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Glossary

affidavit

A written document sworn on oath before a person with authority to administer it. The person in whose name the document is sworn is called the deponent.

alibi

Defence to a criminal charge on the grounds that the accused was somewhere other than the scene of a crime when that crime was committed.

alleged

Said to be the case, but not yet proved.

appeal

To remove a case to a higher court.

appellant

A person who appeals (q.v.) a decision of a court or tribunal.

arrest

To take into custody.

asylum

Refuge or protection from persecution, usually in another country.

bail justice

A person who is not a judge or magistrate but who has authority to grant or refuse bail (q.v.), usually at a police station.

balance of probabilities

The standard of proof (q.v.) required in civil law (q.v.) cases, i.e. it is more probable than not that what the person says happened is true. (In criminal cases, the standard is proof beyond reasonable doubt.)

beneficiary

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

beyond reasonable doubt

The standard of proof (q.v.) required in criminal cases.

bias

A pre-existing attitude or opinion that favours one side over another in a dispute.

bond

(1) A deed (q.v.) in which a person undertakes to do or refrain from doing certain things, e.g. good behaviour bond. (2) Money paid to a landlord by a tenant at the start of a tenancy as security in case of future damage to premises or non-payment of rent.

by-laws

Former name of local laws (q.v.).

capacity

The ability to understand and give legal consent to an action or arrangement.

case law

The law based on decisions made by judges in previous case. See: common law.

See common law.

civil law

Law which is not criminal or church law (usually the former), it may mean law based on the Roman system. Throughout this book, civil law means non-criminal law.

code of practice

A set of guidelines for fair practice developed for a specific industry or occupation. May be voluntary or statutory (q.v.).

combined custody and treatment order

A sen­tence that is served partly in prison and partly in the community undergoing supervised drug treatment.

common law

The part of English law traditionally based on common custom and being unwritten. Law which is not equity (q.v.), statute (q.v.), ecclesiastical (church), or civil (i.e. Roman).

common law defence

A defence based on decisions in previous cases.

CBO (community-based order)

A sentencing order, as an alternative to imprisonment, requiring a person to undertake unpaid or educational work under the supervision of the Office of Corrections.

compensation order

A court order that a person found guilty of a criminal offence must pay for loss or damage of property caused by the offence.

complainant

A person who begins a prosecution against another in the Magistrates' Court, a plaintiff.

conciliation

Process of resolving disputes which involves negotiations between parties, assisted by a conciliator. Conciliation aims for mutual agreement rather than a decision in favour of one side.

conduct money

Money which must be provided to a witness subpoenaed (q.v.) to court to cover the cost of travel to and from court.

confidentiality

Protection against disclosure to an outside person of information revealed in a professional relationship, e.g. doctor-patient.

conflict of interest

A situation where a person's own interests, or a duty towards someone else, may affect the way they carry out a duty towards others.

consent

Agreement to an action or arrangement. See also: informed consent.

contest mention hearing

A preliminary hearing in criminal cases where parties can try to reach agreement on some matters before the full hearing.

contravene

To breach, neglect or refuse to comply with a particular requirement or condition.

copyright

The rights belonging to the owner or licensee of literary, artistic and dramatic works, films and sound recordings, to reproduce, perform or otherwise deal with these works.

covenant

An agreement creating an obligation contained in a deed (q.v.) or land title. A covenant may serve the same purpose as a bond (q.v.).

cross examination

The questioning of a witness by the opposing party (q.v.) in a court case.

custodial sentence

A sentence of imprisonment.

custody

Control; e.g. when arrested and not free to leave; formerly, care and control of a child.

damages

A court order for money to be paid as compensation for a loss suffered as a result of a civil wrong or breach of contract.

deemed

To be treated as.

defamation

Publication of false and derogatory statements about another person, without any justification recognised by law. See also: slander, libel.

See slander.

See libel.

defendant

A person who has been charged with a criminal offence, or whom a civil action has been brought against.

delegated legislation

See: Regulations.

determination

Decision.

disclosure

Giving particular information to another party as required by a contract or legal process.

discovery

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

discretion

Power to choose whether to do or not to do a certain thing, e.g. investigate a complaint.

doctrine

A framework, set of rules, procedural steps, or test, often established through precedent (q.v.) in the common law (q.v.), through which judgments can be determined in a given legal case.

See common law.

