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Glossary of Legal Terms

Potts Lawyers > Glossary of Legal Terms

Glossary of Legal Terms

 

A

  • Abuse of Process – Misuse or unjust use of court procedure, e.g. long delay in bringing an action may disadvantage a defendant. An abuse of process might be the Police destroying material that they knew would help the defence. Hiding documents would also be an Abuse of Process.
  • Accessory – Person involved in helping to commit a crime but who is not present at the time of that crime. An accessory ‘before the fact’ meaning prior to the crime. ‘After the fact’ meaning to be involved in the hiding or assisting the person/s who were at the involved at the scene of the crime.
  • Accomplice – Person who is party to the crime or the people involved directly with the criminal act is an accomplice.
  • Accused – Person alleged to have committed a crime.
  • Actus Reus – The physical element of an offence.
  • Acquit or An Acquittal – A decision by a judge or jury that finds a defendant in a criminal case not guilty after a trial. An acquittal is not necessarily a finding of innocence, more a conclusion that the prosecution has not proved its case beyond a reasonable doubt.
  • Adjourn / Adjournment – To move a court hearing to a future date.
  • Admissible Evidence – Evidence received, or capable of being received, by a court for the purpose of proving a fact in issue that is not excluded by the laws of evidence.
  • Affidavit – a signed, written statement by a person involved in the case, stating what they know. It is sworn under oath.
  • Affirmation – Instead of taking an oath, a witness may make a declaration that the evidence he or she gives will be truthful if the witness has no religious belief.
  • Age of Consent – The age at which a young person can legally enter into a sexual relationship. In Queensland, this is 16 years old.  Consent has a legal meaning that is different from the common understanding of the word. For example, a 15 year old may agree to a sexual act, but in reality the law is that they are not able to consent, legally, because of their age.
  • Aggravating Circumstance – A circumstance surrounding the commission of an offence that may result in a greater penalty for an offender.
  • Aggrieved – the person for whose benefit a domestic violence order, or a police protection notice is in force or may be made.
  • Alcohol Interlock – A breath-testing device wired to the ignition system of a vehicle that prevents a vehicle from starting unless the driver passes a breath test.
  • 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. An alibi witness is someone who can confirm that the accused was somewhere else.
  • Alleged – Said to have happened, but not proved. Allegations are what Court cases are built on.
  • Appeal – An appeal involves the challenging of a decision made by a lower Court.
  • Appellant – A person who appeals a decision of a court.
  • Appellate Courts – Courts to which an appeal is made, either District Court (for an appeal of a Magistrates Court decision) or Court of Appeal (for an appeal of a District or Supreme Court decision).
  • Applicant – Person who starts a case/makes an application in a court.
  • Arraignment – A process where the indictment is read to the accused, who is asked how she or he pleads to the count or counts (i.e. charges) contained in the indictment. The process is where the accused formally tells the Court whether they wish to plead guilty or not guilty.
  • Arrest – Arrest is the process by which someone is taken into custody.
  • Attorney – An attorney is an American term for a lawyer. Not used in Queensland.

 

B

  • Bail – A written promise signed by the defendant (called an undertaking) to come to court on the date written on the undertaking to face the charges against them.  There may also be further conditions attached (see below Bail Conditions).
  • Bail Application – The bail application is where evidence is presented, and submissions are made, about why a person should be released on bail.
  • Bail Condition – A limitation placed upon the grant of bail to an accused person.  This might include regularly reporting to a police station, living at a certain address, or having someone act as a surety. Breaching the conditions of a bail undertaking and/or failing to appear in court can result in arrest and/or the forfeiture of the surety.
  • Barrister – A lawyer who is trained in the rules of evidence and presents cases in higher courts.
  • Bar Table – The table in the courtroom where the police prosecutor, lawyers and defendants stand when appearing before the magistrate.
  • Bench – The place in court where the judge/magistrate sits.
  • Beyond a Reasonable Doubt – The standard of proof needed for an accused to be found guilty of an offence.
  • Bond – An agreement to do or refrain from doing certain things, e.g. good behaviour bond.
  • Brief for Counsel – Written summary by a solicitor of a client’s case and all the relevant statements and documents that are given to the barrister.
  • Burden of Proof – The burden of proof is the obligation to prove what is alleged. In criminal cases, this obligation generally rests on the prosecution, who must prove the case against the accused beyond a reasonable doubt. The burden sometimes shifts to the defendant if they raise particular defences.

