However, many now call for the insertion of a constitutionally entrenched ‘Bill of Rights’ to guarantee that parliaments’ law-making powers respect these basic rights. This is yet to happen.

The practical result of the principle of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and the common law, legislation will over-ride the common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them. "Legislation is written on the common law".

The legislative powers of parliaments are also governed by the Commonwealth and State constitutions. Australia's obligations under various international treaties, conventions and covenants are also beginning to place limits on parliamentary sovereignty, though the present legal position is that these instruments of international law do not generally become part of national law until parliaments enact legislation to do this.

Interpreting legislation

Judges continue to play an important role in interpreting legislation because often the meaning of words and phrases in legislation will be undefined or hard to determine. This may be the result of simple oversight, a deliberate attempt to fudge the meaning to achieve a political compromise or a genuine recognition that all the circumstances in which the legislation may apply cannot be foreseen. The use of the word ‘reasonable’ in legislation is often a convenient route of escape for legislators in such situations.

Because the interpretation of legislation by the courts can have such an important effect on how the legislation is implemented, both Commonwealth and State parliaments enacted legislation to guide this process - these are the Acts Interpretation Acts. Explanatory memoranda state the intended effect of legislation. Second reading speeches, made by the politician who moves the Bill, and debates in parliament are also important. The Acts Interpretation Acts, both Commonwealth and State, provide that the courts must be guided by these statements, and other relevant extrinsic material (s15AB and s8B). The Commonwealth Acts Interpretation Act applies to Commonwealth legislation, and the State Act to State legislation.

Judges have developed special rules of statutory interpretation that are also used in understanding the meaning of a statute. The literal rule provides that words in legislation should be given their “plain, literal, natural, ordinary or grammatical meaning” unless they clearly have an established legal meaning as defined in previous case law. The ‘golden rule’ is an extension of the literal rule. It provides that words in a statute are to be given their ordinary meaning unless that interpretation should lead to some absurd result. In that case, the ordinary meaning should be modified in some way that the court thinks appropriate in the context of the legislation. The mischief rule provides that the court should look at the state of the law before an Act was passed to see what remedy the new legislation hoped to provide to cure the ‘mischief', that is, problem which existed under the law as it was.

The fourth approach is the purpose rule. This is provided in the Acts Interpretation Acts at the Commonwealth and State levels (s15AA and s8A).

Finding the Law

Primary and secondary sources

A primary source can be:

  • legislation
  • case law

A secondary source can be, amongst other things:

  • textbooks
  • commentaries
  • academic articles

Often finding the law is not easy, even for a lawyer. The first question is always: is there any relevant legislation? But even before that question can be answered it is important to know whether to look for Commonwealth or State legislation. If legislation is unclear, only supplementary to the common law, or non-existent then the place to look is case law, which is found in the many reports of cases decided by the courts known as Law Reports.

Websites on the internet enabling free access to up-to-date legislation and case law have revolutionised the task of locating the primary sources of the law. The most useful general purpose Australian sites for legal research are:

However, to find a way through the maze of these primary sources, it is usually still a good idea to start research with a secondary source of law, that is a text book, which gives a guide to the primary sources of law on a particular topic.

A site for Tasmanian law is:

Recent years have seen a flood of books about law for non-lawyers. These books are usually much easier to understand than legislation and law reports and may be all that is needed to find the answer. Usually they are about particular topics, for example ‘family law’ or ‘motor vehicle accidents’. This Law Handbook website attempts to provide an introductory guide to most areas of law affecting the ordinary person in their day-to-day affairs.

A person referring to secondary sources should be aware of three pitfalls:

  • the textbook may be out of date — changes to the law can be rapid in many areas;
  • some textbooks are unreliable — they may not be accurate in their explanation of the legislation and cases law;
  • views as to the law may vary — it is worthwhile to compare what different textbooks say.

One way of trying to avoid some of the pitfalls is to use loose leaf texts published by CCH, Butterworths and the Law Book Company. Though not as user friendly, they are generally more up-to-date, reliable and mainstream in their views. But make sure that they have been kept up-to-date. The loose leaf texts kept at law libraries generally will be current.

Another way is to follow up with a search on one of the legal websites for the occurrence of a key word or phrase in the area of law being researched. Make sure that research covers both the legislation and case law. Research is often difficult and time consuming. The best resources are often websites that require a paid subscription, such as LexisNexis or Westlaw. However, Austlii provides a free service with legislation, decisions of courts, and some articles. Familiarity with boolean search terms is also an asset. Information can be accessed through a simple internet search for boolean search terms.

Finding case law and legislation

Case Law

Commonwealth and State case law can still be found in authorised and other law reports. The authorised reports of High Court and Federal Court decisions are the Commonwealth Law Reports (CLR) and Federal Court Reports (FCR). The Federal Law Reports (FLR) cover most important federal cases. A more convenient and up-to-date set of reports of federal court decisions is the Australian Law Reports (ALR).

The authorised reports for important Supreme Court decisions are the Tasmanian Reports (Tas R), but more comprehensive, convenient and up-to-date reports are in ‘Unreported Decisions of the Supreme Court’ series, which are available online. Each state has its own authorised reports: New South Wales Law Reports (NSWLR); Victorian Reports (VR); Queensland Reports (QdR); South Australian State Reports (SASR); and Western Australian Reports (WAR).

When referring to a particular case that is reported in one of the law reports, there is a traditionally accepted shorthand reference. For example: Commonwealth v Tasmania (1983) 158 CLR 1. This is the shorthand reference given to the High Court's judgment in the Tasmanian Dams Case. The reference tells us that the case was decided in 1983, is to be found in Volume 158 of the Commonwealth Law Reports at page 1. Similarly, BMG Resources Ltd v Municipality of Beaconsfield (1988) Tas R 142 is a shorthand reference which tells us that the case was decided in 1988 and is to be found in the Tasmania Reports of that year at page 142.

As with legislation, the more convenient way to research case law now is through the internet. The High Court, Federal Court, Family Court and State Supreme Courts all publish their decisions on the internet as do many tribunals. Austlii provides .rtf and .html files of many Australian court decisions. The menu bar on the left hand provides access to Commonwealth and state case law and legislation. Significant amounts of case law have been transferred to internet databases, although some case law is limited. However, the High Court decisions on the internet now go back as far as 1903. It is now also possible to cite cases from the internet. Thus a Tasmanian Supreme Court case is now cited as follows: Henderson v P & O Resorts Pty Ltd [1999] TASSC 58 - which tells us that the case was number 58 of the cases in which there was a written decision of the Supreme Court in 1999. Page references have been replaced by paragraph references to enable reference to cases on the internet.

Legislation

Legislation, both State and Commonwealth, can be purchased from the State and Commonwealth Government printers. This is still the official version of the legislation. However, major disadvantages of researching legislation in this way are the cost and the need to make sure that all the up-to-date amendments are included.

Access to current legislation on the intemet avoids both these problems. Anyone can make a search of the legislation to see what provisions are relevant and then download and print them out. Such legislation is almost always up to date to the day. Commonwealth and State legislation can be found on www.comlaw.gov.au and for only Tasmania on www.thelaw.tas.gov.au  It is best to search the latter site through the ‘Browse A-Z’ if you are looking for a particular Act, as the search functions are comprehensive in their search results rather than title specific.

In addition, government Departments may have specialised web sites dealing with the laws that govern their operations.

Law Libraries in Tasmania

The law library at the University of Tasmania is accessible to the public for reading in the library, but not for borrowing, unless a person purchases membership to the library.

There are publically accesible law libraries attached to the Supreme Court in Hobart, Launceston and Burnie. These are the:

  • The Andrew Inglis Clark Law Library located on the ground floor of the Supreme Court in Salamanca Place;
  • The Launceston Law Library located on the Ground Floor, of Staffordshire House, 56 Charles Street;
  • The North West Law Library (Burnie) located on the 1st Floor, Supreme Court Building, Alexander Street.

The Supreme Court supplies an excellent legal research paper for people engaging in legal research using databases such as CaseBase and FirstPoint – both subscription legal databases, accesible from the supreme court law library. 

For more information on the law libraries attached to the Supreme Court, see the Supreme Court libraries website.

Legislation, law reports, and textbooks, can currently be found in the Law Society libraries in Hobart, Launceston and Burnie and in the University of Tasmania Law Library in Sandy Bay. The University library also has a wide variety of overseas law reports and law journals as well as internet access to a wide range of law databases. However, you must have a username and password to access the university internet access to law databases.

State libraries have legislation in the form of annual ‘statute books’ and some law textbooks as well as intemet access. Rural and suburban centres may not have a large selection of legal books but can arrange inter-library loans.

Law Reform

A just and efficient system of law is so important that it cannot always be left to parliaments and judges to carry out this task. The courts must wait for the issues to come before them and often prefer to leave controversial issues to the politicians. Politicians are often reluctant to deal with controversial or difficult issues. It is for this reason that both the Commonwealth and States have bodies whose task is to keep the process of law-making under continual review, and recommend changes to the law where it is found not to be operating justly or efficiently. This task is generally carried out by bodies known as ‘Law Reform Commissions’.

The Australian Law Reform Commission is very active and has prepared many reports for law reform including alcohol, drugs and driving, human tissue transplants, defamation, child welfare, privacy, domestic violence, sentencing, product liability, the adoption of Aboriginal customary law, a uniform Criminal Code and a uniform Evidence Act. Uniform Evidence Act came into effect in several states, including Tasmania, which gives uniform law across Commonwealth and state jurisdictions.

Tasmania has the Tasmanian Law Reform Institute (TLRI), directed by Professor Kate Warner. Examples of proposals for State law reform are changes to the law in relation to intoxication and criminal responsibility, a Charter of Rights for Tasmania, sentencing, criminal liability of organizations, the establishment of a drug court pilot in Tasmania, criminal liability of drives who fall asleep causing motor accidents, and the law of easements in Tasmania. The TLRI continues to produce important work on criminal and civil law issues. Papers and media releases are accessible through the TLRI website.

Neither Law Reform Commissions or the TLRI can reform the law on their own. They will recommend reforms to the Attorney-General. Law reform can often be a slow process because of the different social and economic interests affected by proposed changes. Generally there must be solid community support for such proposed changes before the legislators in parliaments are prepared to implement them.

The Court System

The Jury System

The right of ‘trial by jury’ is an important safeguard against the power of the state over people’s lives. The primary role of trial by jury is to enable ordinary people to decide on the guilt or innocence of those charged with crimes against the laws of the land, instead of judges or magistrates appointed by the government. Juries also play a limited role in the enforcement of civil laws as well. But the right to trial by jury has been limited in the interests of the efficient operation of the justice system. All minor offences and the majority of crimes which go to trial are dealt with ‘summarily’ at hearings without juries in the Magistrates Court. Very few civil trials have a jury because of the expense.

The role of the jury varies between civil and criminal cases. In a criminal trial, the role of the jury is to decide ‘questions of fact’ while the judge decides ‘questions of law’. Whether a particular blow killed a person is a question of fact. Whether the killing of that person by means of that blow is murder or manslaughter is a question of law. The jury will decide such questions by considering the evidence presented in the court. The jury will listen to witnesses and view the ‘exhibits’, that is, physical evidence such as weapons, finger-prints, documents or blood-stained clothing. After being ‘addressed’ by the lawyers on both sides of the case and listening to the ‘directions’ from the judge about the law, the jury will then retire to ‘consider the evidence’ and reach a ‘verdict’. In civil cases juries will sometimes decide on the amount of compensation. In defamation trials they may also make findings of fact.

Many aspects of jury duty are regulated by the Juries Act 2003 (Tas). Under the Act all people listed on the Electoral Roll between 18 and 70 years of age are liable for service as jurors. Persons who have been sentenced to imprisonment for a period of three months or more (including suspended sentences) in the previous five years, or are on bail, probation or performing community service, are not qualified to serve as jurors. The sheriff of the court can disqualify a person from acting as juror in the case of mental or physical disability or where the juror cannot understand English. A wide range of those who work in the justice system and their spouses, such as judges, magistrates, court officials, police and prison officers and lawyers as well as those working in essential services such as senior public servants, members of parliament, doctors, dentists, opticians, physiotherapists, chemists, vets, nurses, academics, teachers, pilots and air crews, and masters, skippers and crews of merchant ships and fishing vessels are exempted from jury service. The sheriff can also excuse those who have a ‘reasonable excuse’ including a ‘family responsibility’ which involves caring for other persons, or those who have served on a jury in the past three years.

Potential jury members will be summoned to attend the court. Failure to attend is an offence. The process of actually becoming a member of a jury is called ‘impanelling’. Both sides have the power to challenge potential jury members, though in the case of the defence in criminal trials a reason must be given after six challenges. Jury panels in criminal trials consist of 12 people and in civil trials seven people. In both cases a ‘foreman’ is appointed who speaks for the panel. A ‘majority verdict’ of 10 out of 12 jurors can decide a criminal case after two hours of deliberation, except for very serious offences. In civil cases ‘majority verdict’ of five out of seven jurors can decide the case after four hours of deliberation. Where majority verdicts cannot be achieved, in the case of both civil and criminal trials the jury is ‘discharged’ and there may have to be a further trial. Jurors are paid for lost wages and travelling expenses.
 

The Courts

Just as Australians live with two sets of law, federal and state, these laws are enforced by two separate court systems. Attempts to integrate the two systems have had only limited success. Both federal and state systems have ‘tribunals’, ‘boards’ and ‘commissions’ which deal with specialised areas of law. Another way of saying this is that tribunals, boards, commissions and courts have different jurisdictions. Jurisdiction basically means ‘area of power’. For example, the Family Court of Australia deals with family law. The Family Court’s area of power is family law.

Most courts and tribunals are open to the public, although access is sometimes restricted - the most important example being the State children's courts (now the ‘Youth Justice Division’ of the Magistrates Court) where only the child, the child's parents and lawyer are allowed into the court.

There is an increasing use of video hook-ups in the courts to avoid the costs and inconvenience of ‘live’ appearances and to protect some witnesses e.g. children, or rape victims.
 

The Commonwealth Courts

Federal Circuit Court

The Federal Circuit Court was set up in 1999 by the Commonwealth government to deal with several different areas of the law, including family law issues, such as child contact and child support matters, and divorce.

The Court also has jurisdiction over administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. The purpose of this structure was to take the pressure off the Federal Court, and especially the Family Court, and to provide a more accessible court structure. It has largely succeeded.

The Family Court and the Federal Circuit Court

The Family Court deals with family law issues. It is helped in its work by the Federal Circuit Court. The Federal Circuit Court deals with many of the more straightforward legal problems, such as divorce or separation. The Family Court deals with many of the more complicated or serious matters, such as allegations of child abuse, as well as child abduction cases. For more information see the Family section of this website.

The Federal Circuit Court can grants divorces. Where parents have separated, whether married of unmarried, it deals with disputes about the residence and care of children, and about the contact of children with the other parent and others in their lives such as grandparents. It also resolves property disputes between couples who have been married, and de facto couples.

The payment of maintenance by parents for their children, now generally known as ‘child support’, is usually dealt with by the Child Support Agency, though some cases are still dealt with in the Federal Circuit Court or the Family Court.

The Family Court and the Federal Circuit Court are very busy courts. There is a strong emphasis on the use of counselling facilities and on conciliation conferences to resolve disputes by consent. Mediation with family law issues is compulsory.

The Family Court's registry is in Hobart but it also sits in Devonport and Launceston. Counselling and conferences take place in these and other major centres. Urgent matters are generally dealt with in Hobart. There is increasing use of phone and video conferencing to reduce time-consuming travel for court officers and parties.

Reviews of Federal Circuit Court decisions are dealt with by a Family Court judge. An appeal from a judge's decision goes to a bench of three Family Court judges and from there an appeal goes to the High Court.

The High Court

The High Court is at the apex of both the Commonwealth and state court systems. Its administrative and ceremonial head is the Chief Justice and it has six other judges. Unlike other courts, all seven judges generally sit on High Court cases because of the importance of its decisions. The High Court's decisions must be followed by all other Australian courts and tribunals.

The court's key role is deciding constitutional cases. However, the bulk of its workload consists of appeals from decisions of state and territory Supreme Courts, the Federal and Family Courts. The right of appeal to the High Court in non-constitutional cases is not automatic. ‘Leave to appeal’ must usually be granted and this will only be done where a matter is of sufficient public importance and there is a reasonable chance of success.

Commonwealth Tribunals, Commissions and Boards

The Commonwealth has tribunals, commissions and boards too numerous to mention which are part of the vast web of laws and policies it administers. The most important ones are the Administrative Appeals Tribunal (AAT), Social Security Appeals Tribunal, and Veterans Review Board. The AAT reviews numerous decisions made by Commonwealth public servants, officials and ministers, and also decisions of many tribunals, boards and commissions. It can only review decisions where legislation says that it can. Many other administrative decisions can be reviewed by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Commonwealth crimes or offences, created under the Crimes Act 1914 (Cth) are heard and determined in the State Court system (Magistrates or Supreme Court). There is no separate Commonwealth court system to try commonwealth charges. The only difference with a hearing of a commonwealth charge in a state court is that the Commonwealth sentencing penalties will apply rather than the state Sentencing penalties. Examples of Commonwealth crimes are fraud against the cmomonwealth, the importation fo drugs, and offences on planes.

The Federal Court

The Commonwealth court system is much more complex than the State ones. Much more of its work is done by specialised tribunals, boards and commissions, though it does have a high volume of people using the Family Court system.

The Federal Court was established in 1976 in order to relieve the High Court of Australia of its ordinary workload. It has an Industrial Division and a General Division and sits in all State and Territory capital cities in Australia. The Federal Court in Tasmania is on Davey St. It shares premises with the Family Court.

The Industrial Division deals with the enforcement and interpretation of federal awards and agreements and workplace relations matters. The resolution of disputes, making of awards and the mediated settlement of court cases is dealt with by the Industrial Relations Commission.

The General Division of the Federal Court deals with cases relating to bankruptcy, trade practices, federal administrative law, federal taxation disputes, customs, copyright, patents, trademarks, and numerous other federal matters. Cases are dealt with by a single judge, with a right of appeal to the ‘full’ Federal Court (which has three judges), and from there to the High Court of Australia.

The rules under which the Federal Court operate allow judges to take a strong hand in case management to ensure that cases, or as many issues as possible in cases, are quickly resolved before they go to trial. There is increasing use of video connections to get ready for trials and take evidence.

The State Courts of Tasmania

The Supreme Court of Tasmania

Tasmania has a two tier court system made up of the Magistrates Court and the Supreme Court. The Supreme Court acts as an appeals court. Other states have a three tier system due to larger population sizes and greater case loads for courts.

The administrative and ceremonial head of the Supreme Court is the Chief Justice. There are five other judges. Judges are appointed by the Governor on the advice of the Executive Council. This Council is comprised of State Ministers, the Premier, and representatives from the legal profession. Judges are addressed in court as ‘Your Honour’, ‘Madam’ or ‘Sir’.

The Supreme Court deals with civil cases above a money limit of $50,000 and criminal cases which are heard by a jury. The Supreme Court also hears appeals from civil and criminal decisions of the Magistrates Court. The Full Court of the Supreme Court (which consists of three Supreme Court judges) hears appeals from decisions of a single judge in the ordinary Supreme Court. Similarly, the Court of Criminal Appeal (also with three judges) hears appeals from decisions of a single trial judge in criminal cases. Decisions of the Full Court and the Criminal Court of Appeal can be appealed to the High Court of Australia, which usually sits in Canberra. It only hears appeals which concern the Constitution or an important point of law.

The Supreme Court has its ‘Principal Registry’ at Salamanca Place in Hobart and ‘District Registries’ in Launceston and Burnie. Judges sit in these centres for trials but appeals involving three judges only take place in Hobart.

Settlement of civil cases by mediation is gaining ground in the Supreme Court, but mediation is not compulsory. The Associate Judge, previous known as ‘the Master’ helps to manage the civil jurisdiction of the Supreme Court.

