Chapter 15: Glossary

Accused, Defendant
An accused is a person charged with an indictable offence heard in a higher court; while a defendant is a person charged with a summary offence, heard before a magistrate in the Local Court.
The suspension of a hearing until a further date that is usually specified. Either party may apply for an adjournment, but it is the decision of the magistrate or judge as to whether or not it will be granted.
A signed and sworn statement prepared for a court.
An appearance in the District or Supreme Court at which the charge is read, and a plea is formally entered for an indictable offence. This generally takes place about two months after committal from the Local Court.
This is an authorisation to be at liberty while awaiting a hearing or trial. Depending on the circumstances, bail may be unconditional, or may have conditions attached. It might be reassessed at each court appearance, and conditions may be varied. If bail is refused, you might be able to apply again, or to appeal the decision. However in New South Wales there are limits on repeat bail applications to the Supreme Court.
Barristers, Solicitors
Barristers are special advocate lawyers who speak for the clients in court. Previously you needed to be referred to a barrister by a solicitor, but barristers may now advertise for themselves, and deal directly with the client. A solicitor is the person you hire to prepare your case. In the Local Court, the solicitor will usually be your advocate, while in higher court matters, they will usually hire a barrister on your behalf.
See Instructions; also the police or prosecution evidence (a collection of witnesses' statements) against a defendant or accused.
Cases often appear in the court's lists several times before there is a hearing, or before sentencing occurs. These court appearances are known as callovers, or mentions. They are used to find out how you will plead, and how much time the court will need to allocate for a hearing.
If you are charged with a serious offence, a preliminary hearing is often held before a magistrate to decide if the matter should go to trial. This is the 'committal hearing' where the prosecution must test its case, and the magistrate must either discharge the accused, or commit her or him to trial.
Common law
Law made by judges in their decisions in the higher courts. These are written up in the case law of the State and federal law reports. You may refer to case law principles in court. Compare with Statute law.
A person is in contempt of court when she or he shows a serious lack of respect to the court, the judge/magistrate, or to the judicial system in general. Conduct likely to prejudice a fair trial (for example, public statements for or against the accused) will also be in contempt of court.
See 'Accused'.
District Court, Local or Magistrates Court
The District Court is a higher court in which trials for most serious offences are heard; it also hears appeals from Local Court hearings. The Local Court (also known as the Magistrates Court) is presided over by a magistrate who hears all summary offences. The Local Court also conducts committal hearings for indictable matters.
Examination, Cross-examination & Re-examination
The examination-in-chief is where you call your own witness to give evidence supporting your case. You cannot suggest answers or lead your witness. This is then followed by the cross-examination by the other side, to point out any inconsistencies or weaknesses in that witness's evidence; but questioning is not confined to matters brought out in the examination-in-chief. Finally, the side who called the witness is able to re-examine the witness to clear up anything that arose in cross-examination.
Ex-officio indictment
The Attorney General has the power to indict a person to face trial, without having the benefit of a committal hearing.
Expert witness
A highly-qualified person in a particular area who is able to give opinion evidence in her or his area, despite the general prohibition on opinion evidence.
Fail to appear
If you fail to appear at any court hearing or mention at which you are expected to appear, then you will be charged with 'fail to appear'; you may be convicted in your absence, and you will have difficulty getting bail in future.
Hearing, Trial
A hearing takes place before a magistrate. When the hearing begins, a formal plea may be taken followed by the opening by the police or DPP prosecutor. The prosecution evidence is then led, at the end of which you may argue whether a prima facie case (that is, evidence which, if accepted, might prove the charge) against you has been made out. If it has not, there is no need for any defence evidence. If it has, you may wish to call defence evidence. A trial is a hearing in a higher court, generally before a jury. The outcome of the trial will be either an acquittal or a conviction.
Hearsay rule
The rule against hearsay states that evidence of what someone else has allegedly said about the offence is not admissible as proof of the truth of the statement; it is only admissible as proof that the statement was made. One exception is where hearsay involves a confession.
Hostile witness
If a witness appears unwilling or biased against the party calling that witness, they will be declared hostile. Hostility is usually determined by the witness's demeanour, or any prior inconsistent statements; and once declared hostile, the witness can be cross-examined by the party calling her/him for the information she/he is unwilling to give.