 

C

  • Case Conference – A process where the defence can request the disclosure of specific items that the prosecution is relying upon in their case, and/or negotiation regarding a possible resolution of a matter. Sometimes, more than one court appearance is needed to finalise the case conferencing process.
  • Case Law – The law based on decisions made and principles established by judges which are used as reference for future determinations of similar cases.
  • Community Based Orders – These are sentencing orders made as an alternative to imprisonment.  The orders may require a defendant to undertake unpaid community service work, or educational work under the supervision of the Probation and Parole office.
  • CDPP – Commonwealth Director of Public Prosecutions.  This office prosecutes Commonwealth (aka federal) charges.
  • Character Reference – A character reference letter for Court will usually address issues important to a defendant’s case, i.e. good work history, need for a driving licence, positive changes in a person’s life. See our page for writing a character reference for courts.
  • Character Witness – A person who appears in court to give a reference for an accused person.
  • Committal Mention – A committal mention date is an administrative appearance.  The prosecution is required to provide their full brief of evidence to defence prior to that date.  The accused will need to advise the court whether they wish to cross-examine witnesses at a committal hearing.
  • Committal Hearing – Where a Magistrates’ Court hears evidence on an indictable charge and decides whether the accused’s charge/s should be sent to the higher court.  Police witnesses may be cross-examined at this hearing.
  • Common Law – Principles or case law developed in courts, distinct from legislation. This term is sometimes used to describe case law or judge made law.
  • Compensation Order – An order made by the court for a person found guilty of a criminal offence to pay for the loss or damage of property caused by the offence.
  • Complainant – A complainant is generally used as a term to describe the person who alleges something has been done against them.
  • Complaint – Document giving a brief description of the facts outlining the reasons for a lawsuit.
  • Confidential Communication – Protection against disclosure to an outside person of information revealed in a professional relationship, e.g. doctor/patient.
  • Confiscation Proceedings – an application made by the Prosecution to seize assets of the accused. This application is commonly made against those accused of fraud or trafficking in drugs.
  • 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. An example of a common conflict of interest is where a solicitor acts for more than one person whose instructions are different.
  • Conspiracy – An agreement between persons to do an illegal act or to do a legal act but by illegal means.
  • Contempt of Court – Words or actions which interfere with the proper administration of justice or constitute a disregard for the authority of the court.
  • Contested Hearing – A “Contested hearing” is also known as a “plea of not guilty”. The Prosecution attempt to prove that the accused did commit a crime or crimes.
  • Contested Sentence – A “contested sentence” is where a person pleads guilty but does not accept the police facts. Often witnesses are called to assist the court in deciding on what factual basis to accept and sentence the person on.
  • Convicted/Conviction – To be found guilty of a criminal act or illegal act.
  • Corroboration – Independent evidence which supports the main evidence. For example, corroboration might be proof that an accused’s mobile phone sent an incriminating text just after the alleged crime.
  • Counsel – Also known as a barrister.
  • Court Clerk the court officer who aids the magistrate in running the court.
  • Court Link Program – A program run at selected Magistrates Courts in Queensland intended to link accused persons to treatment and community support services.  The accused participates in this program while they are on bail awaiting the finalisation of their matter.
  • Criminal History – a record of criminal offences for which a person has been convicted.
  • Cross-examination – Questions asked of a witness who was not called by that party to give evidence.
  • Crown Prosecutor – The Legal representative of the State who runs a criminal proceeding against an accused.
  • CTO (Community Treatment Order) – Treatment of an involuntary patient by a medical practitioner in the community, not in a mental hospital.
  • Cumulative Sentence – An order for a period of imprisonment to be served in addition to a previous sentence. For example, if a person is sentenced to 12 months on one crime with 6 months cumulative on another offence then they would serve a total of 18 months imprisonment.
  • Custodial sentence – A custodial sentence is one that is spent in custody.
  • Custody – The legal confinement or imprisonment of a person. A person who is arrested and held by the Police is said to be “in custody”.  This could be in a police watchhouse or at a prison.