In the past, civil cases in the Supreme Court may have taken years to come to trial, or settle. It is not unusual for personal injury cases to take seven to eight years to resolve. The Court has an active case management focus, which means it intervenes to move cases on – diverting dispute into alternative methods of dispute resolution in order to confine the issues that will appear before the court for resolution. Conciliation is compulsory in the SC, it is free, and noncompliance will see the case not being listed for hearing.These case management procedures are also used in the Magistrates Court. There are indications that new case management procedures are making the court process quicker, and more accessible.

The Magistrates Court

The Magistrates Court is the ‘workhorse’ of the legal system. The majority of people who have contact with the courts will do so through the Magistrates Court. The Magistrates Court deals with civil cases up to a money limit of $50,000, with unlimited jurisdiction by consent of the parties, and criminal cases which are not heard by a jury. The money limit changes from time to time by proclamation, to reflect the value of the dollar. Plaintiffs often reduce a claim in order to keep the matter in the Magistrates Court, or to keep the matter in the small claims tribunal division of the Magistrates Court.

The Magistrates Court also hears preliminary proceedings, formerly known as ‘committal proceedings’ which test the evidence on serious criminal offences before they go to the Supreme Court. The Youth Division of the Magistrates Court is part of the Magistrates Court though it operates under its own legislation. Magistrates also act as Coroners.

The Magistrates Court takes its name from the magistrates who are its ‘judges’. Magistrates are appointed by public advertisement. The administrative head of the Magistrates Court is the Chief Magistrate. The Chief Magistrate is assisted by the Deputy Chief Magistrate. Each of the three regions of the State has its resident magistrates who also sit in smaller centres. Magistrates are addressed in court as ‘Your Honour’, or ‘Sir’ or ‘Madam’.

An important part of the Magistrates Court is the ‘Small Claims Division’. This part of the Court deals with civil cases with a money limit of up to $5,000. Its purpose is to deal with cases as cheaply and efficiently as possible by cutting down on formal legal procedures and encouraging negotiated settlements. Lawyers can only represent people in the Small Claims Division in very rare instances.

Under new rules, civil cases proceed quickly through the Magistrates Court. All cases go through compulsory mediation with emphasis put on the parties to settle the case or to settle as many issues in the case as possible by means of aggressive case management procedures and cost penalties.

State Tribunals, Commissions and Boards

The State court system has a number of important specialist courts called ‘tribunals’ or ‘commissions’. The three most important are the Workers Compensation Tribunal, the Resource Management and Planning Appeals Tribunal and the Industrial Commission.

Matters that would otherwise be heard by an Administrative Appeals Tribunal (AAT) in other states, are heard in Tasmania in the Magistrates Court. Under the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas), the court hears appeals against administrative decision. For example, the Magistrates Court will hear appeals from people who were refused a gun license or a driving license, on their initial application. If a person is refused a license by an administrator, the Magistrates Court (Administrative Appeal Division) Act provides for appeal through a magistrate. The same applies with tax assessment, closure of public roads, declaration of dangerous dogs – numerous Acts containing powers for administrative decisions will include a right of appeal to a magistrate. Gun licenses, motor vehicle licenses, security licenses, state taxation matters – these are a few examples. If the Act in which the administrative powers are contained do not include an avenue of appeal, the Magistrates Court (Administrative Appeal Division) Act allows for this review.

Administrative appeals are held de novo. This means that the appeal is heard ‘as of new’ – that means that the appeal is a fresh attempt to be granted an administrative right. The magistrate will consider the matter anew, as if standing in the shoes of the original decision maker.

Aspects of Crime and Punishment

What is Crime?

Crime is illegal activity that is prohibited by the law. A crime is often called an ‘offence’. Some people wear shirts that say ‘it’s only illegal if you get caught’. This is untrue. Any activity prohibited by statute or the common law is illegal whether you are caught or not. This is like saying ‘it’s only illegal to hurt children if you get caught’. Most people would agree that hurting children is illegal whether or not the people who commit such crimes are caught.

The law, and the crimes it creates are most often a reflection of morality. Morality is made up of the principles we use to govern our relationships with one another. This is why actions such as stealing, assault, rape, and murder are crimes – each of these acts harms our ability to trust other people, and to feel safe in society.

Other questions around crime are less easy to answer. Why is smoking cannabis a crime and smoking cigarettes not a crime? Why is alcohol legal but not other drugs? These are very difficult questions to answer, and there are many different answers. Often it is a question of cost and benefit. Tobacco products are heavily taxed. The tax from the sale of cigarettes goes to the public health system. Tobacco users will have greater cause to rely on that system later in life. It is more of a benefit to tax cigarettes and use money gained from that for the benefit of all, than to attempt to prevent people smoking them, which would involve more cost, and less benefit in the way of crime prevention. It would also create another large illegal industry, alongside that of drug manufacture and supply.

On the whole, crime is something that has to do with the greater good of society. The law criminalises activities that will hurt our relationships with one another, and in society as a whole. There are different levels of crime though – not all crimes are of the same magnitude. A parking offence is very different to murder. The law reflects the difference between these in the way the legal system deals with each crime, and the penalty imposed. A parking offence will incur a small fine, murder will incur a term of imprisonment.

Major Offences

Major offences, called ‘crimes’ are tried on indictment in the Supreme Court before a judge and jury of twelve citizens. The judge instructs the jury as to the applicable law and the jury decides all issues of fact and then applies those facts to the law in order to reach a verdict. Tasmania, along with Queensland, Western Australia and the Northern Territory, has an Act codifying the criminal law. This means that we have an Act that sets out all the crimes in our jurisdiction; there is one central source, with a few other Acts that define crimes. The relevant Act in Tasmania is the Criminal Code Act 1924 (Tas) (the Criminal Code). The other three States, and the Australian Capital Territory, rely on the common law, updated in parts by state legislation, to determine what is a crime.

Most Tasmanian crimes are set out in the Criminal Code, but there are a few contained elsewhere, such as dangerous driving, and more serious drug offences, for example, trafficking that are tried on indictment. Alleged breaches of more serious Commonwealth laws are tried in the same way.

Lesser Offences

Lesser offences, not strictly ‘crimes’, are contained in numerous pieces of legislation - Police Offences Act 1935 (Tas), Traffic Act 1925 (Tas), Road Safety (Alcohol and Drugs) Act 1970 (Tas), to name a few. Offences are also set out in regulations made under many Acts such as the numerous regulations under the Traffic Act.

Alleged breaches of such Acts, and the regulations made under them, are decided summarily by a magistrate.

Proceedings are commenced by complaint (Justices Act 1959 (Tas), s27). A complaint is a document usually issued by the police to a justice of a court, containing an allegation that a person has committed an offence of a minor nature. A justice is usually a magistrate in the case of lesser offences. The person against who the complaint is made will also be given a copy of the complaint. A person can be brought before the court in several ways. If they are in custody, they may be bailed by the police or a magistrate to appear in court at a later date. They can also be brought before the court by way of a summons. A summons is a document issued by the court to a person, usually by mail, detailing the date, time, place and reason a person must be in court, If a person fails to answer a summons by appearing in court, a justice can issue a warrant for their apprehension.

Crimes vs Civil Wrongs

In broad terms, crime involves community condemnation and punishment through the State (either State or Commonwealth), while a civil wrong is a wrong against an individual that calls for compensation or repayment to the person wronged. If a person takes money from someone’s bag without their permission, intending to keep it, they are committing a criminal offence (stealing) for which they may be punished if found guilty. They may also be ordered to pay the person they stole from compensation, but this is only in addition to the punishment process. On the other hand, a person who fails to pay back money which was loaned to them does not necessarily commit a crime, and although a person can take a civil case to get the money back, the person will not necessarily be criminally punished.

Crimes are prosecuted by the State or Commonwealth, although private criminal prosecutions are possible, albeit very rare. For civil matters, it is up to the individual affected to take proceedings against the person who allegedly committed the civil wrong. A victim of a crime, whether it is one of violence or against property, has a right irrespective of the outcome of a criminal prosecution to sue the culprit for damage or loss. Of course, many such offenders have no assets and therefore obtaining a civil judgement against such a person is often fruitless. The Tasmanian government provides some assistance with Victims Support Services and the availability of Criminal Injuries Compensation.

Victims of some crimes are entitled to criminal injuries compensation where criminal conduct is proved and it is apparent that the offender has no means to satisfy a civil judgment against the victim. The maximum compensation available is $30,000 where there is a single offence and $50,000 where there is more than one offence (s4, Victims of Crime Assistance Regulations 2010 (Tas)). Such compensation is not available for the loss of property. However, both the Magistrates and Supreme Courts can make restitution orders under the Sentencing Act (s65) for loss of property, and other offences. Stealing and theft restitution is only available for offences under the Criminal Code.

Many minor criminal offences may also have serious civil consequences, for example, driving without due care and attention which may lead to destruction of someone's motor vehicle or personal injury. Civil cases only have to be proved on the balance of probabilities, whereas criminal cases or offences must be proved beyond reasonable doubt.

Which Court?

The vast majority of criminal matters in Tasmania are dealt with in the Magistrates Court. Matters dealt with in the Magistrates Court range from speeding offences to crimes of dishonesty such as aggravated burglary and stealing where the property involved is less than $5000. Some matters cannot be heard in the Magistrate Court, whilst some matters afford the defendant the right to elect either the Magistrate Court or the Supreme Court. For example: if a person is charged with a crime of dishonesty such as stealing, dishonestly acquiring a financial advantage, forgery or receiving stolen property then under sections 71 and 72 of the Justices Act 1959:

  • if the value is $5,000 or over, there is a trial or plea of guilty in the Supreme Court;
  • if the value does not exceed $5,000, the accused has an option as to which Court in which they wish to be tried; and
  • if the value is below $500

it is normally decided before a Magistrate, but upon application the Magistrate can send it for trial upon indictment to the Supreme Court.

A person charged with dangerous driving under the Traffic Act 1925 has an option as to which Court, as does a person charged with escape. A ‘minor’ assault (common assault under the Police Offences Act 1935) must be dealt with in the Court of Petty Sessions, and a ‘major’ assault (Criminal Code assault) in the Supreme Court. A person can be charged with selling a prohibited substance under one section of the Poisons Act 1971 (Tas) upon indictment in the Supreme Court and or summarily under another section in Petty Sessions.

Coroner's Court/Inquest

Where an unnatural death or a fire has occurred, and no one has been charged by the police with an offence, an inquest into the event will be held in a Coroner's Court. The Coroner decides the manner and cause of death or the fire, and whether there is enough evidence to put any person on trial before a judge and jury. In some cases an inquest may be held to establish the date and place of the death or the fire, and the identity of the deceased, even though a person has been charged with an indictable offence arising out of the incident.

Fundamental Legal Rights

Basic rights either derived from the common law or contained in legislation are as set out below.

Rights of a Defendant in a Trial by Judge and Jury

A person to be tried on indictment in the Supreme Court has the right to disclosure. Disclosure involves the prosecution giving copies of written statements of all evidence to be led against the defendant at the trial (Crown papers). A person tried in the Court of Petty Sessions may apply for and receive relevant police documents including witness statements, under Right to Information legislation. The prosecution has a duty not to proceed if they believe there is no substantial prospect of conviction.

A defendant also has a right to a preliminary hearing of all the evidence in front of a magistrate or justice of the peace (s61Justices Act 1959). This is known as a committal or preliminary hearing. At a preliminary hearing a person may elect to cross-examine witnesses At this hearing an accused, or their counsel, can cross-examine witnesses. An accused can give evidence if they wish. Any decision regarding the preliminary proceedings is in the hands of the Supreme Court.

Innocent Until Proven Guilty

The basis of our system of criminal justice is that a person is to be considered innocent, if charged with a crime or offence, until proven guilty. The civil law system in Europe makes the opposite presumption. A person is guilty until proven innocent in their criminal justice courts.

Proof ‘Beyond Reasonable Doubt’

The prosecution must satisfy the magistrate or jury, as the case may be, that the accused person is guilty beyond reasonable doubt. If there is any reasonable doubt whether the accused is guilty, they should be ‘acquitted’, that is, found to be not guilty of the offence.

It is not up to the accused to establish their innocence, although sometimes the accused has to show that there is sufficient evidence to raise an issue as a defence. For example, a judge will not instruct a jury as to self-defence without some factual basis for it.

In some cases, the burden of proving a particular defence, such as insanity, may be on the accused person, but only on the balance of probabilities.

The Right to Remain Silent

A basic right, strongly enforced by the courts, is that a person is not required to answer any questions put by a police officer, except in certain limited situations. This right extends to a person’s jury trial or summary trial. A person cannot be compelled to give evidence at their trial.

Disclosure

The prosecutor's duty includes calling relevant witnesses who may assist the defence case (unless the prosecutor believes them not to be truthful), and advising the defence of anything known that may conceivably assist the accused.

Double Jeopardy

A person once acquitted cannot be re-tried. Likewise a person cannot be punished twice. This is known as autre fois acquittal or autre fois convict. There can, however, be a re-trial if a jury cannot reach a decision or if a court on appeal quashes a conviction or acquittal.

Bail

Every person arrested can apply to a magistrate for bail, save for a charge of murder. If a person is refused bail by a magistrate, that person may make an application for bail in the Supreme Court before a judge. The Bail Act 1994 (Tas) is the primary Act governing questions of bail.

In family violence matters, bail will not be granted unless the court, judge or police officer deciding the grant of bail is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or child (s12, Family Violence Act 2004 (Tas)).

A Right to Contest the Admissibility of Evidence

The criminal law provides for means by which a defendant can contest the admissibility of evidence against them to a court on the grounds that the evidence was improperly or illegal obtained. In Tasmania, the Criminal Law (Detention and Interrogation) Act 1995 (Tas) regulates police conduct and the interview, interrogation and charging process, and the Evidence Act provides that a court has a discretion to exclude evidence where that evidence was improperly or illegally obtained.

Evidence unfairly or illegally obtained may be admitted as evidence at the trial by a judge or magistrate in the exercise of their discretion, but evidence proved to be obtained under duress must always be disallowed. The type of improper or illegal conduct will heavily influence the discretion of the court in its decision. For example, obtaining a confession by beating a defendant, or the use of an illegal listening device, would heavily influence the court to exclude evidence. The court will look at the nature of the conduct and also the value of the evidence. The process is  done by a ‘trial within a trial’ known as voir dire,

Hearing a charge against you: magistrates

 

The minimum requirement before one can become a magistrate is to be a qualified legal practitioner of at least five years standing. Most magistrates, in reality, are vastly more experienced than the five year minimum. Magistrates can also hear some matters contained in the Criminal Code, for example, allegedly stealing property of a value of less than $5000. These are sometimes referred to as ‘indictable matters tried summarily’. This means matters that could go before the Supreme Court, but which can be heard and decided by a magistrate.

A magistrate sits alone and determines whether the charge brought before them is proved or not proved. That is to say, a magistrate (if the defendant pleads not guilty) conducts a summary hearing where the prosecution calls evidence and witnesses are subject to cross-examination. A summary trial is a short trial.

As in a jury trial in the Supreme Court, the defendant is not compelled to give evidence but may choose to do so – this is the ‘right to silence. A jury trial will nearly always take longer than a summary trial.

The rules of evidence that govern the Supreme Court and the Magistrates Court are the same, save for a small number of rules that differ as a result of procedural differences.

The Magistrates must direct themselves as to the law just as a judge would instruct a jury as to the law.

In the Magistrates Court the magistrate is the sole arbiter of fact and law whilst in the Supreme Court the judge is the sole arbiter of the law, whilst the jury decides the facts. The jury then apply their findings of fact to the law as the law has been explained to them by the judge.

Guilty/Not Guilty

The question of ‘guilty or not guilty?’ is decided on the basis of a case being proved beyond reasonable doubt. If a magistrate (in the Magistrates Court) or jury (in the Supreme Court) is not satisfied that the prosecution has proved its case beyond reasonable doubt, the proper verdict is not guilty. Conversely, if the magistrate or jury is satisfied that the prosecution has proved its case beyond reasonable doubt a verdict of guilty will be returned.

Upon a finding of not guilty, that is the end of the matter, unless a costs application is made by a successful defendant. Upon a finding of guilty or upon the defendant's plea of guilty, proceedings continue to the sentencing stage. At that point, the defendant, usually through a legal practitioner, makes submissions to the judge or magistrate in relation to the sentence that may be imposed. This is known as a plea in mitigation and the jury takes no part in this process.

Conviction

When a person is found guilty of a crime or an offence, both the Supreme Court and Magistrates Court, have the following powers. The court may:

  • Record a conviction and order that the defendant serve a term of imprisonment; or
  • Record a conviction and order that the defendant serve a term of imprisonment that is wholly or partly suspended; or
  • Record a conviction and make a community service order in respect of the offender; or
  • With or without recording a conviction, make a probation order in respect of the offender; or
  • Record a conviction and order the offender to pay a fine; or
  • With or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or
  • Record a conviction and order the discharge of the offender; or
  • Without recording a conviction, order the dismissal of the charge for the offence; or
  • Impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by the Sentencing Act or any other enactment.

It is permissible that a magistrate or judge not proceed to convict a person notwithstanding that that person's guilt has been established either upon their trial or upon their own plea of guilty.

In the case of a conviction for murder, the fixed penalty until recently was a sentence of imprisonment for life. Sentences imposed for murder are now fixed terms. Prisoners previously sentenced to life imprisonment may apply to the Supreme Court for re-sentencing in order to obtain a fixed term sentence. A person can also be classified as a ‘dangerous criminal’ (s19, Sentencing Act 1997 (Tas)) and kept in custody indefinitely until the ‘dangerous criminal’ classification is revoked by a judge in the Supreme Court. Alternatively, an order can made that the life prisoner be dealt with by the mental health system. This is done through a restriction order, which requires a person to be admitted and detained in a secure mental health unit until they are no longer classified as a dangerous criminal (s77, Sentencing Act 1997 (Tas)).

Records of Convictions

The police will record all charges where there has been a finding of guilt against the defender whether or not that person has been convicted. These records are usually produced by the prosecution at the sentencing hearing and are normally relevant to the sentencing process. This information is also released when you apply for a National Police Check, which is now often standard procedure for job applicants to produce when applying for employment.

The Annulled Convictions Act 2003 (Tas), has had the effect of restricting disclosure of information about some minor convictions. This includes where a person with a minor conviction is of good behaviour for 5-10 years (s6Annulled Convictions Act), or where the offence for which the person was convicted is no longer an offence under any law (s8). An annullment means that a person is not required to disclose the conviction to any other person, and the annulled conviction is not part of the person’s official criminal record (s9).

Time Limits

There is no time limit to a charge on indictable offences, that is, crimes. However a complaint for an offence to be tried before a magistrate (summarily) must be laid within 6 months (s26Justices Act) although that period can be extended in certain circumstances. Other Acts stipulate longer time limits.

Sentencing

Factors relevant to sentence are many and varied and include but are not limited to the following considerations:-

  • prior criminal history;
  • age;
  • circumstances of the offence and motive for the commission of the offence;
  • background and personal circumstances of the offender;
  • prospects of the offender being rehabilitated;
  • personal deterrence;
  • general deterrence;
  • retribution

These factors have the potential to significantly influence a sentence. Often the judge or magistrate will require written medical, psychiatric or pre-sentence reports before they can sentence the offender. Witnesses may also be called to give oral evidence or victims can tender Victim Impact Statements for the court to consider in determining a sentence. Judges and magistrates may be subject to enactments relating specifically to the offence - for example minimum disqualification and minimum fine provisions in the Road Safety (Alcohol and Drugs Act) 1970.

Sentencing therefore is a finely balanced consideration of many issues and has been described as being an art rather than a science. Whilst sentences imposed for similar crimes and offences are relevant in determining the appropriate sentence, it should be noted that no two persons and no two crimes are the same.

The Sentencing Act 1997 was enacted essentially to amend and consolidate the law relating to the sentencing of offenders in the state of Tasmania. The principles espoused in the Sentencing Act are applicable to the Supreme Court and the Magistrates Court.

