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CRIMINAL LAW FOR NORMAL PEOPLE

 Ever feel bamboozled by legalese ( – lawyer-speak) ?

 Got a friend or relative who’s involved in a criminal law case, and want to know what’s really happening, and how to de-mystify all that mumbo-jumbo and procedure you see in the courtroom ?

Well, you CAN feel normal after all.

In this user-friendly guide to the language, terminology and conundrums of criminal law you will find answers to commonly asked questions such as –

Is a magistrate a judge ?
How can do lawyers justify defending crims when they know they’re guilty ?
What’s the difference between a solicitor and barrister ?

The Awful Truth

The first thing to know is that lawyers, judges and court officials are not higher beings. They’re all really a bit strange, and actually it’s you and the other confused-looking people who are normal human beings. And you can take this from an ex-lawyer ( me).

The strange language, and funny costumes of lawyers is really a throwback to European courtly life 3 or 4 centuries ago. In those days it was normal to wear wigs and gowns and cute little bibs. They were the suit and tie of yesteryear.

In those days it really was normal for people in public life to use really cumbersome and pompous words like ‘hereinbefore”, “interlocutory proceedings”, or spray the Latin around: ‘res ipsa loquitur’, ‘ nolle prosequi’, ‘nihil carborundum illegitimi” – actually that last one is not strictly legal Latin. Google it, it’s fun.

Which really sums up what should be your attitude when faced with the secrecy and lack of transparency of the criminal law world. Don’t take them too seriously. And make them talk to you in plain English !

Anyway, these strange customs and outfits – lawyers decided to keep using them long after they went out of fashion and the rest of society had moved out of the Middle Ages. Why ? It’s a power trip. The less we know about them,  the more select and obscure their world seems, the more they can charge for their often over-priced ‘services’ .

What are criminal proceedings as opposed to civil proceedings ?

Criminal law covers everything from an on-the-spot fine for littering, letting your dog do his business in the local park, through to bombing the World Trade Centre. It’s everything for which the State ( the Police, or the Crown, or a government department) can prosecute you for.

Civil law regulates disputes between citizens:
* either real citizens like you or me; or
* corporate citizens such as companies or other bodies ( e,g, Australian Tax Office, Centrelink, Child Support Agency).

If it’s a civil case the citizen is suing either for –
* money ( called damages or restitution ); or something else like
* a restraining order ( e.g. ‘thou shalt not bash up thy wife any more’) or
* an injunction – stuff like
‘ thou shalt  move your fence off your neighbour’s lawn’, or
‘ thou shalt let thy former husband see the kids once a week’, or
‘thou must leave Australia because thou art a smelly dirty refugee’ (alright I didn’t mean that last one personally, I was actually poking fun at certain other people’s prejudices).
When someone sues civilly it’s called an action law, or in some cases, an application .

Of course sometimes the same situation could lead to both criminal and civil cases ( called ‘ proceedings’). If you hit someone about the head and cause them permanent brain damage you will be prosecuted for serious assault, but the victim can also sue you civilly for damages for his/her injuries ( So don’t do it ! Dumb idea).
And even if the ‘basher’ gets off the criminal charge, that doesn’t mean the victim can’t sue. The two are quite separate, and you’re not even allowed in the civil case to tell the judge that the ‘basher’  got off the criminal charge. The 2 sets of evidences in these 2 different proceedings must be kept quite separate. Why ? Well, I’m getting technical here. Better get back to the basics ……… I’ll tell you later if you’re REALLY interested.

Prosecutors, accused, etc ?

In criminal proceedings the prosecution is instituted ( =commenced) by the police ( for the less serious charges), the Crown ( usually called the Crown Prosecutors, or Crown Law in most Aussie states) or by some government agency or department ( e.g. the Environmental Protection Agency might prosecute you spilling nasty chemicals from your factory into a river).

In some cases the prosecution is started off by the police in the lower courts ( called Magistrates’ Courts or Court of Petty Sessions) but then continued in the higher courts by the Crown when it gets to trial stage. More about that later under indictable offences.