 

D

  • Defendant – Person accused and charged with a criminal offence. A Defendant is also known as an accused.
  • Depositions – Another word for statements and transcripts of evidence.
  • Deponent – the person who signs an affidavit.
  • Directions Hearing – If there are any legal issues in dispute, a matter will be listed for a ‘Directions Hearing’.
  • Director of Public Prosecutions – The office responsible for instituting, preparing and conducting serious criminal matters in the District and Supreme Courts on behalf of the Crown.
  • Disclosure – Revealing all relevant information.
  • Discontinuance – where the prosecution no longer proceed with a charge or charges. In the higher courts, this is known as “Nolle Prosequi”.
  • Discretion – The Court’s ability to choose whether to, or whether not to, proceed with a decision. Some sentencing is purely about the discretion of the Judge.
  • Dismissal – A court order dismissing a charge or charges before a court.
  • Diversion – A process by which charges are diverted away from the court system. Diversions are generally reserved for minor offences of first offenders. An example of a diversion in Queensland is ‘Justice Mediation’.
  • Domestic Violence Order (‘DVO’) – Also known as a Protection Order.  This is an order made by the court for a person to be of good behaviour to another person (the aggrieved) and not commit domestic violence against that other person.  There may also be further conditions attached to the order, for instance conditions prohibiting or limiting contact with the aggrieved.
  • Drug Court – The Drug and Alcohol Court is based in the Brisbane Magistrates Court (on George Street). The Drug and Alcohol Court has a focus on assisting those persons who commit crimes whilst suffering a severe substance use disorder to address their substance abuse issues by supervising them as they undertake treatment to address not only their drug/alcohol dependency issues, but also their criminal offending. For more information, see our blog article about the Drug Court here.
  • Drug Treatment Order – A treatment order is the penalty that is imposed upon a defendant whose matter proceeds to sentence in the Drug and Alcohol Court.  The offender undergoes treatment and supervision whilst on the order.  For more information, see our blog article about the Drug Court here.

 

E

  • Elements of an offence– The police have to prove to the court, beyond a reasonable doubt, that the defendant is guilty of each ‘element’ of the offence they have been charged with. Elements can include time, date, location and actual charge.
  • Empanel a Jury – Empanelling is the process to pick the jury members at the start of a trial.
  • Evidence – these are the facts that a court decides a case on. Evidence can be presented verbally to the court or in the form of an affidavit.
  • Examination in Chief – Questioning of a witness by the party who called the witness.
  • Exceptional Circumstances – Exceptional circumstances is a legal threshold. Often applied in sentence hearings for certain offences. In essence, circumstances must be fairly extraordinary to amount to exceptional circumstances.
  • Exhibit – A document or thing shown to a witness when giving evidence, produced for inspection to the court or referred to in an affidavit.
  • Ex Parte Hearing – An application to a court made in the absence of the one party.
  • Ex Parte Order – An order made by the court on behalf of one party without hearing and/or prior notification to the other party involved.