Sentencing is much more complicated than you would think. Not only are there fines, community service, sentences of imprisonment, or suspended sentences of imprisonment to consider there are also therapeutic sentencing options available to a justice in deciding a sentence. For example, a person may have committed an offence because of drug problems. The court can decide to divert the offender to a Court Mandated Drug Diversion Program, or make a Drug Treatment Order (s27C, Sentencing Act 1997). A person could be suffering from a mental illness, in which case a Mental Health Diversion List Program is also a sentencing option. These are known as ‘therapeutic jurisprudence’ options, and focus more on rehabilitation than punishment.

Appearing in Court

Criminal Penalties for Indictable Offences

The Sentencing Act 1997 (Tas) (s7) sets out the sentencing options which courts can impose.

Imprisonment

The Criminal Code 1924 (Tas) does not set out specific penalties for particular crimes. Section 389 of the Code provides for the punishment of any crime by a period of imprisonment of up to 21 years or by fine. In practice, the courts have developed an informal scale of penalties for particular crimes. In a case of murder a life sentence is the maximum penalty. The Supreme Court can also impose any other penalties available under the Sentencing Act such as probation, community service orders and suspended sentences.

Where the court does not state the commencing date of a sentence, it takes effect from the day on which it is passed by the judge. The judge will be told what date the accused was first taken into custody, and normally orders that the sentence commence from that date.

If an accused is convicted of more than one offence, there are separate sentences for each offence and the judge generally orders that the sentences be served at the same time (‘concurrently’). The judge may, however, increase the time the accused will spend in prison by directing that the sentences be served one after the other (‘cumulatively’).

The court may (although it is rare) declare a person, with previous convictions, who has been convicted of a violent crime, to be a dangerous criminal. That person is then to be detained during the Governor's pleasure (Sentencing Act, s19).

Normally the section of the Act which creates an offence, also lays down the maximum period of imprisonment. The magistrate is able to impose a lesser period of imprisonment than this maximum (which is normally reserved for the worst type of conduct which could constitute the offence). Generally, magistrates are dealing with Acts that only allow them to impose up to one year's imprisonment for a first offence (five years for a second or subsequent offence). Exceptions are drug cases and indictable offences dealt with summarily under the Justices Act, where up to two years' imprisonment can be imposed by magistrates. Three years imprisonment can be imposed in cases of motor vehicle stealing.

The magistrate may direct that a sentence of imprisonment not commence until the defendant has completed a term of imprisonment which is already being served.  Sentences of imprisonment may be either concurrent (to be served at the same time) or consecutive or cumulative (to be served one after the other).

Adjournments with Conditions

Under the Sentencing Act (s7(f)) a court may release a defendant and adjourn the proceedings for a period up to five years on the defendant’s giving an undertaking with conditions attached.  Conditions for adjournments are:

  • that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;
  • that the offender must be of good behaviour during the period of the adjournment;
  • that the offender must observe any conditions imposed by the court (s59).

If the person doesn’t comply with the conditions, they will be called up before the court and the original matter will be reconsidered. At the hearing of the breach the prosecution will have to prove both the fact of the original offence, as well as proving the breach. After hearing evidence of the breach and any evidence that the defendant may call, the magistrate may decide either to take no action, or to impose a sentence for the original offence.

Suspended Sentences/Combined Sentences

Where a sentence of imprisonment has been imposed, this may be suspended with conditions.  If the conditions of a suspended sentence are breached, the most usual course is for the court to order that the sentence take effect, but a shorter term of imprisonment or any other sentence that could have been imposed for the original offence may be imposed (though not a longer sentence than the one suspended) (Sentencing Act, s27).

Probation

A probation order places the defendant under the supervision of a probation officer for up to three years. This means that a probation officer will maintain contact with the person to ensure that their living and work arrangements and other aspects of that person's life are satisfactory. The defendant should tell the probation officer of changes of address, work and such like circumstances.

Conditions of probation orders are similar to those for community service orders.

In addition, the offender must if directed to by the court or probation officer: attend educational and other programs; undergo assessment and treatment for alcohol or drug dependency; submit to testing for alcohol or drug use; and submit to medical, psychological or psychiatric assessment or treatment. Breaches of a probation order are similar to those for breaches of a community service order.

Community Service Orders

Instead of sentencing a defendant to prison, a magistrate may order that the defendant carry out some unpaid work, service or activity, up to a maximum of 240 hours (10 days). These are known as ‘community service orders’ or ‘work orders’. This sentencing option is only available where an officer from the Community Corrections Service reports that work is available in the defendant's area, and that the defendant is a suitable person for such an order.

The conditions for a community order are that:

  • the person must not commit any offences punishable by imprisonment while on the order;
  • they must report within a day to a probation officer or supervisor;
  • they must satisfactorily perform the community service and comply with the reasonable directions of a probation officer or supervisor;
  • they must give notification to a probation officer of any change of address or employment within two clear working days;
  • they mustn’t leave Tasmania without permission;
  • they must attend educational and other programs as directed by a probation officer (time spent on any such program is counted towards the community service) (Sentencing Act, s28).

Failure to comply with a community service order can lead to a fine being imposed not exceeding 10 penalty units or imprisonment not exceeding 3 months. In addition the community service order might be increased or the person may be re-sentenced for the original offence

Fines

Fines, restitution orders and compensation orders can all be imposed, although the court will look at the offender’s ability to pay before imposing all of these (Sentencing Act, s43).
Fines are collected by the Magistrates Court (including those imposed by the Supreme Court) (Sentencing Act, s45). Time will usually be allowed to pay or the fine may be paid through instalments.

If the fine is not paid when it is due, the fine may be treated like a civil debt by the Magistrates Court (Civil Division) which means that the person’s assets may be seized (Sentencing Act, s53).

Alternatively a warrant might be issued and when the person is brought before the court, a range of other sentencing options may be looked at. One option is imprisonment and if the person fails to pay the fine, they may be imprisoned for one day for each penalty unit of the fine. In this case they will be brought before the court on a warrant of apprehension. Continued failure will mean that a warrant of commitment is issued. This means the person goes straight to jail to serve out the fine unless they can pay off the fine on the spot.

However it is usual for fine defaulters to be given a further chance to pay the fine before being jailed. The fine may be changed into a community service order at the rate of 7 hours for each prescribed unit. A defendant who is having difficulty paying a fine should ask for time to pay at the Monetary Penalties Enforcement Unit or apply to the Clerk of the Court at the court where the fine was imposed. The Monetary Penalties Enforcement Unit can be contacted on 1300 366 776 or by email at fines@justice.tas.gov.au.

No Conviction Recorded

Where the court thinks that a charge is proved, but considers that the offender, because of their character, antecedents, age, health or mental condition (or because of the trivial nature of the offence, or its extenuating circumstances) should not be punished or be only nominally punished, the magistrate may, without proceeding to a conviction, make an order either dismissing the charge or adjourn the case with conditions (see above) (Sentencing Act, s7(h)). Such a finding is very important, because it does not have the effect of a conviction.

Restitution

A magistrate may order a defendant to restore stolen goods to the victim, either that person’s goods or the equivalent money value (s65). Similarly the court may order the defendant to pay compensation for injury or loss sustained by a person through the defendant's act of burglary, stealing or damage to property (s68).

Area Restriction Order

An area restriction order is an order of the court that a person must not loiter in an area during such times as are specified in the order.

Court Costs

Court costs are usually imposed on a defendant if they plead, or are found guilty, of an offence. These may be 'remitted' in case of especially needy circumstances. Where a charge is brought by a private person (including an officer from a government department), the defendant may have to pay legal costs if found guilty.

A defendant, whether convicted or successful in their defence, may also apply for an order of costs against the prosecutor under the Costs in Criminal Cases Act 1976 (Tas). A certificate may be given if the magistrate finds that on or before the commencement of proceedings, the prosecution had sufficient material available to indicate that it was not reasonable to proceed, and that any act or omission of the defendant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances. If these costs are not paid, the informant can be imprisoned for one day for each penalty unit of costs ordered. This is particularly relevant to private prosecutions.

Appeals in the Supreme Court

A person who has been convicted by a jury, or has pleaded guilty and been sentenced by a Supreme Court judge, has a right of appeal to the Court of Criminal Appeal. The appeal must be made on one of the following grounds:

  • against conviction on any ground which only involves a question of law;
  • with the leave of the court, against conviction on any ground which involves a question of fact, or mixed law and fact, or some other sufficient ground of appeal;
  • with the leave of the court, against the sentence passed (Criminal Codes401).

The notice of appeal must be lodged with the Court of Criminal Appeal within fourteen days of the date of conviction or sentence. If an appeal is not lodged within fourteen days, an application will have to be made to the Court of Criminal Appeal for an extension of time to appeal. An appellant is generally entitled to be present at the appeal. The grounds of appeal which will be relied on must be lodged with the court.

Appeal against Conviction

An appellant is not able to have the matter completely re-heard by the appeal court, as is sometimes the case with appeals from magistrates.

The appellant must convince the Court of Criminal Appeal that:

  • the jury's verdict should be set aside as unreasonable or unable to be supported; or
  • there was a wrong decision on a question of law; or
  • there was a miscarriage of justice on any ground.

Even if the court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred.

The appeal will generally be decided on issues arising from the transcript of the evidence at the trial, but if the appellant has fresh evidence, this should be placed before the court in the form of affidavits from witnesses saying what they would say if called in a new trial.

Appeal Against Sentence

If the Court of Criminal Appeal agrees that the sentence is too severe, it may reduce it. The court also has the power to increase the sentence if it takes the opposite view. It should also be noted that the Crown can appeal against the sentence imposed by the trial judge if it thinks it was too lenient. The court can increase the sentence if it thinks fit.

Dangers in Appealing

There are two reasons why an appellant in jail should be careful about appealing.

  • A sentence can be increased by an appeal court
  • The time spent in jail waiting for the appeal to be heard does not necessarily count towards the sentence.
  • It may be several months before the appeal is heard, and an appellant held in custody will be ineligible for various programs arranged by the prison.

The Hearing

The appeal is heard by a single supreme court judge. There may be a number of appearances for ‘mention’ before a hearing finally takes place, though most appeals are heard about four to twelve weeks after the appeal is lodged.

The appeal will usually consist of submissions (that is, argument) made by the appellant or their lawyer to the court followed by submissions in reply from the Crown. The judge will then have to decide the appeal. Decisions are frequently ‘reserved’ to allow the judge to carefully consider all the issues.

A further appeal can be made to the Full Court of the Supreme Court against a decision made by a single judge. From there, an appeal can lie on a point of law to the High Court, but only with permission (special leave) from the High Court.

Coroner's Court

When an unnatural death or unexplained fire occurs, it is the practice for a coroner to hold a coroner's inquest. The coroner will also hold an inquest when informed by a police officer that a person has died within 24 hours after being given an anaesthetic during an operation, or has died in a mental hospital or prison. The purpose of the inquest is to determine the manner and cause of the death and to decide whether a  prima facie case exists against a person for an indictable offence arising out of the incident.

Coroners sit in the Coroner's Court (part of the Magistrate’s Court) but they are not bound by the normal rules of procedure and evidence. If the coroner decides that a prima facie case exists against any person for an indictable offence, they may commit the person for trial in the Supreme Court. The Director of Public Prosecutions may then decide whether or not an indictment will be laid.

In Tasmania this is rarely done. If there is good cause to believe that the death was caused by a crime, it is usual practice to charge the person, and to hold committal proceedings before the inquest is concluded.

Legal Representation

If the defendant is not legally represented they should ask the magistrate to adjourn the matter so that they can obtain legal advice.

Defendants who cannot afford legal advice can seek legal aid through their private solicitor or go to the Legal Aid Commission Office. Defendants can contact the Duty Solicitors who are usually present at Court of Petty Sessions.  There are court volunteers present in some centres. Community Legal Services can also offer limited assistance.

Offences

What is a Summary Offence?

Most criminal charges are summary offences heard by magistrates sitting in the Magistrates Court (Criminal Division) commonly called the Court of Petty Sessions.  A summary offence is one which can be heard by a magistrate. Set out below is an outline of what happens when a person is charged with a summary offence.

What is an Indictable Offence?

An indictable offence is a more serious offence than a summary offence. Indictable offences are usually tried before the Supreme Court in a jury trial. There are some indictable offences that can be dealt with summarily (by a magistrate). See Indictable Offences.

Offences tried by Judge and Jury: Indictable Offences

Preparation for the Trial

Deciding the Charge

If a defendant is committed for trial and is released on bail, they may have to wait up to six months before the trial starts. If they are held in custody, there may be a wait of two to three months. The minimum period is 7 weeks.

The depositions are sent to the Crown, who arranges for a Crown Prosecutor to consider it and decide whether the case should go to trial, and if so, what the ‘indictment’ (the formal charge) should be. If the Crown Prosecutor thinks the case should go to trial, the Prosecutor may file an indictment for the charge on which the defendant was committed. Alternatively, they may add other charges or substitute an entirely different charge. This process is called ‘finding a bill’ (of indictment) against the defendant.

If the case is weak

If the Crown Prosecutor considers that the case is not sufficiently strong against the defendant, they will recommend (to the Director of Public Prosecutions) that no bill of indictment be found. The Director of Public Prosecutions will normally support this recommendation.

New Evidence

The defendant is entitled to know if the prosecution intends to call witnesses who were not called at the committal hearing, or if they intend to change the charges. When the Crown intends to call a new witness, they will send to the defendant a copy of the statement made by the witness, so the defendant can prepare a case.

Trial Before a Jury

The defendant will be bailed or remanded to the first day of the next sittings of the Supreme Court in Hobart, Launceston or Burnie. If the trial is to proceed, it will rarely, if ever, commence on that day, and a new date will be fixed for attendance.

The case will be listed for 10 a.m. on the day of the hearing. When the case is called on for hearing (not necessarily at 10 a.m.), the person charged (the accused) is placed in the dock, and the Crown Prosecutor presents an indictment (this is the written accusation made against the accused). The indictment is read out to the accused who is asked to plead. If the accused pleads ‘guilty’, there is no need for the jury, and the judge considers what sentence to give the accused. If the accused pleads ‘not guilty’, the jury is chosen and ‘empanelled’. A jury of 12 people is empanelled, out of about 50 people who are summoned to the court. Their names are chosen at random from a box, and both the accused and the prosecution have the right to refuse (‘challenge’) the juror. The prosecution can challenge without having to give a reason for rejecting the juror. The defence (where there is only one person accused) can only challenge six jurors without a reason. Where there are more than one accused, each accused has six challenges without having to give a reason. (A ‘reason’ for challenging might be that the potential juror is a neighbour or is otherwise known to the accused). The defence lawyer will consult with the accused before challenging.

After the jury has been empanelled, the trial commences. The Crown Prosecutor makes an opening statement to the jury, and then calls the prosecution witnesses one by one. The accused's lawyer may cross-examine the witnesses. At the end of the prosecution case, if it is appropriate, the lawyer for the accused may submit that the judge should direct the jury to acquit on the basis that there is no case to answer. If this submission does not succeed, the accused's lawyer may call evidence, both from the accused and from any other witnesses.  The accused can go into the witness box to give evidence on oath and be cross-examined. Alternatively, the accused can remain silent.

After all the evidence is given, both the Crown Prosecutor and the accused's lawyer address the jury. The judge then sums up the case for the jury, explains and rules upon any matters of law, and the jury retires to consider its verdict. The jury returns to the courtroom, and the foreperson gives the jury's verdict. This verdict must be unanimous up until a jury has deliberated for a period of 2 hours. After that time a verdict of either guilty or not guilty can still be taken by a majority verdict of ten or more jurors, except for murder which requires 6 hours deliberation by a jury before a majority verdict is permitted.

After an accused has pleaded guilty to, or been found guilty of, an indictable offence, the judge hears evidence of the accused's character and background and previous criminal convictions before passing sentence. A pre-sentence report may have been prepared by a probation officer. The accused will then be asked if there is anything they want to say. The accused's lawyer may make submissions as to sentence, and if necessary may call character or other witnesses relevant to sentence. If desirable, the court will order a pre-sentence report, and/or a drug/alcohol dependency report before considering what sentence is to be imposed.

Preliminary Proceedings

As explained above, summary offences are generally the less serious offences, which are normally heard and decided by a single magistrate in a Court of Petty Sessions.

The more serious offences are generally heard before a judge and jury in the Supreme Court, and are called ‘indictable’ offences.

Preliminary proceedings are governed by the Justices Act 1959. They take place in a Court of Petty Sessions at the Magistrates Court. Preliminary proceedings are intended to help streamline the process of trial by directing a defendant into the appropriate proceeding. At the preliminary proceedings, the defendant can plead guilty or not guilty, and if the type of offence permits, elect either a summary trial or a trial before a jury. If the defendant pleads guilty, the next appearance will be for sentence. If the defendant pleads not guilty, s/he will either be directed into a summary trial or a jury trial, depending on the offence.

‘Guilty’ Pleas

If a defendant pleads guilty to an indictable offence, (other than one that can be dealt with by the Magistrate’s Court) the plea must be endorsed on the complaint, and the person will be committed to the Supreme Court for sentence (Justices Act, s60(1)). Under some circumstances, a magistrate has the power to commit a person, convicted summarily, to the Supreme Court for sentence (s72B(2)).

Alibi Evidence

Defendants charged with an indictable offence are required to give notice in advance if they are going to rely upon alibi evidence in defence. The defendant must include particulars of the alibi, and the name and address of any person proposed to be called in support of the alibi (Criminal Code, s368A).

Record of the Hearing

The evidence of the witnesses at the preliminary proceedings is recorded and typed up in documents known as ‘depositions’. A free copy of these depositions is available from the Crown for the accused to use at the trial.

Indictable Offences dealt with Summarily

Special rules apply to certain indictable offences which enable them to be dealt with summarily. They fall into two groups: those where the offence may be dealt with summarily without the accused's consent, and those where the accused's consent is required.

Indictable offences (such as stealing, killing of animals with intent to steal, false pretences and receiving) must be dealt with summarily without the defendant's consent if the amount of money or value of the property involved does not exceed $5,000, though a magistrate can still decide that in special circumstances they should go before a jury. (Justices Act, s71).

Certain other indictable crimes may be dealt with summarily with the consent of the defendant. These include escape, harbouring offenders and the making of false declarations. If the accused does consent, the case will proceed as with other summary offences.

Special provisions apply to children who are dealt with under the Youth Justice Act or persons under the age of 18 who are appearing jointly with an adult offender (Youth Justice Act 1997 (Tas)).
In making the choice to have the magistrate decide the matter rather than to go before a judge and jury, the defendant should take into account the following factors:

  • the chances of an acquittal may be higher before a jury than before a magistrate;
  • the defence may be better able to present its case before a jury, being able to rely on the evidence given in the committal proceedings;
  • if the accused is convicted by a magistrate, there may be a second chance through an appeal to the Supreme Court;
  • the penalties a magistrate can impose are lower than those that a judge can impose after a jury trial.

Laying A Charge

An indictable offence is a more serious offence than a summary offence. Indictable offences are usually tried before the Supreme Court in a jury trial. There are some indictable offences that can be dealth with summarily (by a magistrate). See Indictable Offences.

Deciding to Prosecute

Although it may appear that a person is at first sight guilty of an offence, the police officer may decide not to go on with the charges because of any one of a number of reasons including:

  • the old age, or youth, or illness of the offender;
  • the offender's willingness to give evidence against someone else;
  • the fact that the relevant law is obsolete, or unpopular, or controversial; or
  • the breach of the law was only technical or trivial.

Bringing the Defendant to Court

For court proceedings to commence the defendant must first appear before the court. Arrest is one method of getting the accused to court. Another is by way of summons, especially in traffic offences, taxation offences and breaches of local government provisions. In these cases, the defendant is served with a summons giving the date the matter is to be listed before the court. A summons is normally served by a police officer, who either gives it personally to the person to whom it is directed, or leaves it with someone else at the person's last, or most usual, address.