See precedent.

duty lawyer

A lawyer at the court who provides free legal assistance to people appearing in court on criminal charges who have not yet had legal advice.

duty of care

The obligation of a person to exercise reasonable care in the conduct of an activity. Breach of a duty of care which causes damage or loss to another may give rise to an action in tort (q.v.).

enforce

To make people obey (a law, the terms of an agreement, etc). Also: enforceability.

eviction

The action of recovering land or property from an occupier or tenant by legal proceedings.

examination in chief

Questioning of a witness in court by the party that called that witness, c.f. cross-examination.

excess

Amount of money the insured person has to pay towards the cost of settling a claim under the insurance contract.

exhibit

A document or thing shown to a witness when giving evidence, produced for inspection to the court or referred to in an affidavit (q.v.).

extradition

The process used when a person in one state or country has committed a crime in another state or country, and is to be taken into custody and sent for trial to the place where the offence allegedly occurred (verb: to extradite).

forensic procedure

Examination of the body of a person suspected of having committed an offence, or the taking of certain body samples.

freedom of association

The right to belong, or not belong, to an industrial association (trade union).

guardian

A person who has the right and duty to protect another person, his or her property and rights. A plenary guardian has all the powers of a parent.

habeas corpus

To have the body. A prerogative writ (q.v.) directed to a person who holds someone in custody commanding him or her to produce that person before a court.

identification parade

A police "line up" held so a witness to an offence can try to identify a suspect among other people of similar appearance.

in lieu

In place of. So: time in lieu - agreement to allow time off instead of payment for overtime worked.

inadmissible

Not allowed, i.e. not able to be used as evidence in a court action.

incorporated associations

A not-for-profit community organisation with a separate legal identity and a structure regulated by legislation.

indictable offence

A serious crime which is generally triable before a judge and jury.

indictment

The document that lists the charges against the accused in County or Supreme Court proceedings. Criminal proceedings commence upon its filing with the court.

infant

The legal term for a person under 18, used particularly in family law and civil actions (q.v.).

informant

A person who lays an information, i.e. a criminal charge (q.v.). Usually a police officer.

informed consent

Agreement given for something to be done, after the procedure has been fully explained so that the person understands the procedure and his or her rights to agree or refuse.

infringement notice

Notice showing that an offence (usually a driving offence) has been committed and the penalty to be paid (an "on-the-spot-fine").

injunction

A court order which directs someone either to do, or to refrain from doing, a particular thing. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely).

insolvent

Unable to pay debts in full.

ICO (intensive correction order)

A non-custodial sent­ence (q.v.) with very strict conditions attached.

interrogation

The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, the pre-hearing process, by which a party asks the other party a series of written questions (interrogatories) which are then required to be answered on oath.

intervention order

Court order restraining a person from harmful or annoying conduct.

judicial review

Review by a court of an adminis­trative act (q.v.) on the basis of fault in the decision-making process. Compare: review on the merits.

jurisdiction

The authority of a court to decide matters brought before it; the geographical limit within which a court order can be enforced.

jury

A panel of people selected from the general public to decide the guilt or innocence of people tried in criminal cases, or questions of damages (q.v.) in civil cases.

lease

A document of agreement between a landlord and a tenant, for rental of premises.

liability

Legal responsibility, e.g. for breaking a contract, committing a crime. It may be civil (q.v.) or criminal, and is enforced by civil or criminal courts.

libel

The publication of defamatory material in permanent form. See also: defamation, slander.

See defamation.

See slander.

litigation

Court proceedings in civil matters (q.v.). A litigant is one of the opposing parties (q.v.) in a civil proceeding.

local laws

Laws made and enforced by municipal councils within their boundaries. Previously called by-laws.

mandatory

Having to be strictly complied with. Mandatory reporting: obligation to report, e.g. cases of abuse of children, to authorities. Mandatory sentencing: automatic gaol term for certain offences.

material

Relevant or important; information which may influence a decision.

mediation

Form of dispute resolution where an impartial third party helps communication and negotiations between the parties, but does not decide the dispute. Compare: arbitration (q.v.).

mention date

In Magistrates Court criminal matters, the first day on which a matter is listed at court. A case can only be heard on the mention day if it is a plea of guilty.

mitigation

Circumstances which go towards reducing the damages or punishment which the court may order against a defendant or prisoner.