 

F

  • Fail to appear– If a defendant does not go to court on the right date, they could be charged with an offence called ‘failing to appear’ and the court may issue a warrant for their arrest.
  • Filing – the process whereby documents are accepted by a court and often this is evidenced by the court stamping its seal on the filed document.
  • First appearance/mention – The first time a defendant appears in court. The first mention date will be set down in the notice to appear, summons or bail conditions.
  • Forensic Procedure – Examination of the body of a person suspected of having committed an offence, or the taking of certain body samples.
  • Freedom of Information – The right of any person to have access to documents held by government agencies, except those exempted by legislation. For example, Freedom of Information requests are used to access hospital records. Generally, in criminal matters a subpoena is used rather than an FOI request.
  • Full brief of evidence (‘FBOE’) — This will contain all the evidence including witness and police statements, video and audio tapes and other evidence that prosecutions are relying on to prove their case.
  • Full hand up committal – where the police statements are provided to the magistrate and no cross examination occurs.  The charge or charges are then committed to a higher court.

 

G

  • Guilty Plea Hearing – Also known as a sentence hearing, a guilty plea is where the defendant’s circumstances and the context of the offending are put before the magistrate or judge. It is after this process that an accused will be given their sentence or penalty.

 

H

  • Hearing – When a case is heard in Court.
  • Hung Jury – A jury that cannot agree or come to a final verdict. Normally what follows from a hung jury is a re-trial of the case.

 

I

  • ICO (Intensive Correction Order) – A sentence option with very strict conditions attached.
  • Identifying Particulars – Material collected by the police from an accused such as fingerprints and photographs.
  • 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.
  • Immunity – Exemption from penalties normally applicable. In criminal cases, the Prosecution can give people immunity from facing charges depending on the importance and weight of the evidence that they would provide for the prosecution.
  • Inadmissible – Not allowed or to be used as evidence in a court case. The criminal process is surrounded by rules to try to achieve a fair outcome. Often there is material that is inadmissible because, for example, it would favour one side too much but is not really relevant.
  • Incriminate – Evidence that tends to indicate that an accused is involved in a crime.
  • Indictable Offence – A more serious offence than a summary offence. The magistrates court hears some indictable offences, but others are dealt with by the District or Supreme Court.  Many indictable offences must now be dealt with in the Magistrates Court.  With some indictable offences the defendant, or the prosecutor, can choose if it is heard in the Magistrates Court or a higher court.
  • Indictment – The document that lists the charges against the accused in District or Supreme Court proceedings.
  • Indictment Presentation – The first court appearance in the District or Supreme Court is known as the ‘Indictment Presentation’.  The Crown provide the court with the Indictment at this court appearance.
  • Informant – A person who provides information that leads to a person being charged with an offence.
  • Infringement Notice – Notice showing that an offence (usually a traffic offence) has been committed and the penalty to be paid (an “on the spot fine”).

 

J

  • Judgment – An oral or written statement by a judge as to a decision reached.
  • Judicial Discretion – The right of a judge to make a choice.
  • Jurisdiction – Jurisdiction decides which Court a case will be heard in.
  • Jurisprudence – The philosophy or science of law; a system of laws.
  • Juror – A person who serves on a jury. They make the decision of fact in a Court case heard in the District or Supreme Court.
  • Jury – A group selected from the general public who apply the law, as stated by the judge, to the facts of a case and decide the verdict. A jury is usually made up of 12 people.
  • Justice of The Peace – A community member whose duties include administering oaths, take statutory declarations and affirmations.

 

L

  • Leading question – A question to a witness that suggests a particular answer or assumes the existence of a disputed fact. Generally, a leading question must not be put to a witness during examination in chief or re-examination.
  • Legal Privilege – Legal privilege is the concept that an a person’s discussions with their lawyers can not be used against them in Court. There are exceptions to this rule.

 

M

  • Magistrate – A judge who sits only in the Magistrates’ Court.
  • Memorandum – An informal written document.
  • Mens Rea – The mental component of criminal liability.
  • Mention – A procedural court date where the prosecution and defence must update the court as to the progress of the matter.
  • Mitigating circumstances – Facts or information that might explain how or why the defendant came to commit the offence and that may, therefore, help their case. For example, mental health circumstances of the defendant.