Instead of a summons, a warrant may be issued empowering police to arrest a person and bring them before a court. This usually happens when the offence is so serious that it is feared they will disappear if only a summons is issued, or if the person's address is not known, or they have disobeyed a summons before.

The above procedure applies to both adult courts and Youth Justice Courts.

Details of Charges

Defendants should be given enough information about the alleged offence (particulars) to enable them to conduct their defence properly. For example, in dangerous driving cases, defendants should be given details of the exact time and place of the alleged offence and in what way the driving was supposed to be dangerous. Police may be reluctant to provide these particulars, but should produce them if requested. This should be done in writing so that evidence of the request, if refused, can be produced in court.

Under Tasmania Police policy, a defendant may obtain a copy of the prosecution brief prior to the commencement of the case.  Additional information may be available under right to information legislation. A Right to Information Unit exists within Tasmania Police headquarters.

In Court

Courts of Petty Sessions sit every weekday in major centres. A Court also sits less frequently in country centres, usually at council chambers. Cases are conducted before a magistrate who sits at a raised bench at the front of the court. Most criminal cases are the result of police action, and the case for the police is presented by a police prosecutor (normally not uniformed) from a large table called the bar table in front of the magistrate. A clerk usually sits below the magistrate recording the proceedings. The proceedings are tape-recorded. Court hearings for summary offences must be heard in public except where a child or young person is concerned. The court can, in special circumstances , sit in a closed court from which the public are excluded (Justices Act 1959 (Tas)s37).

If the defendant is represented by a lawyer, the lawyer will sit at the bar table, and the defendant will sit next to the lawyer. Unrepresented defendants have a chair placed for them near the bar table, facing the magistrate. It is usual for a defendant in custody to remain in the dock (a closed box in the middle or back of most courts) even if unrepresented.

First Appearance in Court

If a person has been arrested and charged with an offence, they will have to appear personally before the court when the matter is listed. This is normally on the day they are charged, or the next day. This applies even if the person is represented by a lawyer at the first hearing.

A person who is summonsed to appear before a Court of Petty Sessions must appear personally even if a lawyer appears on their behalf. If no appearance at all is made, the magistrate may issue an arrest warrant or hear the case in the person's absence (Justices Rules 2003 (Tas)rule 32).

On the first appearance in court, the charge is read out. The defendant cannot be made to enter a plea (that is, say whether they are guilty or not) at this stage, and certainly should not plead unless they have legal advice to do so. A defendant should seek legal advice before this first appearance if possible.

Magistrates Courts now operates an ‘Adjournment Court’ between 9.30 and 10 am for first appearance matters.

If the defendant wishes to plead not guilty and defend the charge, the case will be adjourned to another date. The prosecution will not be ready with witnesses on the first appearance. Also, the court will not have time to hear the case that day.

Adjournments

When a defendant first appears in court, the case will normally be adjourned for at least two to four weeks so that the defendant can obtain legal advice. If this is done, the case will be listed on the adjourned date as being for ‘plea’, meaning that the magistrate will hear it on that date if the defendant pleads guilty. Otherwise the case will only be ‘mentioned’ on that date in order to obtain a date for a full hearing. The magistrate has a general power, either before or during the hearing, to adjourn cases. Cases may be adjourned for any reasonable period, whether the defendant consents or not.

When the case is adjourned to another day for hearing, the defendant will have to appear personally on the adjourned date. If the case is merely to be ‘mentioned’, it may be possible, with a less serious charge, for the defendant not to attend, provided the prosecutor does not object.

Plea of Guilty

Most charges are dealt with as a plea of guilty. This is where the defendant admits to the charge. Often this happens after negotiations with prosecution (normally through a lawyer). This may result in a more serious charge being dropped and replaced with a less serious charge. In this case the original complaint may be withdrawn and a new complaint filed in the court. In other cases the particulars, or other circumstances of the charge are changed so that the charge will be treated less seriously. Where there are multiple charges, some may be dropped in exchange for a plea of guilty to the remaining charges. In this case the prosecution will ‘tender no evidence’ on the charges to be dropped and they will be ‘dismissed’.

The procedure is then the same as after a plea of guilty.

If the defendant pleads ‘guilty’, the magistrate will first call on the police prosecutor to outline the facts of the case. The prosecutor may make these facts available before court commences and they should be checked for accuracy by the defendant (or a lawyer) before they are read or given in evidence. These facts will be presented by the prosecutor who is in charge of the matter. Information may also be given by the prosecutor or the police officer about the defendant's ‘antecedents’, that is, their age, marital status and occupation, though this is usually done by the defendant (or their lawyer) in the ‘plea of mitigation’. The prosecutor will inform the magistrate of any prior convictions recorded against the defendant after checking those for accuracy with the defendant.

If the defendant seriously disputes any of the facts as stated by the prosecution the magistrate must hear sworn evidence and resolve the conflict. Such conflicts are better resolved beforehand.

The magistrate will then call on the defendant, or the defendant's lawyer, to present any facts in mitigation (lessening) of the offence. The defence may hand up to the magistrate references of the defendant's character. The defence can call witnesses to the defendant's good character or to explain the circumstances that led to the offence, or the defendant can give evidence about this and any other mitigating circumstances.

If a probation officer or parole officer has been involved with supervising the defendant, they may be asked to prepare a report for the court and be available to answer questions. In most cases where imprisonment is being considered as a possible option, the magistrate will ask that a pre-sentence report be obtained to help determine the appropriate sentence. If this report is not available to the court, the case will normally have to be adjourned for between two and six weeks for it to be obtained. At the conclusion, the defendant or their lawyer will address the magistrate on why a severe penalty should not be imposed, and as to the most appropriate penalty for the individual defendant. The prosecution has the power to address on sentence, but rarely uses it. The magistrate will then give a decision.

Evidence

The Evidence Act 2001 (Tas) commenced in 2002. Evidence covers all the information given directly to the court by a witness or in the form of documents and of which the court takes notice because it complies with the ‘rules of evidence. The rules are as follows:

Relevance

One of the requirements is that evidence must be relevant to the issue being tried. For instance, when a person is charged with theft from a house, it would be a relevant fact that their finger-prints were found on the windowsill of the house, whereas it would be considered irrelevant that they often consumed too much alcohol, or came from a family of thieves.

Hearsay Evidence

A witness will be asked to tell the court only what they saw or heard, not what someone else told them occurred (hearsay evidence). For example, a witness can say, ‘I saw X walk over and punch Y on the jaw’, but not, ‘I wasn't there at the time, but B told me that he saw X walk over and punch Y on the jaw’. Whether a particular piece of evidence is hearsay or not is often a difficult question. It is a complex area of law subject to many exceptions at common law and under the Evidence Act.

Opinion Evidence

In general, the opinion of a witness is not admissible unless the witness is an expert in the field on which the opinion is given. Thus, a doctor may be able to give an opinion on whether a particular blow may have caused the death of a person, while a non-medical witness cannot give such an opinion as evidence. Lay witnesses are able to give evidence on matters for which the ordinary experience of everyday life is sufficient, for example, speed of a vehicle, weather, handwriting, general identity and whether or not a person seemed drunk.

Character Evidence

Generally, the prosecution cannot ask a defendant questions which tend to show that they are a person of bad character, or have committed other offences. But if the defendant, or their lawyer, attempts to attack the character of a prosecution witness by showing bad conduct by that witness the court may in turn allow the defendant (if they give evidence) to be questioned about their own bad character or conduct (Evidence Act, s104(4)). The defendant is entitled to raise their good character as an issue at their trial and to have such evidence taken into account on the question of their guilt or innocence. If they do so, however, the prosecution can call evidence which would tend to show that the defendant is of bad character if this is the case. A decision to attack the character of prosecution witnesses or positively raise the good character of the defendant always needs careful consideration.

Confessions

Evidence is often given that the defendant made an admission or confession of guilt. The evidence may be of a conversation in which the defendant verbally confessed, or it may be a written record of questions asked by a police officer and answers given by the defendant (that is, ‘a record of interview’). In the case of serious offences, the interview of the defendant by police must be electronically recorded, usually by video. Any confession must be made freely and voluntarily for it to be admissible in evidence. It may not be admitted if it was induced by a threat or promise or an untrue representation made by the prosecutor or some person in authority.

The defence may object to the admissibility of a record of interview on this ground, and the magistrate will consider whether to admit it as voluntary or not. Even if the magistrate decides that the confession is voluntary, they may exclude it if it would be unfair to the defendant to admit it. The magistrate may also exclude the confession on the grounds of public policy. This involves weighing up the public interest in having offenders convicted, against the public interest in discouraging police officers from engaging in unlawful conduct during the investigation of a crime.

Procedure for Defended Hearings

Prosecution and Defence

If the defendant pleads ‘not guilty’ the case will be listed as a defended hearing.

The Prosecution Case

On the day of the hearing, the magistrate will first call on the police prosecutor (when the charge has been laid by the police and not by a private citizen) to present the case for the prosecution. The prosecutor normally does not make an opening statement, but calls on the police witnesses and other witnesses to give their evidence one by one. Each witness enters the witness box near the magistrate, and is required to take an oath on a bible, or an affirmation to tell the truth (Justices Act 1959 (Tas), s39). The prosecutor then asks the witness questions (called ‘evidence in chief’).

When the prosecutor is finished, the defendant (or their lawyer if represented) is entitled to ask questions in ‘cross-examination’. The magistrate will decide whether questions asked by either side are permissible in terms of the rules of evidence for criminal court hearings.

The Defence Case

When all the witnesses for the prosecution have been heard, and the prosecution case has closed, the defendant may submit to the magistrate that they have no case to answer. In this submission, the defendant asks the magistrate to dismiss the prosecution's charge, without even hearing from the defendant, on the basis that the prosecution has not produced any evidence in law to support the charge. If the magistrate agrees with this submission, the charge will be dismissed and the case against the defendant will be over.

If the magistrate does not agree with this submission (if it is made), that there is no case to answer, the magistrate will call upon the defendant to present their case. The defendant may give evidence by going into the witness box, taking the oath or affirmation and answering any questions, asked firstly by their lawyer and then by the prosecutor in cross-examination.

The defendant cannot, however, be forced to give evidence. The defendant may also call witnesses who can give evidence. If the defence wishes to address the magistrate about the case, this should be done at the opening of the case. Neither side has a right to address the court at the close of the evidence without leave  (Justices Rules 2003 (Tas)rule 35(1)(f)).

Defences

There are a number of different defences available to the defendant. If appropriate, a defendant may rely on more than one defence as alternatives, but must be careful not to prejudice a good defence by throwing in weaker and conflicting defences. Some common examples of general defences are as follows.

Mens Rea

This is a Latin term meaning ‘guilty mind’. It is presumed to be an aspect of all offences unless displaced by the wording of the Act. Where the state of mind is an ingredient of the crime, such as murder, the prosecution has to prove not only that the defendant did the act, but also that they had a guilty mind (they knew the wrongfulness of the act). However the absence of mens rea is an aspect of defence.

For instance, in a case of fraud there must be the intention to defraud or recklessness. So in a case of social security fraud where the defendant has under-declared their income, the defence might be that the accused provided Centrelink with net earnings instead of gross earnings under the mistaken belief that this was what was required. If the court believes this, then the mental element necessary for fraud would not be made out.

Failure to identify the defendant

The prosecution may try to prove that it was the defendant who committed an offence by means of eye witnesses, identification parades, fingerprint evidence and handwriting evidence. The defendant will attempt to point out weaknesses in the prosecution’s evidence of identification.

Alibi

Alibi evidence is used to show that the defendant could not have been at the place where the offence is supposed to have been committed, because at the time they were somewhere else. This evidence may be given by the defendant and other witnesses on the defendant’s  behalf.

Intoxication (Drunkenness)

Being affected by alcohol or drugs is no defence to a serious crime unless the defendant was so intoxicated that they were incapable of reason, in which case a crime of specific intent such as murder may be reduced to manslaughter.  This is therefore a limited defence.  However, intoxication is relevant and admissible regarding minor offences where intent or knowledge on the part of the defendant is an element of the charge.

Mental illness

It is a defence that the defendant was mentally ill at the time of the alleged offence. However, the result of a successful defence on this ground is that the defendant is detained in a mental hospital ‘during the governor's pleasure’. Because of the serious consequences, mental illness is rarely raised as a defence, and only in the most grave cases such as murder. Expert medical evidence is necessary to establish this defence.

Provocation

Provocation can only be used as a defence to reduce the charge of murder to manslaughter. In any other case, it cannot be used as a defence, although it can be taken into account by the court after conviction when considering an appropriate penalty. Provocation is not a defence to a charge of assault.

Self-defence

A person may be entitled to use force to defend themself or another person or even their property from attack by someone else. In defence of property, the force used must be reasonable, an issue of fact for the court to determine. Raising a defence of self-defence for murder, it must be established that the defendant was assaulted with such force as to cause him/her to think they might be killed or suffer grievous bodily harm. However, in defence, for assault, it is what the accused believed upon reasonable grounds was necessary in self-defence.

Consent

In some cases of assault and sexual assault, it is a defence that the complainant consented to the alleged assault.

Necessity

Necessity may be raised as a defence where the act of the defendant was necessary to avert serious danger, and the action taken was in proportion to the danger which the defendant was trying to avert. The defence of necessity is approached by courts with considerable caution.

Duress

A defendant may raise the defence of duress where threats of immediate death or serious personal violence were so great as to overbear their resistance to  carrying out the criminal act. The overpowering of the defendant's will must have occurred at the time the criminal act was committed.

Infancy

Criminal responsibility of children is dealt with under Youth.

Failure to prove beyond reasonable doubt

The defendant may concentrate on putting the prosecution to the test of proving their case beyond reasonable doubt. The defence will attempt to show up any inconsistencies and shortcomings in the prosecution case.

The Prosecutor's Reply

When the defence case is closed, the prosecution may give evidence in reply to any new point raised in the defence case. This is called 'evidence in rebuttal' and is very rarely permitted.

The Court's Verdict

After all the evidence is heard, the two sides can only comment on the evidence with the leave of the court. Such leave will usually only be given where the evidence is complex or a complicated legal issue arises. After hearing all the evidence and these addresses, the magistrate has the duty, without referring to any other person or body, to decide the matter. In some cases, the magistrate may adjourn the case to consider the verdict, but normally the verdict will be given straight away.

If there is any reasonable doubt whether or not the defendant is guilty of the offence charged, the magistrate will dismiss the charge, and allow the defendant to go free. If, however, the magistrate is satisfied beyond reasonable doubt that the defendant is guilty they will find the offence proved and will then consider what penalty should be applied.

Appeals in the Magistrates Court

When to Appeal

An appeal may be made against a magistrate's decision to the Supreme Court. This can be done either against conviction or against the severity of the sentence. The appeal must be made within 21 days of conviction or sentence, though this period can be extended by making an application to the Supreme Court which satisfactorily explains the delay (s107, Justices Act 1959 (Tas)).

In special circumstances, the Supreme Court may grant a re-hearing (s111). In other circumstances, a case in the Court of Petty Sessions may be transferred to the Supreme Court as a ‘case stated’ if an important question of law is involved (s114).

Deciding Whether to Appeal

A defendant can appeal against conviction on either an error of fact (for example, that the evidence was wrongly interpreted) or on a question of law (for example, that the evidence could not legally justify conviction). Success may result in either the quashing of a conviction, or an order that the matter be re-heard properly by another magistrate. If the defendant does not wish to deny that they were properly convicted of the offence, but feel that the sentence given was too harsh, they can appeal against severity only. In this case, the hearing will be restricted to evidence and submissions which affect the sentence. If the defendant is in doubt about whether they should appeal against their conviction, or against the severity of their sentence only, they should get legal advice.

There are two drawbacks to appeals.

  • Persons appealing may be ordered to pay some costs if they lose their appeal. If the person appealing is concerned about that possibility, they should consult a lawyer.
  • A supreme court judge has the power to increase the sentence when hearing the appeal. They cannot give a longer sentence than the magistrate could have given under the particular Act, but they can give a sentence longer than the magistrate actually imposed.

How to Appeal

It is best to obtain legal assistance to make an appeal. A ‘notice to review’ is lodged with the Supreme Court, and copies are served on the Magistrates Court (Criminal Division) and the Director of Public Prosecutions who act on behalf of the police complainant. Where a penalty has been imposed by a magistrate, an application may have to be made to ‘stay’ that penalty pending the hearing of the appeal. This will involve, for instance, an application for suspension of a prison sentence or period of licence disqualification.

Legal Assistance

Legal Assistance Overview

 

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.

Court or Mediation?

In some cases the court process, rather than mediation, is the most appropriate way to sort out disputes. For example, some people want a magistrate to decide who is right or wrong, or they want lawyers to act for them, or they don't want to speak to the other party under any circumstances. (It should be emphasised that most people find mediation very helpful, but if it doesn't work the court system can still be used.)

Mediation is the most appropriate process for the settlement of a dispute if:

  • a person has a problem with another person and doesn’t want it to escalate so much that it has to go to court; or
  • there is a need to continue relating to the other person (for example, as neighbour, ex-spouse or family member) and wants the relationship to improve (or at least not deteriorate); or
  • the person can't (or doesn't want to) pay the costs incurred by court proceedings; and
  • wants to sort out the problem as peacefully, effectively and cheaply as possible.

Legal Help

Legal assistance provides access to the law for many people who would otherwise be unable to afford a lawyer to press their claims in court or assist them in other ways with legal problems. This work can be done either by lawyers on a salary employed by a government-funded agency, or by private solicitors who are paid to represent clients for particular cases.

There are a number of agencies which provide legal assistance in one form or another — the Legal Aid Commission of Tasmania, community legal centres, Environmental Defenders’ office, the Tenants’ Union, the Women’s Legal Service, and the Aboriginal Legal Service. At first glance, the legal aid system seems very complicated. However, each of these agencies is aware of the services offered by the others and can readily refer people to the right place when contacted. The services provided by each of these agencies are described here.
 

Alternatives to Lawyers and Courts

Going to court (or litigation) to resolve a dispute is often costly and/or time consuming. With civl matters – such as property issues, family law, or issues around money, there are alternatives to lawyers and courts. Going to court will mean there is a winner and a loser.

The loser is required to pay the winner's costs. Usually it also means the involvement of lawyers and the feeling of loss of control as legal processes and concepts take over the dispute. It is these features of the traditional litigious model of resolving disputes that has lead to an increasing demand for less ‘adversarial’ (or party against party) ways of achieving that result.

This is known as ‘alternative dispute resolution’.

Alternative Dispute Resolution

This term is used to describe methods of dispute resolution that are alternative to going to court. Alternative dispute resolution includes arbitration, conciliation and mediation. Each of these processes differs in the amount of control exercised by the disputants over the outcome.

Mediation

This is a process in which the parties, together with a neutral third person or persons, identify and isolate disputed issues, develop alternatives for their solution, consider options and reach a mutual agreement that will meet the disputants' needs.

Arbitration

In this process a neutral third party, often chosen by the disputants, is selected or appointed to hear both sides of the argument. The arbitrator then makes a decision by which both parties have agreed to be bound.

Conciliation

This is a vague term. It describes a process which also includes a third party who helps the disputing parties to reach agreement. It emphasises an outcome of 'reconciliation'. Conciliation counselling can include mediation and negotiation.

Negotiation

This is a process which can be part of all of the above. It involves bargaining between the parties. Of these processes, mediation will be discussed in further detail because several mediation services have been established in Tasmania and can be used by the general public.

Mediation

Overview

Mediation involves discussing the problem with the other disputant in the presence of mediators. The mediators are neutral and objective. They will act as facilitators to help the parties find solutions themselves but, unlike a magistrate or judge, they don't make judgements about who is right or wrong, nor make decisions for the parties. They will help the people themselves follow the mediation process, a process that is becoming a powerful way of helping people work through conflict.

