GLOSSARY OF USEFUL LEGAL TERMS: Queensland government, Office of the Director of Public Prosecutions Annual Report 2011 – 2012
accused The accused is a person who is alleged to have committed an offence. In this report, a convicted person is also referred to as the accused for ease of reference.
appeal (upheld/dismissed) This is the name given to the process by which all or part of a court’s decision is reviewed. Appeals are made to and determined by a court higher than the court which made the decision appealed against. The judicial hierarchy of courts in Queensland, from highest to lowest is the High Court of Australia, Court of Appeal (Queensland), Supreme Court (Queensland), District Courts (Queensland), and the Magistrates Courts (Queensland).
Appeals can be against sentence or conviction or both. If, on appeal, a lower court is found to have made an error, the appeal is upheld and the decision of the lower court is quashed or overturned. In the case of an appeal against sentence, a different sentence will be substituted.
With respect to an appeal against conviction, a new trial can be ordered or a verdict of acquittal entered. If no error is found or, in some cases, if there is no substantial miscarriage of justice, the appeal is dismissed and the decision of the lower court is confirmed.
appear/appearance When a person physically goes before a court that person is said to appear before the court. When that person’s lawyer physically goes before a court on that person’s behalf, that lawyer is said to have appeared for that person. The action of that person or that person’s lawyer, as the case may be, is called an appearance.
bail Once a person has been arrested and charged with an offence, that person must remain in jail unless that person has legal authority to remain out of jail. When a person receives such authority that person is said to have been granted bail. Bail may be on the accused’s own undertaking to appear or with sureties and subject to conditions.
Circuit Court Circuit Court is the name given to the Supreme Court when it holds hearings elsewhere than Brisbane, Rockhampton, Cairns or Townsville. charge Charge is the name given to the formal record of an allegation that an accused has committed an offence. A person is usually charged by police and once charged that person must appear before a court at a specified place, date and time to be dealt with according to law.
committal (hand up) A hand-up committal relates to a committal hearing at which the legal representative of the accused consents to all of the statements of witnesses being handed up to the magistrate without any of the witnesses then being required to give oral evidence.
committal hearing (committed for trial / committed for sentence)
A committal hearing is the name given to the procedure by which a magistrate determines if there is a prima facie case that is sufficient evidence to order that an accused person stand trial before a judge and jury. If the magistrate determines there is sufficient evidence, then the magistrate orders the accused to stand trial before a court (made up of a judge and jury) which has jurisdiction to try the accused. This will be a District Court or the Supreme Court.
The word ‘committal’ is used because, when a magistrate makes such an order, the person is said to have been committed for trial. The word ‘hearing’ is used because most of the evidence is given by word of mouth (testimony) and the magistrate listens to, that is hears, that evidence.
If at the committal hearing the accused admits to having breached the law as charged, the magistrate will order the accused person to appear before a District Court or the Supreme Court to be punished (sentenced) according to law. Such an accused is said to have been committed for sentence.
complaint and summons When an accused is to stand trial or to be sentenced in a Magistrates Court, the document used to set out the charges is called a ‘complaint and summons’. The document is so called because in the first part, a person, usually a police officer, ‘complains’ that the accused has committed an offence, and in the second part the accused is called or summoned to appear before the Court.
Crown The Crown refers to the Queensland Government representing the community of Queensland. All criminal proceedings are brought in the name of the Queen.
depositions The evidence heard by the magistrate at a committal hearing is recorded on tape. When a person is committed for trial or committed for sentence, the tape recording of the committal hearing is transcribed onto paper. This transcript, along with any other evidence
tendered at the committal hearing, such as photographs, maps and statements, are collectively
called ‘the depositions’.