 

N

  • Nolle Prosequi – Latin meaning ‘we will no longer prosecute’.
  • Non-custodial Sentence – A sentence for a criminal offence which does not involve imprisonment.
  • Non-parole Period – The minimum term a prisoner must serve before being eligible for or released on parole.
  • Notice to Appear A written document that tells an accused person what they have been charged with and when and where they have to go to court. A notice to appear is given to an accused at the time they are charged. The accused must appear or else risk having a warrant issued for their arrest and detention.

 

O

  • Onus of Proof – Burden of proof. That is who is obliged to prove that something happened.
  • Own Undertaking – (Release on bail) without having to deposit money as a security for a later appearance in court.

 

P

  • Paralegal – A researcher or assistant to a lawyer who has some legal skills but no legal qualifications.
  • Partial brief – This will contain the witness statements of the complaint and list the evidence that the police are relying on.  This is usually only provided if the defendant intends on pleading guilty to a charge in the higher courts.
  • Parole – To release a prisoner from a part of his or her sentence after serving a minimum term, providing some certain conditions are met. If the person breaches any of their parole conditions or commit a further offence, the prisoner must return to prison and usually will be required serve out the rest of the sentence in custody.
  • Penalty – A punishment imposed by a Court.
  • Perjury – Making a false statement under oath in a judicial proceeding while knowing that the statement is false or not believing it to be true.
  • Perpetrator – Person who committed the offence.
  • Plea – A defendant’s answer to the charges brought against him or her.  A person pleads guilty or not guilty.
  • Police Brief – The evidence the police prosecutor relies on to prove the guilt of a person charged with a criminal offence. It contains statements of witnesses and a summary of the facts as the Police allege them.  The police brief may be a partial brief or a full brief.
  • Police Protection Notice (‘PPN’) – a notice issued by police to the respondent in response to a domestic violence incident.  There may be conditions attached to the PPN such as conditions prohibiting the respondent from contacting the aggrieved.
  • Precedent – The concept that a legal principle or form decided in an earlier instance, or case, should be used in a subsequent one.
  • Prejudicial – In deciding whether to admit evidence, a judge or magistrate must consider whether the admission of such evidence would be unfairly harmful to an accused.
  • Preliminary Complaint – Also known as a fresh or recent complaint witness. These types of witnesses are generally in sex cases and are the person the complainant is alleged to have discussed the allegations with.
  • Pre-record Hearing – A hearing where the evidence of a complainant in a sexual offence case or a child witness, is recorded before the trial.  This recording is then played at the trial.
  • Presentence Report – A report, usually prepared by Youth Justice, for the court to consider before sentencing a young person.
  • Presentence Psychological Report – A report prepared by a psychologist for the court to consider before sentencing a person.  The report usually sets out clinical findings and opinions, and other relevant considerations for the sentencing Judge/Magistrate.
  • Prima Facie Case – (Prima facie is Latin for ‘at first sight’ or ‘on first consideration’) A prima facie case is one that needs to be responded to as there is, on the face of it, sufficient evidence to convict an accused.
  • Probative Value – The extent to which evidence could help decide a fact in issue.
  • Prosecute – To pursue a person through Court proceedings.
  • Prosecution / Prosecutor – Prosecution can refer to the person or organisation presenting evidence against the accused. It can also mean the case itself.
  • Protection Order – Also known as a Domestic Violence Order.  This is an order made by the court for a person to be of good behaviour to another person (the aggrieved) and not commit domestic violence against that other person.  There may also be further conditions attached to the order, for instance conditions prohibiting or limiting contact with the aggrieved.

 

Q

  • QP9– A written summary of the police version of why a defendant was charged and what police say happened.
  • Queen’s Counsel – A senior barrister who has been recognised by the Bar for being outstanding in their field. Also known as Senior Counsel.