Many people think that they should be able to sort out their problems themselves (and many people can, especially after talking them over with a neutral third person), but sometimes:

  • emotions have become too intense, or would become so if the person tried to talk to the other person(s) alone;
  • the problem has got so out of hand that there doesn't seem to be any way to solve it;
  • the person doesn’t feel that their needs and point-of-view have been heard;
  • the person thinks they’ve done all they can and nothing seems to improve or resolve the situation.

In mediation the parties are helped to hear each other's side of the story, discuss and explore each person's needs, communicate more effectively, work out possible solutions to the problem and negotiate future actions. At the end of this process there is usually a written agreement drawn up. This is not legally binding, but it can be made so by a lawyer. It is, however, a morally binding document and a record of agreements which have been made.
 

Magistrates Court mediation

In the Magistrates Court, a mediation will bear upon later litigation, if the agreement reached in mediation is to define issues that are going to trial. There is a $300 fee for mediation in the civil division.

In the Minor Civil Claims division, mediation session is free. In order to settle a small claim without going to court, a ‘Settlement Agreement’ is a way of ending a mediation session without the added costs of litigation. A Settlement Agreement can be made into a ‘Consent Judgment’. If one side fails to comply with their side of the agreement a Consent Judgment is enforceable. Enforceable means that a bailiff can seize property from the non-complying party to auction in order to recoup the promised payment.

See generally the ‘Advice to Parties’ document provided by the Magistrates Court. 

Advantages of Mediation

Mediation is non-adversarial. It does not pit one side against another in a situation in which there must be a winner and a loser. As well as ending up with winners and losers, adversarial situations often create long-lasting bitterness. An example is a court battle over the custody of children. In order to ‘win’ for their client, lawyers sometimes need to use all the ‘dirt’ they can about the other parent. In the end, nobody gains, and the children often lose. It's hard to maintain a cordial, working relationship after an adversarial battle.

Mediations are private and confidential. Using mediators to help solve a problem isn't a sign of weakness — it is recognition that sometimes a neutral third party is needed to help the resolution process along.

Mediation teaches skills which can be used in future dealings with a whole range of people. It is an empowering process, that is, it helps people find ways to solve their own problems, now and in the future.

Mediation is a low cost and quick way to resolve conflicts. Mediation services are either free or they charge according to their clients' incomes. Mediations can be arranged within a few weeks of first contacting a service.

Mediation is flexible. Mediations can be arranged to suit mediator and parties working hours and time commitments.
 

Who Offers Mediation in Tasmania?

Mediation, or 'dispute resolution' is available through the Federal Circuit Court for family law matters, through the Tasmanian Magistrates Court for civil law issues, and also through the Supreme Court for civil law issues. There are a number of private and government organisations offering mediation in Tasmania.

The Legal Aid Commission provides a Referral List service that details Tasmanian mediators. 

How to Use a Mediation Service

Although the details vary between services, these are the general steps which are followed.

  • One of the parties (Party A) contacts the appropriate mediation service either by phone or in person.
  • An ‘intake’ worker will discuss the nature of the dispute with Party A in order to judge its suitability for mediation and to find out what action, if any, has been taken already. (In some cases a direct approach to the neighbour or ex-partner would be the most productive action, but it may be helpful to discuss the best way to go about this with a neutral third person).
  • If appropriate, contact will be made with the second party (Party B), usually by letter, inviting them to participate in mediation.
  • If the response from Party B is positive, a time for mediation will be arranged.

If Party B will not discuss the problem, most services offer an opportunity for Party A to discuss it alone and work out the best course of action.
 

The Law Society of Tasmania

The Law Society of Tasmania provides an internet search function to find a suitable lawyer according to practice area and location in Tasmania.

It also lists the law firms that exist in Tasmania, currently totalling 144 in all.

The Law Society cannot provide legal advice. It is handy to the public in providing a service to find a lawyer.

The Legal Aid Commission of Tasmania

The Legal Aid Commission of Tasmania (LACT) was established in Tasmania in 1991 under the Legal Aid Commission Act 1990 (Tas). The governing body of the Commission consists of representatives of the Commonwealth and State Governments, the private legal profession, a person qualified in financial management, community representatives, and the Director of the Commission.

The LACT has its headquarters in Hobart and has three regional offices in Launceston, Burnie and Devonport. These offices provide a number of different services at ‘first contact’ level. These are legal clinics, phone advice and the duty solicitor scheme. 

Eligibility for Legal Aid

To determine eligibility for legal aid, the Legal Aid Commission of Tasmania provides guidelines. This lists the various tests under which you can apply for legal aid, including the Forum Test, the Means Test, and Merits Test.

Solicitors representing low income clients can apply for legal aid for the client. You should ask your solicitor if they will work for legal aid funding.

Applying for Legal Aid

Applications can either be made through the Legal Aid centre, or through your lawyer. If you have a private lawyer, and not a legal aid lawyer you should ask whether they will apply for legal aid on your behalf.

Clinic Advice Service

The Hobart Office of the Legal Aid Commission of Tasmania runs a Clinic Advice Service, Monday to Friday from 10.30 am to 2.30 pm. Generally, if a person needs legal advice on a family or criminal matter they may attend clinic, or if they wish to find out if they are eligible for legal aid.

The Launceston Office provides a similar clinic service between 12 noon and 1.00 pm on Mondays, Wednesdays and Fridays of each week.

The Burnie Office’s clinic service operates between 12:30 pm and 1.30 pm on Tuesdays and Thursdays.

The Devonport Office’s clinics operate between 1:00 pm and 2:00 pm on Tuesdays and Thursdays.

This service is available to holders of current Health Care or Pension Cards.

If a person has a civil issue they should contact the telephone advice service.

Telephone Advice Service

Everyone can access free legal advice on the telephone advice service. The Hobart Office provides a dedicated phone advice service between 9 am and 5.00 pm each day on 1300 366 611 for the cost of a local call. 

Civil Cases: Civil Disbursement Fund

Generally, civil litigation will not attract legal aid, however there are exceptions with serious personal injury claims, workers compensation claims and professional negligence claims. This does not mean that other types of civil cases will not be considered. Under the Civil Disbursement Fund, Tasmanians who cannot afford to have their case heard before a Court can apply for funds to help pay up front disbursements, such as filing costs, and reports. If the case is won, the applicant must repay the money with a premium. Applications can be made through a lawyer, so speak to your lawyer about this. 

Duty Solicitor Scheme

The LACT operates a Duty Solicitor Scheme at the Magistrates Court at Hobart, Launceston, Burnie, Devonport, Smithton and Queenstown. There is an office at the Hobart Magistrates Court and the Duty Solicitor is available to undertake bail applications and other immediate assistance. There is also a duty solicitor at the Family Court/Federal Circuit Court to assist people who are involved in family law matters. Work undertaken by the Duty Solicitor is available if you have been arrested and wish to apply for bail, or if you are eligible for a grant of legal aid. 

Community Legal Services

Overview

Community legal centres (CLCs) provide free advice to help people sort out their legal problems, and are often a useful first contact point for people with a legal difficulty. CLCs not only give legal advice, but also work to change laws when they are unfair or unjust, and undertake community education to help people in the community understand their legal rights and responsibilities.

There are six CLCs in Tasmania. Of these, three provide a generalist service and are regionally located in Hobart, Launceston and Devonport, whilst the other three are smaller specialist services located in Hobart but with statewide coverage. They are a part of a network of over 160 CLCs, which operate throughout Australia.

The Tasmanian CLCs are funded solely by the Commonwealth Government, although the Tasmanian Government may provide some non-recurrent project funding from time to time. CLCs are ‘non-government organisations’, managed on a voluntary basis by locally-based committees annually elected from the agencies’ membership. They operate independently of the government sector.

General Assistance & Casework

CLCs offer free advice services, with some doing so in evenings as well as daytime. Some of the centres do not require appointments for their sessions, but it is always advisable to telephone first.

CLCs have developed a mode of operation which is quite distinct from Legal Aid Commissions on the one hand and the private legal profession on the other. CLCs have a wider conception of what is involved in legal assistance, and are conscious, in delivering their services, of the socio-economic dimensions of many legal problems, as well as the fact that it may often be preferable to pursue non-legal remedies to such problems. This normally means that both the non-legal and legal aspects of the client’s problem can be dealt with.

Clients are encouraged to work through a problem so they can better understand its wider circumstances, and reach a solution themselves if possible. For many CLC services there is no means test applied, and there is generally no contribution required.

Where necessary, a client will be referred to the Legal Aid Commission Tasmania (if eligible) or a private lawyer. In some cases, follow-up work is done by lawyers employed by the CLCs.

Community Legal Education

Although advice work is the basis of their operations, CLCs also direct a great deal of their resources to community legal education. This may take a variety of forms: brochures and other printed material (like this Handbook), videos, provision of speakers, dissemination of information via the internet or through websites, etc. CLCs should be contacted direct if a group would like a speaker to talk on a specific area of the law, or on the legal system generally.

All CLCs produce and/or carry a wide range of printed material on different areas of the law, including a series of brochures in the ‘Legal Information and Referral’ series, jointly produced by Tasmanian CLCs, the LACT and the Law Society.

The Hobart Community Legal Service produces this Handbook and other educational materials, including videos dealing with aspects of self-representation, and a website which provides up-to-date information on CLC services and contact points.

Law Reform & Advocacy

CLCs also have a philosophy that many of the problems faced by their clients are the result of unjust laws or unjust administration of the law, and that it is not enough to simply deal with these problems at the level of the individual.

CLCs have therefore taken up general issues of concern about the law in the community such as the lack of legal protection for consumers and residential tenants, anti-discrimination provisions, the rights of and protection for children and young people, and conditions in the state’s prisons.  The aim is to change the law or the way it is administered so that the problems generated by such injustices will be overcome.

The role of centres may take such forms as assisting community organisations in campaigns, participating in Parliamentary inquiries, writing submissions, canvassing specific amendments to legislation, lobbying Ministers, and so forth.  CLCs may also combine with other CLCs within a national network of action in pursuit of such legislative reforms.

Hobart Community Legal Service

This service conducts an evening advice service staffed by volunteer lawyers and community workers providing legal advice and referral sessions on Monday and Wednesday evenings between 6.00pm and 7.30pm.

The Service is open each weekday from 9.00am to 5.00pm, when its Child Support Solicitor provides assistance to parents who have the primary daily care and responsibility of children ('carer' parents), with child support or maintenance problems, and its Welfare Rights Advocate assists people in disputes with Centrelink over pension, benefit and allowance payments or eligibility.

The Service also provides advice and assistance on consumer credit and debt matters. It is active in the provision of community legal education and law reform campaigning and advocacy.

Hobart Community Legal Service also operates Sorrell and a Bridgewater Office. The Bridgewater Office provides a general legal advice and referral service to residents in the Bridgewater and Gagebrook areas. That Office is open weekdays from 9.30am to 1.30pm and at other times by appointment. The Office's solicitor makes regular visits to prison facilities, to provide general advice and assistance to prisoners.

Launceston Community Legal Centre

In addition to general legal advice and referral, this service also provides specialist legal services in Immigration, Welfare Rights, Disability Discrimination and Employment Law.  The last two services are state-wide. The Centre provides counselling and support services for Victims of Crime.

The service runs outreach services, giving general legal advice and assistance, in Scottsdale, Deloraine, Ravenswood, Rocherlea and Mowbray. It conducts workshops on legal issues as requested and join with others to conduct law reform campaigns.

North-West Community Legal Centre

This centre has a lawyer who gives advice about a range of legal matters, and provides a limited casework role. Consultations are by appointment, which may be made during office hours.

Centre staff are also available to arrange talks to groups on a number of legal issues.

Your Nearest CLC

CLCs operating in Tasmania offer a wide range of services, including free and confidential legal advice and referral.

The Hobart Community Legal Service, Launceston Community Legal Centre and North-West Community Legal Centre each offer a general legal service within their respective regions of the state.  The other three CLCs listed below offer statewide specialist legal services.

Environmental Defenders Office

The EDO is Tasmania's public interest community legal centre for the environment. The Office assists the public with free legal advice, help with environmental law research, environmental law reform, referral to other groups or agencies and community legal education. See Community and Environment.

Tenants Union of Tasmania

The Tenants Union operates on a part-time basis, and provides a free advice and advocacy service to people experiencing tenancy problems.

Telephone advice is available Monday — Friday, 9.30am—4pm (1 300 652 641).

Appointments are available Tuesday—Thursday, 9.30am—12.00pm.

See Tenancy.

Women's Legal Service

This service offers advice and referrals to women throughout Tasmania, initially via a Freecall number (1 800 68 24 68).

The Freecall advice line is staffed on Monday, Tuesday, Thursday and Friday, 10.00am—12.30pm and 1.30—3.30pm, and on Wednesdays, 6.00—8.00pm, or leave a message at other times or if engaged.

Face-to-face appointments are offered in Hobart and Launceston, and are made via the Freecall number.

Information and education sessions may be provided around the state to service providers and groups of women.

Consumer Advice Services

There are services available to consumers through the Department of Consumer Affairs and Fair Trading.

Often consumer issues tie in with other areas of the law, such as tenancy. Service Tasmania provides a list of websites, such as the Australian Competition and Consumer Commission (ACCC) website, where complaints can be made, or advice sought.

The Legal Profession

Overview

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.
 

The Regulatory Framework

Much of the legal system, especially the courts, depends on lawyers to make it work effectively. Public confidence in the competence and integrity of the legal profession is very important. This means that there are strict requirements for entry to the legal profession. There is also strict regulation of the way that lawyers deal with their clients and other lawyers. This is often called ‘professional ethics’. Much of this law is contained in the Legal Profession Act 2007 and the Rules of Practice 1994. The Law Society of Tasmania plays an important role in implementing the Act and Rules of Practice. Their Legal Profession Board can take complaints about a lawyer or practice.

The Law Society is the professional association of lawyers. All practising lawyers belong to it. It has extensive statutory powers to investigate the conduct of lawyers and take action against those who have erred. Any lawyer who wishes to practise must obtain a practising certificate from the Society each year. There are no compulsory continuing legal education requirements on lawyers in Tasmania, however there are voluntary events available through the Law Society to interested lawyers.

Qualifications to Practice

Lawyers practising in Tasmania must have a university law degree. Generally most students now complete combined degrees in Arts/Law, Economics/Law, Commerce/Law and Science/Law over five years. Completing a law degree in three years is notoriously difficult and labour intensive. To practise as lawyers graduates must then complete a six month ‘legal practice’ course. If this is completed in a state other than Tasmania, a would-be lawyer can apply for recognition of this training. The 12 month apprenticeship to a practising lawyer previously required after that training has been abolished.

To be admitted as a lawyer a person must be ‘a fit and proper person’. Admission as a practising lawyer involves taking oaths. These oaths are taken before a judge of the Supreme Court. Once admitted a lawyer's name is entered onto ‘the roll’ in the Supreme Court. A lawyer can be struck off the roll by the Supreme Court for serious malpractice.

A lawyer who practises without being admitted or not having a practising certificate commits offences. Lawyers must also be insured against professional negligence claims. A more detailed summary is available at the Supreme Court of Tasmania website.

 

Professional Conduct

Lawyers can advertise for business, particularly the areas of law in which they claim to specialise, though practices which are likely to bring lawyers or the legal system into ‘disrepute’ are not allowed. Lawyers must be competent in carrying out their work, complete work in a reasonable time and keep the client informed of significant developments.

Lawyers must not disclose any information to others acquired while handling the client’s work, without the client’s consent. A lawyer must disclose any interest they may have or conflict of interest. Lawyers can act for more than one person in relation to something but only if there is unlikely to be any conflict of interest. If a conflict does develop, a lawyer will be unable to continue to act for either client.

A lawyer must inform their client of any eligibility they may have for legal aid. A lawyer must also keep the legal aid agency (the Legal Aid Commission of Tasmania) informed if the client no longer has any reasonable prospect of succeeding in their case, or of any change in their financial circumstances. The client should be informed of any advice their lawyer will give the Commission.
 

Legal Profession Board

If a person has a complaint about the way a lawyer has dealt with their work they can contact the Legal Profession Board of Tasmania. The Legal Profession Board is a statutorily independent body. It is the sole body in Tasmania dealing with complaints against legal practitioners. It consists of six Board Members appointed by the Governor of Tasmania. 

Functions

The main role of the Legal Profession Board is to receive and resolve complaints about the conduct of lawyers. They can do so by:

  • Mediation
  • Intervention
  • A hearing – either to the Disciplinary Tribunal or the Supreme Court

The Board does not provide legal advice.

Complaints Against Legal Practitioners

Before the Legal Profession Board will take any action on a complaint, it will assess whether the complaint has substance. The complaint cannot be vexatious or frivolous, or misconceived. If the complaint has substance, the Board will investigate. There is no fee associated with making a complaint. There is also a set form on which a complaint must be made out. This form is available on the ‘making a complaint’ site, given above.

If the Legal Profession Board decides that a practitioner may be guilty of professional misconduct, it must prosecute the practitioner. This is done before the Disciplinary Tribunal or the Supreme Court.

Contacting the Legal Profession Board

http://www.lpbt.com.au/contact

Legal Remedies - Complaints against Lawyers

Types of Complaints

The nature of the complaint against a lawyer determines the remedy that may be obtained by the client. Complaints fall into four main categories: delay in handling work; poor quality of work; excessive fees; and incorrect handling of trust funds.

Another type of complaint is that the client has not been adequately informed of the progress of the work the lawyer is performing.

A client should not feel intimidated by the lawyer. A client has a right to know what their lawyer is doing on their behalf. It should be remembered, however, that lawyers can charge for all telephone calls and correspondence with a client, including those arising from a client’s enquiries about progress with their matter. One approach is to write a letter to the lawyer setting out specific questions about how the matter is progressing. If this approach is not successful, consideration should be given to making a complaint against the lawyer in question.

Delay

Lawyers often seem to take a long time to handle work. In some instances this is not their fault. The delay may result from other parties, government agencies or problems in getting matters heard in court because of a backlog of court cases. But there are instances where it is the lawyer who is at fault. It may be useful to raise the matter with the senior partner of the firm concerned.

Another possibility is to complain to the Legal Profession Board or the Office of Consumer Affairs and Fair Trading providing copies of the relevant papers. Where there is a serious delay causing damage or loss to the client, it may be possible to sue the lawyer for negligence.

This is particularly so with regard to court actions: in most instances there are time limits for bringing actions, providing defences or performing other stages in the court process. If these time limits are not observed, the client may lose the legal rights that they would otherwise have had.

Fees

This is a complicated area and what follows is simply the basics. Lawyers should generally explain at the outset how much a matter is going to cost, how this cost will be calculated, how often accounts will be given and any court costs scale which applies. Lawyers are obliged in court matters to provide clients with estimates of costs at periodical intervals. The Law Society has rules providing for advice to be given by lawyers to client's about costs as a matter progresses.

The Family Court also has rules about lawyers giving clients estimates of costs as matters progress. Clients can expect to receive estimates of their costs after they first see their lawyer and at periodical intervals as the matter progresses. Clients should always ask for details about costs when they first see a lawyer and if they do not receive details of cost estimates as the matter progresses then they should ask for them. If the cost estimates are not provided then the client can make a complaint with the Law Society and also, if the matter is a family law matter, with the Family Court. Often estimates will have to be revised because of factors outside a lawyer's control, but if this occurs the lawyer should keep the client advised.

Costs do not include out of pockets (often known as disbursements). Lawyers can charge for stamps, phone calls and faxes, photocopies, government charges, barrister's fees and medico-legal reports and any other out-of-pockets which are necessary or incurred with the client’s permission in the case of larger amounts. These should be shown separately on an account.

The Law Society has recommended scales in relation to many areas of law such as conveyancing and probate. Lawyers can charge a recommended scale where one is applicable and must enclose a copy of that scale with any account drawn to the scale where they do this. Lawyers can also charge a reasonable fee or make a written agreement (known as a costs agreement) with clients as to fees to be charged. Lawyers can charge less than the recommended scale though they do not generally advertise this in an obvious way. A person may have to ring around to get quotes.