Director The Director means the person appointed as the Director of Public Prosecutions for the State of Queensland.
discontinuance Discontinuance is the name given to the process by which it is decided and formally recorded that an accused is not to be prosecuted further and the criminal proceedings against an accused are to cease. Practically speaking, this means an accused no longer needs bail to remain out of gaol and will not stand trial or be sentenced. If an indictment has been presented, a written record of the discontinuance is entered as well. This record is called a nolle prosequi, Latin for ‘I do not wish to prosecute’. If the indictment has not been presented, the discontinuance by way of the filing of what is known as a ‘No True Bill’ in the Court Registry.
ex officio indictment This is the name given to an indictment presented to a court without a person being committed for trial or committed for sentence.
indemnity Indemnity is the granting of an assurance that no criminal proceeding will be taken or continued in relation to criminal acts admitted by the person to whom the indemnity is granted in order to obtain the evidence of that person (see also ‘use-derivative-use undertaking’
.
indictment Indictment is the name given to the document which sets out the offence or offences that an accused is alleged to have committed and in relation to which the accused must stand trial and be sentenced if found guilty. Indictments are presented to (lodged with) the Supreme Court or a District Court to notify the court of the offence/s with which the accused has been charged and in relation to which the accused must stand trial and be sentenced, if found guilty.
indictable offence If an accused has been charged with an offence and has an initial right to stand trial before a judge and jury, the offence is an indictable offence. This is so, even though the accused or some other person may determine that the accused will stand trial before a magistrate only.
mention/adjournment A mention is an appearance before a court which is list/sittings not for a specific purpose such as trial, sentence or committal hearing. It is a process to allow the court
and the parties to monitor the progress of charges. Usually once a person has been charged, the charges will be mentioned at least once so a date for the committal hearing or trial may be set.
The list is the written record kept by a court of all mentions, trials, sentences and bail applications (and committal hearings in the case of a Magistrates Court) to be heard by that court. The list is kept in a form similar to that of a diary.
The District and Supreme Courts are available only between certain dates to hold trials or pass sentence. These periods are referred to as ‘sittings’. For example when a person is committed for trial, the magistrate may say something similar to ‘you are committed for trial to the sittings of the Supreme Court of Queensland at Brisbane commencing 30 January 2012’.
nolle prosequi See ‘discontinuance’
offence An offence is any act or omission which is prohibited by the law of Queensland and for which you will be punished. Offences may be indictable or summary. Summary offences can be heard and determined in a Magistrates Court only.
Office of the Director of Public Prosecutions The Office of the Director of Public Prosecutions is the statutory body within the Department of Justice and Attorney-General under the Director’s control. All Crown Prosecutors are employed in the ODPP.
plea A plea is the formal response of an accused at trial or sentence to an indictment. At the accused’s trial or sentence the indictment is read out to the accused (the accused is ‘arraigned’
and the accused then formally responds by saying he or she is ‘guilty’ or ‘not guilty’.
prosecutors Prosecutors are barristers authorised to appear in the superior courts on behalf of the Crown. The term also includes both Crown Prosecutors from the Office of the Director of Public Prosecutions and members of the private bar who hold a commission toprosecute and are briefed to do work for the Director.
summary trial A summary trial is a trial held in a Magistrates Court before a magistrate sitting alone.
superior courts Superior Courts mean the District Court and the Supreme Court.
trial ‘Trials’ is the name of the hearing where all the evidence which supports the charge against the
accused and the evidence advanced by the accused by way of defence is heard by the judge and jury. Subsequently, having regard to that evidence only, the jury decides whether the accused is guilty or not guilty. If it is determined that the charge is proved beyond reasonable doubt, the jury finds the accused guilty. This is called a verdict of guilty. If the court is satisfied that the jury has reached its verdict after proper deliberation and that it is lawful to do so, it will accept the verdict and formally convict the accused and then sentence the accused. In the case of a trial before a magistrate, the magistrate will consider the same issues as the jury before he or she reaches a guilty verdict and will then proceed to sentence the accused. If it is determined that the charge has not been proved then the magistrate or the jury finds the accused not guilty. This is called a verdict of not guilty. The judge or magistrate will then record that the accused has been acquitted and the accused is then released or discharged.
A judge alone trial is one conducted by a Judge in the District or Supreme Court without a jury.
Use-derivative-use undertaking This is an undertaking given to a potential witness on
the understanding that the evidence to be given by the particular witness will not be used against him/her in any criminal proceeding, nor will any evidence discovered as a result of the giving of such evidence be used against him/her (see also ‘Indemnity’
.
voir dire Voir dire is the term given to a ‘trial within a trial’ which is conducted in the absence of the jury to enable the trial judge to determine matters of law.