 

R

  • Recognisance – A promise made to a court to do something.
  • Re-examination – Further questioning of a witness by the party who called the witness after cross-examination of the witness has been completed.
  • Registrar – A judicial officer of the court who exercises both judicial and administrative functions.
  • Respondent – A person against whom has to respond to something, for example a person who is defending an appeal or an application for a domestic violence order.
  • Restitution – An order to pay back the amount of loss that has occurred because of the commission of a crime.
  • Restraining Order – An order by the courts to stop someone from coming into contact with another person.  These orders are often made against people charged with stalking.
  • Right of election — if a defendant is charged with an indictable offence, the defendant or the prosecutor may be able to choose if the case is heard in the Magistrates Court or in a higher court like the District Court or Supreme Court.

 

S

  • Self-Incrimination – The privilege against self-incrimination means the right (with certain limitations) not to do or say anything which might later be used as evidence against you.
  • Senior Counsel – A very senior and expert Barrister, also known as Queen’s Counsel.
  • Senior Junior – A barrister who is not at Senior Counsel level but very close.
  • Sentencing / Sentence Hearing – Usually a Magistrate will sentence on the same day as the plea is heard. A Judge will often adjourn the matter for a sentencing hearing on a further date.  Learn more about sentencing here.
  • Serve Documents – To deliver documents to another party in a criminal proceeding.
  • Sex Offender Registry – A listing of people convicted of certain sexual offences. The Registry comes with very onerous reporting conditions.
  • Show Cause – A reversed onus of proof which applies to bail applications in some circumstances. In a show cause situation, the accused has to show the court reasons why they should be released.
  • Solicitor – A lawyer who conducts and handles legal matters and gives legal advice.
  • Statute – A law made by Parliament (state or Commonwealth).
  • Statute of Limitations – Law which requires a criminal prosecution or a lawsuit to be started within a certain time period if it is to be able to be taken in and heard by a court.
  • Submissions – Verbal or written arguments made to support a case.
  • Subpoena – A subpoena compels a person to testify and/or to produce documents in court. A subpoena is an order of the court and, if disobeyed would amount to a contempt of court.
  • Summary hearing – Also known as a summary trial. A summary hearing is a procedure in the Magistrates Court for summary offences and some indictable offences. The court hears the police evidence and any evidence from the defendant and decides whether the defendant is guilty or not guilty.
  • Summary offence – Usually a less serious offence always dealt with by a magistrate in the Magistrates Court. Examples include driving offences, creating a public nuisance, trespassing, unlawfully having suspected stolen property, or having a spray can for graffiti.
  • 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.
  • Summons to appear – A summons is a document requiring a person to go to court on a certain date. It will also include what that person has been charged with.  A summons works like a Notice to Appear except that police need a Justice of the Peace to sign it. The police then serve it on the defendant and lodge it with the court.
  • Surety – A surety refers to the amount of money or assets that is put up to release a person on bail. It is also used as the term for the person who puts up the surety.
  • Suspended Sentence – A sentence of imprisonment which is only served if the convicted person commits further offences. They may be partially or wholly suspended.

 

T

  • Tender – To present evidence to the court for acceptance or rejection.
  • Trial – Where the case against the accused is heard by a magistrate (in the Magistrates Court) or a jury (in the District or Supreme Court), who decide on the facts of the case based on the evidence presented.

 

U

  • Undertaking – A written promise to the Court or someone else.

 

V

  • Verdict – The final decision made by a jury or magistrate.
  • Victim Impact Statement – A statement to the court by the victim of a crime setting out details of injury or other impact in their life.
  • Voir Dire – A voir dire is a preliminary hearing in relation to evidence. An example being that a Judge wants to decide on whether something is admissible and so they may have evidence called to determine that issue.

 

W

  • Warrant – A warrant is an authorisation to carry out a specific act. There are many forms such as a warrant of arrest or apprehension, a search warrant or a return to prison warrant (directing that a person be arrested and imprisoned for breaching their parole).
  • Witness – A person who will evidence in a case of their knowledge about a relevant fact in issue. The process a witness goes through is referred to as “giving evidence”.