A lawyer may charge a client in three main ways:

  • on the basis of the value of the item in question. This is usually the case for conveyancing and probate matters. For this work, there is a statutory scale of fees depending upon the value of the property being bought or sold, or the value of the deceased’s estate.
  • on an item-by-item basis for each item of work done by the lawyer in the handling of the client’s matter. Thus a lawyer can charge the client for the writing of letters, the reading of letters and for various items of work relating to preparation and appearing in court proceedings.
  • according to the time spent working on the matter.

A lawyer’s charges are presented to the client in a written bill of costs. The bill of costs has two parts:

  • the charge by the lawyer for doing the particular work — this is known as the lawyer’s profit costs, and are calculated by one of the three methods outlined above or a combination of them;
  • the out-of-pockets which the lawyer has to pay in the carrying out of the work on the client’s case.

Where court action has been involved, the lawyer must charge in accordance with the costs scale of the relevant court unless there is a written agreement to the contrary. The bill will usually indicate whether it is based on such a scale. The Law Society will usually advise enquirers whether the correct scale, if any, has been used.

Costs agreements can be set aside or amended by a taxing officer or arbitrator (see below) if they are unfair and unreasonable. If a person is successful with a civil claim in court (other than in the Family Court where different rules apply) they will usually get an order for costs in their favour. This order will only cover their party-to-party costs. A lawyer can claim additional costs from the client which are not covered by these costs as long as they were reasonably necessary in dealing with the case. These are known as solicitor-to-client costs. These can make up to 25% of the total costs but are usually a lesser proportion. Both sorts of costs will also include out-of-pockets.

Most civil court cases are settled by negotiation before they go to trial. Before settling a case, a lawyer must tell their client the minimum amount the client will receive if the case is settled and of the payments likely to come out of the settlement.

Settlements will usually also involve agreements as to payment of costs. Where liability is an issue, agreements that each party pay their own costs are common.

A lawyer can ask that money be deposited with the firm to cover likely legal costs and fees, and can refuse to continue to represent a person if that money is not deposited. This is known as security for costs. This money must be paid into the firm's trust account. A lawyer cannot draw amounts over $100 from the trust account or sue the person for unpaid fees without presenting an account. A client can ask in writing for an account to be itemised. The lawyer can charge for itemising larger accounts except where the itemised account turns out to be less than the original account.

If it is felt that the bill is excessive, the client can complain to the Legal Profession Board. The Board may ask the lawyer to explain how the amount was arrived at and it may indicate whether the bill seems too high. If the lawyer has calculated the cost of the services on an item by item basis, or a time basis, it may be that the lawyer will merely give an abbreviated list or description of items (without indicating the cost of each of them) and then charge a lump sum. However, the client is entitled to have the bill set out in an itemised fashion with all the costs that the lawyer is charging. This is known as getting the bill in taxable form. Although the client has a right to have the bill prepared in this form, the lawyer may arrive at a sum higher than in the original un-itemised bill.

If a client disagrees with an itemised account, either they or their lawyer can have the dispute referred to an arbitrator. An arbitrator is an independent lawyer appointed by the Law Society. If the account is under $3,000 the arbitrator 'is to mediate and settle the dispute without formality and with the least expense'. Disputes about itemised accounts can also be dealt with by a court official called a taxing officer. It is the traditional way of dealing with disputes about accounts and generally more formal and expensive. In this process, each item on the bill has to be justified to the court officer by the billing lawyer. If the lawyer has made unreasonable charges, they will be deducted from the amount the client must pay. However, unless one sixth or more of the bill is taken off (and it is possible for the officer to add to the bill), the client will have to pay an extra sum to the lawyer for their costs in having the bill taxed. This is in addition to meeting the costs of any new lawyer who has assisted the client in having the bill taxed.

Quality of Work

It is difficult for clients to judge whether lawyers have provided poor quality work. Even if the client loses an ‘open and shut’ case, that is not sufficient indication that the lawyer has been at fault. The lawyer has to be negligent before the client has a legal remedy against the lawyer.

Negligence could arise because of excessive delay which has resulted in the client losing their legal right, or the lawyer could be negligent in handling the client’s affairs by not taking certain precautions that are commonly taken by lawyers. For example, in handling a conveyancing matter, the lawyer may not have made the necessary enquiries about the property that the client wishes to buy.

As a result, the client goes ahead with the purchase and only later discovers that the land cannot be used in a way that was originally intended. What will be regarded as negligent work varies from case to case and no firm guideline can be given here. Furthermore, not only must there be negligence by the lawyer but the client must have suffered financial loss as a result of the lawyer’s work.

To determine adequately whether a lawyer has been negligent, further legal work may be needed and the client may have to seek another solicitor if they wish to sue the previous lawyer. It should be noted that all lawyers have compulsory insurance against legal actions for negligence.

Lawyers’ Remedies

Suing

If a person does not pay a lawyer’s account it becomes a debt which the lawyer can recover like any other debt. The Legal Profession Board cannot stop this from happening.

Keeping Papers

In some instances a lawyer may refuse to return a client’s papers unless the client pays the lawyer’s bill. This is known as exercising a solicitor’s lien. If a client considers that the lien is being exercised unreasonably they can complain to the Law Society, which may try to persuade the lawyer to give the papers to the client’s new lawyer. The client’s new lawyer may also be able to negotiate with the old lawyer about this.

Time Limits

If someone has a legal claim against another person, they should get legal advice about it as soon as possible. One very important reason is that most legal actions must be started within a particular period of time. Usually this will be a number of years, but in some cases the time period can be as little as 21 days as is the case for an action for unfair dismissal in the federal Industrial Relations Commission or an appeal against a decision made in the Magistrates Court. In other cases, the person must give notice of the intention to take legal action and in such cases the time limit will usually be a matter of months.

There are a number of reasons why the law imposes time limits on legal actions. The most important of these is that people should be able to conduct their business affairs, and get on with their lives generally, without the continued threat of having to deal with legal actions for things that happened many years before. Another is that the longer that legal actions are delayed, the harder it will be to get together the evidence needed to resolve them. A person’s memory of events quickly fades, documents are lost and witnesses move on or even die.

Extensions of Time Limits

Time limits are generally imposed by legislation which creates or regulates the legal action. Quite often the legislation which imposes the time limit will allow someone to seek an extension of time to take legal action where time has run out. But potential litigants should not allow this to lull them into the belief that time limits don't matter. Often applications to extend time must be made within a time limit, and in cases where no particular time limit is imposed, the longer the person leaves it, the harder it will be to get an extension.

In some cases specific grounds on which someone can seek an extension of time are set out, but generally they will need to show that there was a good reason for the delay, that the delay is not going to cause unfairness to the other party (because, for example, a vital witness has died) and that they have a reasonable case to argue.

Self-Representation

Overview

Legal Aid (assistance in getting and paying for a lawyer) is not usually granted for summary offences except where prison or other serious consequences are likely to eventuate. This means that for someone appearing in the Magistrates Court the options may be either representing themselves or paying for a private lawyer.

There are a number of ways a person can get help in representing themselves. Community Legal Services advice sessions, Legal Aid office clinics, Duty Solicitors and court volunteers are all avenues they can try.

Civil Litigation

There is detailed information on the Magistrates Court website about self-representation in civil litigation.

There are several divisions to the Civil Division itself, and the nature of the dispute will determine the division to which a potential litigant will be referred. A civil dispute concerning a tort, or a claim for damages arising from a breach of contract, will involve different procedures to a civil dispute concerning a breach of the Residential Tenancy agreement.

When a person wishes to initiate a civil dispute, thus becoming the claimant, the Civil Division will provide a litigant pack which includes information and copies of Form 1: Claim. This form is the form used to begin a civil dispute. Conciliation conferences are a mandated part of the civil litigation process. It is part of the Case Management process at the Magistrates Court to minimise court time and also the expenses of the parties. There is more detailed information on the civil litigation process and what is likely to happen during your civil litigation process at the Magistrates Court website.

The Magistrates Court has a statement about what kind of advice they can provide. They state that the mission of the court is to serve the community by providing access to an accountable independent and impartial system of justice administered according to law. The court is happy to help you if it can. However, it must be fair to everyone so there is a limit to what a magistrate or court representatives can say or do.  The Magistrates Court website provides the following information:

  • We can provide you with a list of local lawyers or the telephone number of the Law Society of Tasmania’s referral service.
  • We can explain and answer questions about how the court works.
  • We can give you general information about Court rules, procedures and practices
  • We can provide Court schedules and information on how to get a case listed.
  • We can give you information from your Court file.
  • We can give you samples of Court forms that are available.
  • We can usually answer questions about Court deadlines and how to work them out.
  • We cannot tell you whether or not you should bring your case to court.
  • We cannot tell you what words to use in your Court papers.  However, we will check your papers for compliance, e.g. signatures, correct Court location, correct case number.
  • We cannot tell you what to say in Court.
  • We cannot give you an opinion about what will happen if you bring your case to Court.
  • We cannot talk to the Magistrate for you.
  • We cannot let you talk to the Magistrate outside of Court.
  • We cannot change an order made or signed by a Magistrate.

Preparing a Case

Organisations such as Community Legal Services or the Legal Aid Office may have educational material that will help the person prepare their case.

If the person wants to plead ‘not guilty’ they may first want to talk to one of these organisations in case it is possible for them to negotiate with the police prosecutor – if they are willing to plead ‘guilty’ to a lesser charge.

If the person is disputing the facts and has witnesses, they will need to organise these witnesses to appear. They need to be waiting outside the court when the person calls for them. If they can’t come, a second-best option may be to get them to sign a Statutory Declaration in front of a JP. Seek assistance from one of the organisations already mentioned as to the kind of detail that should be contained in a Statutory Declaration.

Speaking to a court is not much different to public speaking generally and there will be material on public speaking at a local library. Some people like to prepare everything they will say, write it down, or summarise it on cards. Trying out on other people what they intend to say may be useful and may make them less nervous on the day.

Nerves are always a problem. Even lawyers get nervous. Material on public speaking will often contain sections on the best way of overcoming nerves.

Magistrates will sometimes help unrepresented defendants who are running their own case, in the interests of fairness. If the magistrate suggests something to the person, it will usually be in their best interests to follow that advice.

The person should pay attention to their appearance. Be neat and clean. Conservative clothes are best.

Don’t rush. Stay calm. The person also needs to take on board the fact that they may lose. They will need to prepare material for their plea of mitigation in the event of losing.

What Happens in the Case Itself

Step One:  The Complaint and Getting the Court Date

Persons who are charged with offences are called defendants. Defendants appear in court as the result of answering a summons, answering bail or being remanded in custody and being brought before a court. The initial process is as follows:

  • A summons is sent to the person at their last known address – for example, if a person is called to appear for a relatively minor charge, they will be asked to provide their address, and sent a letter giving them a court date and time for appearance to answer the complaint/charge against them.
  • The person will have been released on bail (this is usually for a more serious offence), and a date and time for appearance before the court will be provided to them.
  • The person will have been remanded in custody (for the most serious offences or for people who have previously breached bail), and a date and time for appearance before the court will be provided to them.

The time period that elapses from the date of the charge or complaint to the date of the first appearance will vary. Where a person is remanded in custody the time period will be shorter. During that time, the detained person can apply for bail at any time. Any person granted police or court bail can apply (at any time) to the court for a variation of that bail.

Getting Bail
 

If a person is being held in custody they have the right to make a bail application. See the section above on ‘Bail’. A Duty Solicitor may assist them.

Before the case comes up

It is a good idea, if there is time, for a defendant to go down and sit in on a session at the Magistrates Court. A person can find out from court staff if there are any cases coming on that are similar to theirs and go and sit in the back of the court and watch what happens.

If the person wants to plead ‘guilty’ but wants to know the best way to go about it, they can sit in on some cases where the defendant is pleading guilty and see what sort of things they present as ‘pleas of mitigation’. This is important when preparing their case (see below).

If they want to plead ‘not guilty’ they can sit in on a defended hearing. They will see how the prosecutor and the defendant or their lawyer asks questions of witnesses. They will also get an idea of the role of the magistrate in such a situation and the way that the case is run.

 

Step Two: Disclosure

Obtaining Preliminary Disclosure

Disclosure is where the prosecution or police give documents or information on evidence to the defendant. With self-representation it is important to get preliminary disclosure. Preliminary disclosure involves no fee, but you must write to the police to obtain disclosure. Preliminary disclosure requests should ask for:

  • The complaint;
  • Facts for the prosecutor;
  • Relevant prior convictions;
  • Statements made by the defendant (sometimes in electronic format, such as a DVD or sound recording)

This information will give the defendant information on the nature of the complaint made against them. A defendant should draft a letter that is polite and provides their full name, their date of birth, the complaint number and a return address to which the Disclosure Officer can send documents. There is no fee associated with initial disclosure.

Obtaining Full Disclosure

If a defendant intends to plead not guilty, it is wise to obtain full disclosure from the police. In a request for full disclosure the defendant should ask for:

  • The full police brief of the case
  • Witness statements
  • Witness proofs – such as documents
  • Police reports
  • Police statements
  • Police proofs – such as documents (but not photographs)

Full disclosure carries a fee of $53.90. This is liable to change without notice. Again, include your full name, a return address, your date of birth, and the complaint number. If you decide to have legal aid at some point along your trial, Legal Aid can obtain full disclosure without a fee.

Who to contact

Document Disclosure Officer
Southern Regional Prosecution Services
Level 3M
43 Liverpool Street
Hobart, Tasmania 7000

Email: Southern.Prosecution.Disclosure@police.tas.gov.au
Phone: (03) 6230 2458

Email: Prosecution.Services.North@police.tas.gov.au
Phone: (03) 6336 3863

Email: prosecution.services.west@police.tas.gov.au
Phone: (03) 6429 8625

 

Step Three:  First Appearance

At the first appearance there are three things that can happen:

  1. The case will be adjourned to a later date for the person to prepare their plea of either guilty or not guilty. The defendant is entitled to an adjournment without plea and does not have to justify any adjournment.
  2. The defendant will plead guilty
  3. The defendant will plead not-guilty

Each of these steps entails different steps afterwards.

1. Adjournment

A new date will be set for the appearance in court, usually in about 6 weeks time. This means that at the next appearance, the defendant should be in a position to have considered their position, seek legal advice if necessary and to plead either guilty or not guilty. A first adjournment is a right, and will usually be granted.

2. Pleading Guilty

If a defendant pleads guilty there are two things that can happen. The facts and sentence may be finalised then and there, or the magistrate may order an adjournment to finalise the facts and sentence at a later date. See the pleading guilty section.

A defendant can plead guilty at any stage or be found guilty after a hearing. If a defendant pleads guilty the process can involve either the facts and sentence being finalised on the day, or the finalisation of facts and sentence will be adjourned until a later date. The process is as follows:

Facts and sentence of the guilty plea finalised on the day

Where a defendant has pleaded guilty, the facts of the charge against the defendant will be read out by the police who are referred to as the prosecution. For example: on 24th September 2011, at 7.01pm Greg Griggs was caught driving at 70km/h in a 50km zone. If the defendant agrees with these facts the sentence will be finalised. A sentence can be a fine, an order for community service, or a period of imprisonment, amongst other options.

The simpler the sentence – such as a fine for drink driving, and a period of licence suspension, the more likely that a magistrate will pass sentence at that appearance. There are complicating factors that can occur even at this stage such as a person indicating a plea of guilty but makes an application for a restricted licence in which case the whole process may be adjourned for another day. Similarly, the magistrate may require a pre-sentence report to get additional information.

What if the defendant pleads guilty to an offence but did not know they were committing an offence?

A defendant has a chance to speak for themselves before a sentence is passed. This is called a plea in mitigation. A defendant is not required to speak on their own behalf at this point, but they may do so. For example, a defendant may wish to tell the court why they were speeding in their car, and point out their good record or their need for a car so that the court can consider a lesser penalty.

However, if a defendant when speaking for themselves mentions that they did not know at the time that they were committing an offence, this may amount to a plea of not guilty. This is not the case all the time. Ignorance of the law is no excuse. Ignorance of certain facts may be important. For example, if a defendant says ‘ I accept that I was driving on a suspended licence now, but I did not know that my licence was suspended’, this indicates that they did not have the intention of driving with a suspended licence because they did not know their licence was suspended.

An intention – an awareness that the licence was suspended, is part of the charge of driving with a suspended licence. The magistrate will then replace the plea of guilty with a directed plea of not guilty, and a new court date will be set for a hearing. It is a duty of a magistrate to ensure that a defendant does not enter a plea of guilty if that plea is inconsistent with the facts as stated by either the prosecution or the defendant and if the defendant insists that they are guilty but gives a version inconsistent with guilt, the magistrate will enter a directed plea of not guilty. In many cases of shoplifting, the defendant will say ‘I didn’t mean to take the items but I want to get the matter over with today.’ If the defendant persists with this stance the magistrate will direct a plea of not guilty and list for hearing.

Sentence adjourned until a later date: facts and sentence finalised at a later date

Where the court adjourns to finalise facts and the sentence the time periods involved can be between one and three months. The court will adjourn where a sentence will be complicated, or there are other factors involved. These factors can include the court seeking a report to ascertain eligibility for Community Service Orders or Probation Orders.

A report may be necessary where the defendant has substance abuse issues and may qualify for court ordered drug diversion programs, where the defendant is a youth, where the defendant has mental health problems, or where a pre-sentence report is necessary. Reports take 4-6 weeks to be prepared, the defence and the court receive copies of the report/s.

If a person has been in custody and receives a prison sentence then a court will usually backdate the sentence to the beginning of the person’s period in custody. This means that any time the defendant has already spent in custody will count toward the sentence.

3. Pleading Not Guilty

If a defendant pleads not guilty then the matter may be adjourned for ‘mention’ to make sure that the defendant maintains the plea of not guilty and to ensure that everything is prepared for the eventual hearing. If the matter is not complex, the court may skip this step and list the matter directly for a hearing (see Pleading Not Guilty). Because any plea of not guilty has to be investigated carefully, courts cannot deal with a plea of not guilty on a first appearance in court.

Pleading not guilty:  A Typical Case

Note that a defendant can plead guilty at any time, even after the hearing has commenced. If a matter has been listed for hearing and you make a decision to plead guilty, the court and the prosecution should be advised so that the court can list other matters that day and the prosecution can advise their witnesses that they are not required to attend court.

If a matter is set down for hearing (you have plead not guilty) and you need an adjournment to delay the hearing, you can contact the prosecution who in appropriate circumstances (such as your hospitalisation) may consent to an adjournment. You should also advise the court.

A magistrate will require very good reasons for adjourning a hearing (particularly on short notice) if the matter is unable to proceed on the allocated day.

At the hearing it is the prosecution’s task to present the case against the defendant. The prosecution has to prove the elements of the offence ‘beyond reasonable doubt’.

The magistrate’s task is to adjudicate the case and ultimately to determine whether the prosecution has established the case against the defendant. The magistrate will attempt to safeguard the interests of a defendant to some extent but there is a limit to what the magistrate can do as the magistrate must remain impartial.

Consider the witnesses you would call, ascertain their availability and arrange for them to attend court. If a witness is necessary but unwilling to attend court for you then the police may call them, or you may have to summons the witness. Court staff can help you with the paperwork for this.

Prepare your questions for the police witnesses. You know what witnesses the police will call as a result of the earlier disclosure of the police case. There is no point trying to conduct your own cross examination without preparation. Even experienced lawyers prepare their client’s case in advance.

Your questions should be relevant and adequately put your case to the prosecution witnesses. If you disagree with any aspect of a witness’ testimony, make sure that everyone knows with which aspects you disagree and ask all necessary questions needed to undermine the credibility of that witness.

If you have any legal submissions to make prepare them in a written form to assist you when needed.

 

Step Four: Second and Subsequent Appearances

After the first appearance, the defendant can appear a number of times before a plea of guilty or not guilty is entered. Generally however, the magistrate will require a reason for further adjournments and will become increasingly unwilling to adjourn the matter without a plea being entered. As a final resort the magistrate may enter a directed plea of not guilty and set the matter down for a hearing. A magistrate cannot force a defendant to plead guilty.