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 the mortgagee, the debtor who makes it is the mortgagor.

native title

A form of communal title whereby land is not owned but is used by those who have rights over it. Describes traditional Aboriginal rights over land in Australia.

natural justice

The rules and procedures to be followed by a person or body with the power to settle disputes. (See: Administrative Law). Some rules of natural justice are to act fairly, without bias, and the right of all parties to be heard.

negligence

A tort (q.v.) involving the breach of a duty of care (q.v.) resulting in loss or damage to another person.

nominee

A person acting as a buyer on behalf of someone else.

non-custodial sentence

A sentence for a criminal offence (q.v.) which does not involve imprisonment.

non-parole period

The minimum term a prisoner must serve before being eligible for parole (q.v.).

offender

A person who commits an offence.

ombudsman

A public official appointed to investigate citizens' complaints against the administrative agencies of government, or against members of a particular profession.

paramount

Most important.

parole

To free a prisoner on his or her own recognisances (q.v.) after serving a minimum term.

perpetrator

Person who committed the offence.

person responsible

The person highest on a designated list who is available and able to make decisions on medical treatment for a patient who is unable to give informed consent (q.v.).

plaintiff

Person who initiates legal proceedings against another in a civil dispute (c.f. complainant).

pleadings

Written or printed statements delivered by parties to one another so questions of fact and law to be decided in a court action can be ascertained.

precedent

The doctrine by which courts are obliged to follow past decisions.

probation

A non-custodial sentencing order (q.v.) that involves good behaviour and supervision by a probation officer under defined reporting conditions for a specified period.

prohibition

An order to stop decision-making proceedings in a lower court or tribunal.

prosecution

The party (q.v.) presenting evidence against the person accused of committing a crime.

public officer

Person appointed to act on behalf of an incorporated association in any public dealings.

pursuant to

According to, as directed by (an Act or Regulation).

recognisance

A bond (q.v.) the object of which is to secure the performance of an act by the person bound by it, e.g. to be of good behaviour.

retrospective

Applying to circumstances existing before the date on which a law came into effect.

reversed onus of proof

In prosecutions for many drug offences, once the prosecution has presented certain matters of proof to establish a prima facie (q.v.) case, the onus of proof (q.v.) rests on the accused, who must prove innocence on the balance of probabilities (q.v.).

sanction

A penalty or punishment imposed on someone found guilty of an offence.

self-representation

Presenting your own case in court without a lawyer being there to assist you.

serious indictable offence

An indictable offence (q.v.) for which the penalty is imprisonment for five years or more, or life imprisonment.

serious injury

In relation to transport injuries, a serious long-term impairment, disfigurement or loss of a body function, or severe long-term mental or behavioural disturbance, or loss of a foetus.

spent conviction

A conviction for a minor criminal offence, which after a certain time without re-offending, is considered to no longer exist.

standing

The right to take action in court or to be heard or represented in a case.

status quo

The existing situation.

statute

A law made by Parliament (state or Commonwealth).

statutory declaration

A written statement of facts which the person making it signs and solemnly declares to be true before a person authorised to take declarations.

statutory defence

A ground for defence included in a particular law which would prevent a person from being found guilty of an offence under the law.

subpoena

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

sue

To take legal action.

summary offence

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

summons

A document which is issued by the court requiring the attendance of the person named in the summons at court on a specified date.

surety

A person who binds him or herself to be answerable for another. If there is a default, the surety will be liable.

suspended sentence

A sentence of imprisonment which is only served if the convicted person commits further offences. May be partially or wholly suspended, or a combined custody and treatment order (q.v.).

sworn evidence

Evidence given under oath (q.v.).

tenancy

The relation between a landlord and a tenant for rented premises. (See: lease).

tort

A civil (q.v.) wrong, an act which causes harm, intentionally or otherwise, for which the remedy is an action for unliquidated (q.v.) damages.

trafficking

In common law, movement from source to end user in the course of trade. Drug trafficking has a much wider definition.

trespass

Wrongful entry onto or interference with a property without the permission of the lawful owner or occupier.

tribunal

A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding.

undertake

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

valid

Legally binding (q.v.) or effective.

visa

Permit that allows either temporary or permanent stay in a country.

void

Of no legal effect.

warrant

A document issued by a court directing an officer to take certain action. May be: a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person's goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate.

whistleblower

Person who makes a complaint about illegal or inappropriate actions of their employer.

witness

A person who can provide direct information based on their own knowledge about a relevant fact in issue, and appears in court to do this.

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.