Indictable offence
See 'Summary & Indictable offences'.
Instructions, Brief
The instructions are the account that the client gives to the solicitor of what happened. This, with the statements of witnesses, is passed on to the barrister in a brief of the whole case. Instructions may also include directions to the lawyer as to what to say or what questions to ask; however some lawyers consider this a matter of their professional discretion. If you are unhappy with your lawyer's performance in court, or she or he is not doing what you want, then you should sack the lawyer. This is called withdrawing instructions. But remember that it is up to the magistrate or judge to grant you an adjournment to find another lawyer, so if you are going to sack one, try to have another one prepared.
Judge, Justice
A judge sits in the District Court (an intermediate court). A justice sits in a Supreme Court (the highest court of each State), or in the High Court of Australia. Judges and justices are usually referred to in court as 'Your Honour'.
A judicial officer who presides over the Local Courts. Magistrates generally hear summary offences, and committal hearings of indictable matters. They were once called 'Your Worship' but in New South Wales magistrates, like judges, are now called 'Your Honour'.
McKenzie friend
This is a tradition whereby an unrepresented accused is permitted by the judge to be assisted and/or prompted by another person. The friend is usually allowed only to advise, and not to act as an advocate. There seems to be no general rule allowing a McKenzie friend; it is determined on a case-by-case basis, at the discretion of the magistrate or judge.
See 'Callover'.
Once you have been charged with an offence, you must enter a plea of guilty or not guilty. The appearance at which you enter a formal plea is called the arraignment. Minor offences may be dealt with at any mention where a guilty plea is entered; if you plead not guilty, times for the hearing will be arranged. It is possible to change a plea of not guilty to guilty at any time; but difficult to change from guilty to not guilty.
In a criminal hearing or trial, it is always up to the prosecution to prove the offence. This must be proved beyond reasonable doubt. For some offences there seems to be a partially reversed onus of proof (for example, if marijuana is found in your car and you deny that it's yours, you should explain that you were unaware of it).
These are court officials who arrange the business of the court. In the past they gave some limited legal advice.
Senior counsel
Experienced barristers, sometimes known as 'silks' (QCs or SCs). These may appear in court with both junior counsel and a solicitor to help them; some appear without junior counsel. They are able to charge as much as $10,000 per day.
Sentence indication
This was a scheme allowing the accused to indicate an interest in pleading guilty to an indictable offence, in order to receive an indication of the sentence likely to be passed. The scheme has now been abolished.
A person who pleads guilty, or is found guilty, may wish to call evidence in mitigation of the penalty; that is, to minimise the penalty. Matters taken into account at sentencing include: age, good character, previous good record, and the circumstances of the offence.
Solicitors, Barristers
A solicitor is the person you hire to prepare your case. In the Local Court, the solicitor will usually be your advocate, while in higher court matters, they will usually hire a barrister on your behalf. Barristers are special advocate lawyers who speak for the client in court. Barristers may now advertise for themselves and deal directly with the client.
Statute law
Law made by the Parliament. Compare this with Common law.
Stay of proceedings
The suspension of proceedings, either temporarily or permanently. A stay of proceedings is usually to prevent an abuse of process, for example, where it would be impossible to find an unbiased jury or to ensure conditions allow a fair trial for the accused.
This is a document that you can serve on any party in proceedings to require that documents relevant to the court case be produced to the court. People can also be subpoenaed to appear in court to give evidence.
Summary & Indictable offences
Summary offences are less serious charges, heard before magistrates, for example, those created by the Summary Offences Act 1988 (NSW). Proceedings for a summary offence are normally commenced within six months of the alleged offence (see Criminal Procedure Act 1986 (NSW), s 179). Indictable offences are more serious charges, dealt with in the District Court, and are usually heard by way of trial before a jury. The charge is laid via an Indictment, setting out the elements of the offence, and the factual details alleged against the accused.
A fabricated unsigned confession, generally created by police.
Voir dire
This is a hearing to determine the admissibility of certain evidence. If one party seeks to admit evidence, and the other party objects, then the matter will be discussed before the judge (without the jury present) to determine the admissibility of the evidence.