Subject to the above comments, second and subsequent appearances proceed in the same way as a first appearance.

 

Step Five: Process

Case Summary

The prosecution gives the magistrate a short summary of the case and a summary of the prosecution evidence and perhaps mentions any legal issues.

Prosecution Witnesses and Evidence

Prosecution calls witnesses and puts into evidence relevant documents. Each witness gives evidence (examination in chief) and is asked questions by the defendant (cross examination). The prosecution is then asked if it wishes to ask further questions of the witness to clean up any ambiguities arising out of the cross examination (re-examination).

If a witness has any other evidence that they have brought to court with them (such as receipts for payment, photographs they have taken, plans or letters from government departments), they can produce these during their evidence in chief so they can be ‘tendered’ to the court. This procedure is repeated for each of the prosecution witnesses. 

It is important that the defendant questions the prosecution witness if the defendant challenges the evidence of that witness. If the evidence of a witness is unchallenged, the magistrate is likely to accept that unchallenged evidence. In some cases, identity of the driver may not be in dispute. In such a case it would be unnecessary to ask the police witness who was driving your car but if you were challenging the speed at which that witness alleges you were travelling, you should put questions to that witness that challenge his evidence and how that witness reached the conclusion as to your speed. If, on the other hand, you deny driving the vehicle in question, you should directly ask the police witness as to how he identified you as the driver, the nature and time of his viewing of you and other matters which may affect that witness’ credibility.

No case to answer submission

At the end of the police case, the defendant may submit to the magistrate that the defendant does not have a case to answer. This is an assertion that the police case taken at its highest is insufficient to prove all the elements of the offence. A magistrate will generally be alert, without your submission, to whether or not a case sufficient to answer has been established and if the magistrate, with or without your submission, finds there is no case to answer the complaint will be dismissed.

A case to answer

If there is a case to answer, the defendant may call evidence (including himself) in support of his case. You do not have to produce any documents, you can just give evidence’ by telling the court your version of events. It is not necessary for the defendant to call evidence. If the defendant considers that the case against him will not satisfy the court beyond reasonable doubt and the defendant’s witnesses will not assist he may choose not to call any witnesses. Of course in such situations the magistrate will not have any advantage gained by hearing from the defendant and the defendant’s witnesses.

Defence Witnesses and Evidence 

If the defendant calls witnesses, the defendant still does not have to give evidence himself. The defence case proceeds in the same way as the prosecution case but the defendant conducts the examination in chief and the re-examination, while the prosecution will cross examine.

Addressing the Court

At the conclusion of the case, both the prosecution and the defendant may address the court as to the evidence and / or the law.

Decision of the Court

If the magistrate decides in the defendant’s favour, the complaint is dismissed. If the magistrate decides in the prosecution’s favour, the magistrate will then proceed as if there was a plea of guilty. At this stage, the magistrate will be shown the defendant’s record of convictions for the first time.

 

Step Six:  The Plea in Mitigation

After a statement of fact by the prosecutor on a finding of guilt the defendant has the opportunity to address the court by way of a plea in mitigation. A defendant should prepare for the plea. It would be prudent to have notes which set out the reasons for committing the offence and which detail the personal circumstances of the defendant.

The object of a plea in mitigation is to put the defendant’s offending and personal circumstances in the best light so that the magistrate gives a sentence less than they might otherwise give.

Relevant matters that should be addressed are as follows:

  • Why you committed the offence;
  • How you have addressed the offending (i.e. you have enrolled in an anger management class, seen a counsellor or sold your vehicle);
  • What (if anything) you have done to remedy the offending (such as paying for the broken window or the stolen goods);
  • Education and work history and how a conviction might affect you, for example a conviction for use of cannabis would result in you losing your employment;
  • Personal and family details, for example you have a dependant wife and 4 young children or you are on an invalid pension with limited income;
  • Financial particulars;
  • References.

Many defendants find court daunting, particularly if the court is crowded and the press is present. In these circumstances, it is entirely acceptable to give a written statement to the magistrate which presents your plea in mitigation. A copy should also be provided for the prosecution.

If you have a reference from employers (both former and present) or friends who are prepared to say something positive about you, such references can be given to the magistrate.

If the reference is provided to show that you are generally of a good character it is important that the person giving the reference on your behalf states at the beginning of the reference their knowledge of the reason you are appearing in court. A reference given in the knowledge that it will be used in court conveys more weight than a general reference.

 

Factors to Take Into Account in Self-Representation

Everybody can weigh up the pros and cons of self-representation. Are you likely to go to jail? Is this a first and minor offence? What will be the impact of this on your life? Factors that need to be taken into account when deciding whether to self-represent include:

  • The charge: is it a minor offence or a major offence?
  • Consequences – such as imprisonment, fines, disqualification from driving
  • Your circumstances – your type of employment
  • Your needs – will a guilty verdict impact on your life in a negative way?

Example

If you are charged with the offence of ‘causing death by negligent driving’ it is reasonable to consider that a term of imprisonment could well be imposed even if you have an unblemished record and that the engagement of a lawyer is necessary and you should engage a lawyer. First offences are not always minor offences.

If, on the other hand, you are a tradesperson or a public servant in full time employment and you are charged with exceeding the blood alcohol limit of 0.05, namely 0.07 and have an otherwise long unblemished record you may not choose legal representation. If you are a public servant you may choose to be self-represented as 3 months disqualification from driving and $260 fine (or thereabouts) may not significantly affect you. If you are a tradesperson you may choose a lawyer to represent you because of your reliance on your license for work, and it is important to minimise the period of disqualification and obtain a Restricted Licence for that reason. Although obtaining legal representation does not guarantee that you will receive the minimum period of disqualification and/or a Restricted Licence, the expense of engaging a lawyer may be seen as justified expense.

The following sections explain the process in the event that you choose to represent yourself in the magistrates’ court.

Checklist for Self-Representation

1. Obtain a copy of all charges against you

2. Consider whether or not you intend to (a) plead guilty or (b) not guilty

Do you you wish to represent yourself? Seek legal advice if necessary to assist you to make that decision. Free legal clinics are available at Legal Aid and community legal services to assist you with these decisions).

3. If you have decided to plead guilty at an early stage

Prepare your plea in mitigation together with any relevant references. Check with prosecution that your record of convictions is as you recall. Plead guilty and give your plea in mitigation.

4. If the matter is more complicated

If you are not sure whether to plead guilty or not guilty), appear in court and seek an adjournment. Following the adjournment, write to police to advise them that you are acting for yourself and require full disclosure by the police of the case against you together with your police record. Once you have that information you can consider whether or not to (a) plead guilty or (b) not guilty and whether you wish to represent yourself in court. You can seek legal advice for the purpose of making that decision and you will have all necessary documents to assist you to make the decision.

5. If you decide to represent yourself and plead guilty

Prepare your plea in mitigation.

6. If you decide to represent yourself and plead not guilty

You enter a plea of not guilty at your next appearance in court and you will be allocated a hearing date.

7. Prepare for the hearing

Consider what witnesses to call, ascertain their availability and arrange for them to attend court. If a witness is necessary but unwilling to attend court for you then the police may call them, or you may have to summons the witness. Court staff can help you with the paperwork for this.

Prepare your questions for the police witnesses. You know what witnesses the police will call as a result of the earlier disclosure of the police case. There is no point trying to conduct your own cross examination without preparation. Even experienced lawyers prepare their client’s case in advance. Your questions should be relevant and adequately put your case to the prosecution witnesses. If you disagree with any aspect of a witness’ testimony, make sure that everyone knows with which aspects you disagree and ask all necessary questions needed to undermine the credibility of that witness.

If you have any legal submissions to make prepare them in a written form to assist you when needed.

8. Prepare your plea in mitigation

Despite your brilliant advocacy you may still be convicted and will then need to give a plea in mitigation immediately following the hearing.

Self Representation in the Federal Circuit Court and Family Court

Family Court and Federal Circuit Court – What’s the Difference?

There is some overlap in the area of family law between the Family Court and the Federal Circuit Court. Both have jurisdiction over family law, and both focus on alternative dispute resolution methods for resolving legal disputes. Both the Family Court and the Federal Circuit Court stress dispute resolution alternatives to litigation. Both courts have jurisdiction over both marriage and de facto relationships. Both courts also provide e-filing for divorce, initiating applications and response to initiating applications.

Family Court – Exclusive Jurisdiction

The Family Court has exclusive jurisdiction over the validity of marriages and divorces, and adoption. It is also the court which deals with more difficult issues of family law, such as:

  • international child abduction
  • international relocation
  • special medical procedures
  • serious allegations of sexual abuse of a child
  • serious allegations of physical abuse of a child

The Family Court also hears disputes over whether a case should be heard in Australia, and also complex questions of jurisdiction and law. The Federal Circuit Court will deal with many of the smaller scale issues in family law.

There is a large body of publications available on the Family Court website concerning all aspects of the Family Court process.

Federal Circuit Court and Family Court: Overlap

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker.

Whilst both the Family and Circuit courts deal with normal family law issues such as divorce, separation, maintenance, and child support, the Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, as noted above, and so the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes
  • Spousal and de facto maintenance
  • Property disputes
  • Divorce
  • Contravention applications (alleging a breach of a court order)
  • Enforcement of orders made by either the Federal Circuit Court or Family Court
  • Location and recovery orders as well as warrants for the apprehension or detention of a child
  • Determination of parentage and recovery of child bearing expenses
  • Applications for injunctions
  • Superannuation (which can now be considered property in a divorce or separation)

For self-representing parties, forms for some of the above listed areas are available.

The Family Law Court website also provides information on the court processes, forms, and costs associated with going to court over a family dispute.

Both courts encourages parties to settle matters between themselves before proceeding to court. Sometimes this may not be possible, and court is the only option. You will find that once you access the Family Law Court website or the Federal Circuit Court website there is a great deal of connection between the two because of their joint jurisdiction.

How and when you can begin certain proceedings is discussed in the Family Law section of this website. For more information on family law in general go to the Family Law section.

 

Legal Advice or Self-Representation?

The Federal Circuit Court stresses speed, efficiency and cost effectiveness in their resolution of disputes. For this reason, the court website is accessible, and provides means of self-representation for parties to a family law dispute. If the ‘dispute’ is merely an amicable divorce, or involves an agreement between amicable parties, legal advice may only be necessary for the paperwork involved in property division or settling means of paying maintenance.

It is always important to seek legal advice where matters are hostile or unsettled between parties. This includes situations where one party is seeking a divorce but the other party is resistant. Other examples could include where the custody of a child or children is disputed, or where one party is not willing to pay maintenance or divide property. Issues like these will often end up before the courts. There is compulsory dispute resolution, but continued hostility and an unwillingness of one or both parties to agree will result in the matter being heard in court, and the need for legal representation.

If the two parties are amicable, and have settled relationship and financial matters between themselves, self-representation is an appealing option.

It is your choice to self-represent, but where matters between married parties are not amicable or settled, legal advice is the wisest choice. Legal Aid is available to some people, and Legal Aid provides Duty Solicitors at the Federal Circuit Court.

 

What you can do in the Federal Circuit Court

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker. The Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes;
  • Spousal and de facto maintenance;
  • Property disputes;
  • Divorce;
  • Contravention applications (alleging a breach of a court order);
  • Enforcement of orders made by either the Federal Circuit Court or Family Court;
  • Location and recovery orders as well as warrants for the apprehension or detention of a child;
  • Determination of parentage and recovery of child bearing expenses;
  • Applications for injunctions;
  • Superannuation (which can now be considered property in a divorce or separation);

For self-representing parties, forms for some of the above listed areas are available at the Federal Circuit Court website, however some of these matters are best dealt with by lawyers, as the matters to be resolved may be complicated and require paperwork that is difficult to manage.

While the court encourages parties to settle matters between themselves before proceeding to court this may not always be possible, and court will be the only option, in which case, it is important to seek legal advice.

Separation and Divorce

Applying for a divorce where the split is amicable, or at least mutually desired, can be quite simple. A joint application where there are no children under the age of 18 years requires very little effort from the two parties. However, there are steps that must be followed.

The Federal Circuit Court (FCC) provides information on divorce, and links to the Family Court page that provides a step-by-step guide to applying for a divorce. Parties must:

  1. Complete an application for divorce. Application for Divorce Kits are available.
  2. Sign the application before a lawyer, Justice of the Peace, or other authorised person
  3. Make two photocopies of the completed and signed Application, plus any supporting documents
  4. File the original and two copies of the Application, plus a copy of your marriage certificate with the FCC
  5. Receive a hearing date and documents
  6. Serve papers on your spouse
  7. Attend the hearing. You need not attend if there is no child under the age of 18, or if there is such a child, you needn’t attend if the divorce application was a joint application. If there is a child under the age of 18 and the application was made by you alone, you must attend the court hearing.
  8. Receive the outcome of the hearing

Property and Maintenance

Property

If parties can agree on property settlement, the process in the FCC is much smoother. It will often involve legal advice, particularly if the property settlement requires sale of real estate or assets. If parties can’t agree, the courts will intervene, but if the parties can agree, they are empowered to make enforceable private agreements, which the courts will then make orders on.

For example, Bob and Jenny decide to divorce. It is an amicable split, they have no children, they have already agreed on what personal items they will keep. Bob and Jenny have agreed that Jenny can have the residential house and Bob can keep the holiday house on Bruny Island. They can make an agreement to this effect, and then seek consent orders from the FCC. They do this by filing an ‘Application for Consent Orders’ form.

If the matter is not so simple, legal advice and representation will be necessary.

Maintenance

Parties to a marriage can make agreements on maintenance. These are called ‘Maintenance Agreements’. There are two types of agreement that can be made: Section 86 and Section 87 Agreements. Section 86 Agreements need only be registered with the Court. It must be accompanied by an affidavit from one of the parties swearing to both parties having signed the original agreement. The agreement must be witnessed by a justice of the peace or a lawyer. A Section 86 Agreement can be contested or varied at a later date, as it is not a final agreement.

Section 87 Agreements are much more formal, as they substitute any claims for maintenance that can be made in the future. They constitute a final agreement between the parties. For this reason, approval must be sought from the FCC. The court will look at whether the agreement is fair between the parties. For this, it is recommended that legal advice be sought.

Section 86 and Section 87 agreements can also cover property settlements.

Child Support and Custody of Children

Child support is dealt with by the Child Support Agency (CSA), a federal government body. Child support is not a matter for the courts unless enforcement is required. The FCC can issue a court order to ensure payment. Non-payment of court ordered child support can be contempt of court and result in imprisonment for the non-paying party. Usually, child support issues before the court will be a matter of last resort, after the CSA has exhausted all other remedies.

The FCC has compulsory dispute resolution sessions for parents to reach agreement concerning their children. Informal and consensual agreements are encouraged. Written agreements called ‘Parenting Plans’ detail the continued care of children after separation. A parenting plan, arising from dispute resolution sessions is enforceable like a court issued parenting order.

Obviously, if there is acrimony and disagreement between the parties, legal advice should be sought. However, it is important that parents bear in mind the best interests of their children, and as the court has compulsory dispute resolution, it is possible to make applications without legal advice, to register or reach an agreement on parenting. This is particularly desirable where both parties are already agreed. The parties or a party can lodge an application for consent orders.

The court can vary parenting orders if issues arise. If sexual abuse is involved, the matter will go to the Family Court rather than the FCC. In situations like this it is imperative to seek legal advice.

Legal Glossary

GLOSSARY OF LEGAL TERMS

These are some of the terms used in the course of this chapter and the rest of the Tasmanian Law Handbook. Anyone who is going to take a more than cursory interest in the law would be advised to invest in a good law dictionary. Terms which are defined elsewhere in the glossary will be shown in bold type.

Aa

Abate  To reduce something. For example, to abate a nuisance (rubbish or noise) is to remove or reduce the nuisance without violence or unnecessary damage. This is an alternative to the bringing of a court action.

Abrogate  To repeal, cancel or annul.

Acquit  To find an accused “not guilty” after trial.

Adjourn  To suspend a court hearing to a future specified day or indefinitely.

Affidavit  A written statement sworn on oath or affirmation before a person with authority to administer it. The person in whose name the document is sworn is called the deponent. Affidavits must contain only facts which the deponent can prove. Generally, affidavits are required in court proceedings in place of Statutory Declarations.

Affiliation order  A Magistrate’s order which requires the putative father of a child to pay maintenance to the mother for the support of the child.

Affirmation  A statement that something is true, which may be made in place of an oath, if an oath is contrary to a person’s religious belief or if the person has no religious belief.

Agent  A person who acts on behalf of another, called the principal. The principal may authorise the agent to enter into a contract and the agent acquires rights or incurs obligations on the principal’s behalf. An agent’s act, done within the scope of his or her authority, binds the principal.

Aggravated damages  Damages which are awarded beyond normal damages to compensate the plaintiff for having their honour or dignity offended.

Ancillary relief  In family law, orders relating to parenting orders, maintenance, and for property of the parties as opposed to the actual divorce or dissolution of marriage, which is called principal relief.

Annexure  Any supplementary material added to an original document, usually sworn such as an affidavit.

Annuity  A sum of money payable yearly, usually out of money invested for that purposes such as superannuation funds.

Annul  To declare void in law. For example, when a marriage is annulled, the court is saying that it never was a marriage in law.

Appeal  To take a case to a higher court in order to rectify an incorrect decision.

Appellant  A person who appeals a decision of a court or tribunal.

Appearance  A document filed in a court announcing that a person will be a party to a court action started by someone else. Also the announcement in court by a lawyer that they represent a party in court.

Arbitration  A procedure for resolving disputes which involve less formality than a court hearing.

Arrest  To apprehend or take into custody a person suspected of having committed a crime.
attachment  A court order that a sum of money is paid, usually out of the proceeds of sale of a particular item of property, because of a breach of an undertaking.

Attestation clause  A witnessing clause, especially in a will. The attestation clause states that the witnesses saw the testator sign and that they signed in the presence of the testator and each other.

Author The human creator of an original work, not necessarily written.

Award  The decision of an arbitrator, for example, in industrial arbitration proceedings. Once it is made it has the force of law and can be enforced in the same way as a court order or judgment.

Bb

Bail  An accused person is given bail when they are allowed to go free whilst awaiting a court hearing. Sometimes they must have a surety, or the accused may simply promise (enter into a recognisance) to appear in court. Failure to appear is an offence. Bail may be on condition.

Bailiff  A court officer employed to do such things as serve documents and carry out court orders.

Bailment  A delivery of goods from one person who owns them (the bailor) to another (the bailee) for some purpose, on an express or implied condition that the goods will be re-delivered to the bailor when that purpose has been fulfilled. For example, delivering clothes to a dry-cleaner creates a bailment. Bailment may be implied from the behaviour of the parties, but a bailment may exist with no underlying agreement at all.

Balance of probabilities  The standard of proof needed to determine a civil case, that what is alleged is more likely than not to have happened. This standard is less than the standard for a criminal action.

Bankruptcy  A procedure under which most of a debtor’s property is taken over and distributed amongst their creditors.

Beneficiary  A person who is left something in a will or a person for whose benefit property is held by trustees or executors.

Bequeath  To make a gift of personal property in a will.

Beyond reasonable doubt  The standard of proof that a jury must be satisfied with before they convict a defendant in a criminal trial.

Bill of exchange  A negotiable instrument in which the drawer orders the drawee to pay a sum of money on a specified date to either the drawee or a third person (the payee).

Bill of sale  A transfer of ownership of goods, usually as security for a loan. Possession remains unchanged.

Bona fide  In good faith, honestly.

Bond  In criminal cases the defendant may enter into a bond to be of good behaviour or a deed under seal in which a person (the obligor) binds themselves to do or to refrain from doing certain things (sometimes referred to as a recognisance).

Burden (or onus) of proof  In criminal cases, the prosecution bears the burden of proof. In civil cases, it is on the plaintiff. Sometimes the burden shifts, for example, if the defendant wants to set up a particular defence.

Cc

Care order  An order made by the Family Court or Magistrates Court which gives day-to-day parental responsibility to the residence provider.

Caveat  A notice given to an appropriate officer ordering him or her not to take a certain step until the person giving the notice (the caveator) has been given an opportunity to object (for example, to a transfer of land).

Caveat emptor  Let the buyer beware. At common law where a buyer of goods had no warranty for them they took the risk as to quality and had no remedy against the seller unless there was fraud. Legislation such as the Fair Trading Act and Trade Practices Act has now restricted greatly the extent to which a buyer is without a remedy.

Certificate of title  A document prepared by the Lands Titles Office which shows details of land registered under the Torrens system, particulars of the location, encumbrances and owners.

Charge/complaint  A form of security for the payment of a debt or the performance of an obligation. In criminal law, the allegation that a person has committed an offence.

Chattel  Any property that is not freehold land or real estate. The property may be a leasehold (then called a "chattel real") or a moveable article of property (chattel personal).

Citizen's arrest  An arrest made by any person other than a police officer.

Civil law  Law which is not criminal, for example, law relating to contracts, negligence and nuisance. Civil cases are generally taken by individuals to recover damages or a debt. Throughout this Handbook Series civil law means non-criminal law.

Civil remedies provision: a provision of the Fair Work Act (Cth) 2009 that allows a complainant to seek compensation or orders against an employer through civil litigation.

Codicil  A document signed by a willmaker which alters or adds to their will.

Collateral contract  A separate contract which precedes or exists alongside the main one.

Committal proceedings  Where a Magistrate’s Court hears evidence on an indictable offence and decides whether the accused should be sent for trial.

Common law  The part of Australian law traditionally based on the decisions of judges in court rather than Acts of Parliament. Another meaning is law which is not equity, statute or ecclesiastical (church).

Complainant  A person who begins a prosecution against another in the Magistrate's Court; a plaintiff; the victim of a crime.

Complaint  a formal allegation that a person has committed an offence, usually a minor offence. Complaints are usually in writing.

Condition  An important term in a contract, the remedy for breach of which is termination of the contract.

Consideration  The price paid for the promise of the other party in a contract.

Contact  The time the child spends with or communicates with the parent they do not live with. Formerly called access.
contempt of court  The failure to obey a court order or an act which shows a disregard for the authority of the court or judge. A person in contempt may face imprisonment.

Contract  A legally enforceable agreement.

Contributory negligence  A partial defence in an action for damages for injuries arising from the defendant’s negligence. The defendant attempts to prove that the plaintiff’s own negligence caused or contributed to the injuries suffered.

Corroboration  Independent evidence which supports the main evidence.
Counterclaim  Where the defendant has an independent claim against the plaintiff, they may raise it in the existing action by adding a statement of the facts on which the claim is made to the statement of defence.

Covenant  An agreement creating an obligation contained in a deed. A covenant may serve the same purpose as a bond.

Creditor  A person to whom a debt is owing.

Criminal Code  An Act of Parliament which embodies the law relating to crime in Tasmania.

Dd

Damages  The amount of money ordered by a judge to be paid by one party to another in a civil case.

Decree absolute  The final order in divorce proceedings.
Decree nisi  A provisional order made by a Family Court judge which terminates the marriage. However neither party can remarry until the decree absolute which is usually one month after the decree nisi is pronounced.

Deed  A written document which is signed, sealed and delivered.

Deemed  To be treated as if.

De facto  “In reality”. For example, a de facto wife is one in reality but not in law.

Defamation  The publication of a false and derogatory statement without a lawful excuse.

Default  To fail in some duty.

Default judgment  Means by which a judgment is entered where the debtor/defendant has failed to enter a defence.

Default summons  A summons which alleges that the debtor/defendant has failed to pay money due and owing.

Defence  A document filed in a court in a civil case setting out the facts on which a defendant relies in opposing a claim.

Defendant  Person against whom legal action is being taken.

Deponent  One who swears or affirms an affidavit.

Devise  A gift of real estate in a will.

Disbursement  Money paid out on behalf of another. In solicitor’s bills it is for such things as filing a form or photocopying. Commonly called ‘out-of-pockets’.

Discharge  To perform or be released from an obligation. A debt is discharged when it is paid.

Disclaimer clause  A clause which renounces a legal claim. An executor may disclaim their position before probate.

Discovery  A procedure by which documents relevant to a civil action are exchanged between the parties before the case comes on for hearing.

Dissolution of marriage  Term used for divorce under the Family Law Act.

Domicile  The place where a person has their legal home. It is the place which determines the legal system relevant to that person. For example, someone domiciled in Tasmania is subject to Tasmania laws.

Double jeopardy  The situation in which a person may be punished twice for the same offence.

Duress  Coercion or excessive pressure on a person to do some act.

Duty of care  The legal obligation to avoid causing damage or loss which could have been reasonably foreseen.

Ee

Easement usually found on a Certificate of Title. A right enjoyed by a person in relation to the land of another person. Such a right co-exists with the rights of the land owner, but interferes with the normal rights of that owner.

Ejectment  An action for the recovery of land.

Encumbrance  A charge or liability, for example, a mortgage.

Endorse  To write on a document such at the back of a cheque.

Equitable interest  Interest in property which is created and enforced where it would be against conscience (moral obligation) to permit the legal owner to keep the benefit of the property for themselves.

Equity  Fairness. A system of legal rules developed by the Lord Chancellor and Courts of Chancery in England to modify the harshness of the common law. Tasmania has equitable jurisdiction. Also the extent of a person’s interest in property.

Estate  The property of a deceased person.

Eviction  The action of recovering land or property by legal proceedings.

Exclusion clause  A clause in a contract which attempts to exclude or avoid liability.

Execution proceedings  The means of recovering a judgment, for example, a garnishment of wages or the seizure of goods.

Executor  The person whose duty it is to carry out the provisions of a will. Where that person is a female, executrix is traditionally used.

Ex gratia  As a matter of favour. An act done when there is no legal obligation.

Exhibit  A document or thing tendered as evidence in a court hearing or referred to in an affidavit.

Ex nuptial  Outside of marriage, such as an ex nuptial child.

Ex officio By reason of office or position. So, an ex oficio member of a committee would be a member of that committee because of their position, such as they contribute funding.

Ex parte  Where the court deals with a matter involving two parties without the other party being present. The ex parte application may also be made by an interested person who is not a party.

Extradition  The delivery by the authorities of one country (or state) of a person accused of a crime in another place to the authorities in that place.

Ff

Fair dealing Allows for the limited use of copyright materials for certain purposes without requiring permission from the copyright owner.

False imprisonment  Detaining someone in custody without lawful excuse.

Felony  A category of crime less serious than treason and more serious than a misdemeanour. Murder, manslaughter and rape are examples of felonies. This term is not normally used in Tasmania.

Fiduciary  A person who is in a position of trust in relation to another, and who is obliged to look after the interests of the other in preference to their own interests.  For example, a trustee has a fiduciary duty to the beneficiaries of a trust; a company director has a fiduciary duty to the company.

Foreclosure  The forced sale of a property to pay a mortgage or debt.

Gg

Garnishment  Proceedings to have a person or body who owes money to a debtor, to pay that money instead to a creditor. For example, an employer may be required to garnishee the wages of an employee, that is, paid part of their wages to a creditor.

Guarantee  To undertake with respect to a contract or the performance of a legal act, that it shall be correctly carried out.

Guarantor  The person giving the undertaking in a guarantee.

Guardian  A person who has the right and duty to protect another person, his or her property and rights.

Hh

Habeas corpus  “To have the body”. A prerogative writ directed to a person who holds someone in custody commanding them to produce that person before a court.

Hearsay evidence  Evidence of a fact not personally seen or heard by a witness, but proved by them to have been said by another. Hearsay evidence is normally not admissible in court proceedings, but there are exceptions to this rule.

Hinder  To do something less than prevent. It means rendering an action more difficult to carry out, but not impossible, that is, to be an obstacle or impediment.

Ii

Incite  To rouse or stimulate or prompt action. It does not necessarily mean to originate or initiate.

Indemnify  To make up a loss which someone has suffered as a result of the act or default of another.

Indemnity  Compensation for a wrong done or an expense or loss suffered.

Indictable offence  A serious crime for which a person will usually be tried by a judge and jury.

Injunction  A court order which directs someone either to do something or to refrain from doing something. An injunction may be interim (temporary, until a further order) or permanent.

Insolvent  Unable to pay debts in full. Another word for bankrupt.

Interlocutory proceedings  A step taken in the course of a legal action to assist either party in proceeding with their case by resolving a particular issue such as liability.

Interpleader  A court hearing that requires competing claimants to property or debt resolve their rights. Can occur in the context of the disposal of property or money under a will, or in bankruptcy.

Interrogatories  Written questions put by one party in a civil action to another on relevant points of the dispute prior to the court hearing.

Intestate  One who dies without leaving a valid will. In such a case the deceased’s property is distributed according to a statutory table of intestacy.

Jj

Joint tenants  People who own land together in undivided shares with a right of survivorship, ie. on the death of one owner their interest automatically passes to the surviving owner(s). The interest cannot be disposed of by will or deed as with tenants in common.

Judgment in default  Where the plaintiff is able to obtain judgment in the absence of an appearance or a defence.

Jurisdiction  The extent of a court’s authority to decide matters brought before it, and the geographical limits within which a court order can be enforced.

Kk

Ll

Lease  Agreement or contract between a landlord and a tenant. Someone to whom a lease is granted is called a lessee. Someone who grants a lease is called a lessor.

Leasehold  An interest in land for a fixed period.

Legal interest  An interest enforceable at law as distinct from an equitable interest.

Legatee  A person to whom property is bequeathed.

Letters of administration  If a person has died without leaving a will or without naming an executor, the court can grant letters of administration that authorised someone to administer the deceased person’s estate.

Liability  Legal responsibility, for example, for breaking a contract, committing a crime. It may be civil or criminal, according to whether it is enforced by the civil or criminal court.

Libel  The publication of defamatory material in permanent (for example, printed) form.

Lien  The right to hold a person’s property as security for the performance of an obligation (for example, the payment of money owing).

Limitation, statutes of  The laws which set out the time limits within which legal action must be taken.

Liquidated amount or claim  A sum which is certain, that is, a stipulated amount, as opposed to a general claim, for example, for damages.

Litigation  The act or process of taking a case to court.

Locus standi  "Place of standing"; the right to be heard in a court in relation to a particular action.

Mm

Maintenance  The payment of money to supply the necessaries of life for a person, usually by a parent for a child. Now also know as Child Support.

Manadamus  A form of writ by which actions for review of administrative decisions are commenced in the Supreme Court.

Mediation  A means by which parties reconcile their differences with the aid of a neutral third party.

Mens rea  A guilty mind, the evil intention or knowledge that an act is wrong.

Minor  A person under the age of 18.

Misdemeanour  A crime or indictable offence not amounting to treason or a felony, for example, criminal libel, perjury, conspiracy. In Tasmania it is commonly used to describe minor offences such as traffic offences.

Mitigation  Showing facts which tend to reduce the damages or punishment to be awarded against a defendant or prisoner. Also the obligation on someone to reduce their losses.

Mortgage  A transfer of real property (land) or personal property (goods) as security for the repayment of money borrowed. The creditor to whom the mortgage is made is called the mortgagee; the debtor who makes it is the mortgagor.

Nn

Natural justice  See procedural fairness.

Negligence  A failure to take reasonable care to avoid foreseeable harm to other people or their property.

Negotiable instrument  A signed document by means of which money may be transferred from one person to another or through several hands, for example, a cheque or a bill of exchange.

Next friend  A person who authorises commencement of proceedings on behalf of an infant and in whose name action is taken.

Nominal damages  Damages of a small amount ordered where a right has been affected but no damage done.

Non est factum  “It is not my deed”. A defence raised where a person has completed a deed in ignorance of its character.

Non-provable debt  Are debts not discharged by bankruptcy. Such as debts acquired after a declaration of bankruptcy. This includes fines or penalties imposed by a court, higher education debts owed to the government, and unliquidated damages from car accidents.

Notary public  A person who attests the signing of any deed or makes certified copies of it in order to make it authentic, especially for use abroad.

Nuisance  An indirect and unlawful interference with an occupier’s use or enjoyment of land by such things as water, smoke or noise.

Oo

Ombudsman  A public official appointed to investigate citizen’s complaints against the administrative agencies of government.

Onus of proof  The obligation to prove what is alleged. Also known as the burden of proof.

Pp

Parenting orders  Orders about children made under the Family Law Act.

Parole  The probationary release of a prisoner prior to the termination of their sentence.

Penalty units  Used in legislation to set the amount payable for a fine, for example, a drink driving charge.

Performer  A person who performs musical, dramatic, literary, circus or variety acts.

Perjury  Lying under oath when questioned about a material matter in a court proceeding. A person found guilty of perjury may face imprisonment.

Plaint  The cause for which the plaintiff complains against the defendant, and for which they obtain a writ or summons. Also describes the formal document stating an action in the Magistrates Court.

Plaintiff  Person who initiates legal proceedings against another in a civil dispute. See also complainant.

Plea in mitigation  A speech made to the judge or magistrate before a person is sentenced for a crime. The aim of the plea is to present reasons why the judge or magistrate should be lenient on the offender. The plea will include facts about the offender’s background, financial situation or events surrounding the crime.

Pleadings  Submissions of either side during the process of establishing the questions of fact and law to be decided in a court action.

Power of attorney  A formal written legal document by which one person gives another the power to represent them or act in their place for certain purposes.

Preliminary examination  See Committal proceedings.

Prerogative writ  A writ issued by a superior court (for example, the Supreme Court) to prevent inferior courts and officials from exceeding their powers or to compel them to exercise their functions, for example, habeas corpus, mandamus, certiorari.

Prima facie  "On the face of it". Evidence which will prove a fact or allegation if no other evidence is produced to the contrary.

Principal relief  In a divorce action, the dissolution itself rather than the ancillary relief.

Privilege  The right not to disclose certain information in evidence in court proceedings.  Communications between lawyer and client are privileged, that is, they do not have to be disclosed in evidence.

Privity of contract  A principle that restricts contractual rights and obligations to the immediate parties to a contract.

Probate  The proving of a will, the acceptance that the deceased’s will is valid and the last will in existence.

Procedural fairness  The rules and procedures to be followed by a person or body with the power to make decisions affecting an individual.  Also known as natural justice.

Process  Type of court document. A statement of claim or a summons is an ‘originating process’.

Proponent  A person who puts forward a proposal.

Provable debt  A provable debt is a debt or liability that arose before the bankruptcy or winding up, and must be recognised by a trustee when administering the estate of a bankrupt to satisfy debts.

Qq

Qualified person (IP)  Is an Australian citizen or person (other than a body corporate) resident in Australia; or a body corporate incorporated under a law of the Commonwealth or of an Australian State. A qualified person can claim copyright protection under Australian law.

Rr

Reasonable doubt  The amount of doubt that must be present in a jury’s mind to enable it to find a defendant not guilty.

Rebuttable presumption  A presumption that holds good in the absence of contrary evidence, for example, innocent until proven guilty. Thus the presumption of innocence is rebutted by positive proof of guilt. Almost all presumptions are rebuttable.

Recision  Revocation of a contract so that both parties are put back into the position that they occupied before the contract was made.

Recognisance  A bond, the object of which is to secure the performance of an act by the person bound by it, for example, to be of good behaviour.

Release  A document saying that money is accepted in full settlement.

Remand  To deny a person charged with an offence bail, and keep them in custody until the time of the trial. People charged with murder are almost always remanded in custody. This is also often the case with other serious crimes.

Remedy  The means by which the violation of a right is prevented, redressed or compensated.

Residence  A court order describing where a child will live after separation of the parents.

Respondent  A person against whom a summons is issued or an appeal brought.

Revoke  To cancel or withdraw on offer (in contractual situations) on a court order.

Rules of evidence  The legal rules which determine whether information is or is not admissible as evidence in court proceedings.

Ss

Seal  An impressed wax, an adhesive wafer or an official stamp that is attached to a document as a sign of its authenticity.

Security  An interest in property temporarily given by way of guarantee that an undertaking will be fulfilled or a debt repaid.

Sequestration order  An order that property be seized in satisfaction of a debt.

Set off  A claim for a specific amount raised by the defendant as a defence to a monetary claim of the plaintiff, that is, ‘set off’ against the amount claimed by the plaintiff so that the plaintiff receives the amount claimed less the amount claimed by the defendant.

Slander  The publication of defamatory material in non-permanent (for example, verbal) form.

Specific issues orders  Orders used in family law that may be about anything apart from residence, contact or maintenance.  For example, a specific issues order may be an order about particular needs the child may have such as medication, or may provide conditions for contact such as not smoking cigarettes during contact visits.

Standard of proof  The level to which something must be proved in court. In criminal matters, the standard is ‘beyond reasonable doubt’; in civil matters, it is ‘on the balance of probabilities’.

Statement of claim  Written statement by the plaintiff showing the facts on which they rely to support their claim against the defendant, and the relief which is claimed.

Statute  A law made by parliament (State or Commonwealth).

Statute barred  No legal action is available by statute.

Statutory declaration  A written statement which the person making it (the declarant) signs and solemnly declares to be true before a person authorised to witness such declarations.

Stay of proceedings  Suspension of proceedings in an action; may be either temporary (until something ordered is done) or permanent.

Strict liability  Liability incurred regardless of intention or fault.

Subpoena  A writ which commands the appearance of a person in court or the production of specified documents.

Sue  To take legal action.

Summary offence  A minor offence heard and decided before a Magistrates Court and not sent for trial before a jury and judge.

Summons  A command to appear at court, usually in the form of a document.

Surety  A person who binds themselves to be answerable for another at the risk of forfeiting a specified amount of money. If there is a default the surety will be liable to pay that sum to the court.

Tt

Tenants in common  One or more people entitled to occupy or own land in common with others. Each person may leave their share to someone else in a will, that is, there is no right of survivorship as there is with joint tenants.

Testamentary capacity  The ability to draw up a will; the mental capacity to know what is happening when this is being done.

Testator  A person who makes a will.  Where that person is female, testatrix may be used.

Tort  A civil wrong, other than a breach of contract, which causes harm intentionally or otherwise, and for which the injured person may claim damages.

Trespass  A tort involving the direct and unlawful interference with the possession of land or other property, regardless of the intention of the trespasser.

Tribunal  Court-like bodies generally of two types. A Domestic Tribunal is a body that exercises jurisdiction over the internal affairs of a particular profession or association. An Administrative Tribunal is a body established under an Act of Parliament to decide claims and disputes arising in connection with the administration of legislative schemes.

Trust  An association between two (or more) people, based on complete confidence, where property is held by one person on behalf of and for the benefit of another.

Trustee  A person who holds property on trust for another.

Uu

Ultra vires  ‘Beyond power’. An act which is in excess of the authority conferred by law, and therefore invalid.

Undertake  To promise to do or to refrain from doing an act. An undertaking made in the course of legal proceedings is enforceable by attachment or by an injunction.

Unliquidated  Undetermined, unascertained, for example, when damages are left to a jury to determine.

Vv

Vicarious  Liability which falls on one person as a result of an action of another. For example, the liability of an employer for the acts and omissions of an employee in the course of employment.

Void  Of no legal effect.

Voir dire  A preliminary examination of evidence by the judge in order to determine the admissibility in certain cases, for example, the qualifications of an expert or the admissibility of a confession in a criminal case.

Ww

Waive  To give up a legal right or claim.

Warrant  A legal document that gives authority to a specified person such as a police officer or customs officer to take the action set out in the warrant.

Warranty  A minor clause in a contract. If the clause is breached, damages can be claimed but the contract may not be terminated.

Waste  Something which does lasting damage to land or alters the nature of the property.

Writ  A document in the monarch’s name and under the seal of the Crown which commands the person to whom it is addressed to do or refrain from doing some act. Many civil court actions are started this way in the Supreme Court.

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Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.