Whether the person introducing the charge to the court is a police officer or a  lawyer wearing a penguin suit with a wig, they are called prosecutors. The person who’s charged is called in Australia the defendant. You have probably heard the word accused too, but that’s really an old-fashioned English legal term that we don’t use any more in Australia. Same thing as defendant.

Types of lawyers; solicitors, barristers etc

Let’s talk at terminology for starters –
Attorney – is what Americans generally call lawyers. We don’t call them that in Australia. We do have a special document called a ‘power of attorney’, but that’s something else
Solicitor – a mainly office-bound lawyer. Most lawyers are solicitors. Lots more detail below
Barrister – a mainly courtroom-bound lawyer. Lots more details below
Counsel – another word for a barrister, e.g. counsel for the prosecution, counsel for the defendant
Counsellor – another American word for a lawyer
Silk – a silk is a colloquial term for the highest level of barrister, called in Australia either a Q.C. ( Queen’s Counsel) or S.C. ( Senior Counsel). Silks have to be especially appointed by the government, after years of practising as a barrister and becoming recognised for a high level of expertise. When a silk gets approved, it’s called ‘taking silk’, from the old tradition of silks being allowed to wear robes made of that substance, while lesser counsel just wore cotton.
Legal practitioners – this is the official Aussie term for a lawyer in practice, i.e. a barrister or solicitor

There are other lawyers too: judges and magistrates (‘maggies’ as they’re sometimes affectionately called are also judges, but in the bottom stratum of courts), and legal academics who work in universities teaching and writing learned research papers and legal journal articles to comment on and sometimes also to influence a change in the law ( e.g. the writings and research of legal and other academics was crucial to Australia’s landmark Mabo decision on native title).

But the 2 most common types of lawyers are Solicitors and Barristers, so we’ll look at them a bit more closely.

SOLICITORS

Solicitors mostly work in their law firm office. They do mainly paperwork, fixing up and preparing documents for transactions, interviewing, writing endless letters, emails and memos, and now and again going to really, really boring lawyer’s drinkies, though the scotch is generally first-class.

They do some court work too, particularly criminal lawyers, who might spend most of their day down at the courts. But they generally leave the arguing in court to the barristers, because that’s their speciality.

BARRISTERS

Barristers mostly don’t work in a law-firm but independently in a special barrister’s office called chambers. If a solicitor says s/he has to ‘go off to chambers’, it doesn’t mean s/he’s going for a lie-down ( a lawyer would rather suicide than have a nap in the middle of the day). It means s/he has to go and discuss a case with a barrister.

Barristers are paid to be brainy and/or have the gift of the gab. Whilst they are best-known for arguing the more difficult court cases, they also spend a lot of time writing expert opinions for their clients on complicated questions of law which might never ever get to court. Governments and very rich companies generally go to get an opinion from a barrister if they want to know if they can or cannot do something they suspect is naughty or illegal.

If a lawyer is said to be ‘going to the bar’, it doesn’t mean s/he is getting the next round of drinks ( though they frequently do that after a hard day in court, or hitting the books doing research). It means s/he is commencing work at The Bar ( as a barrister).

To put it really simply, barristers are the thoroughbreds of the legal world, whereas solicitors are more paper-shufflers.

Other helpful analogies ? A solicitor is like –
* the butler or footman who has to organize the horses, weapons, refreshments and other stuff for the hunt for his English nobleman boss ( the barrister) who gets to do the main game, the starry stuff, shooting those rabbits, foxes or pheasants’; or
*the gritty foot-soldier who enables the general to bathe in the glory of victory.

I think you’ve got the picture by now. As you can tell, I used to be a solicitor. I can sympathise.

Some more terminology

Yeah, why not ? Law’s no fun without lots of obscure and totally dated language, so here goes:
Applicant – someone who applies ( deerrrr !!) to a court for an order or some other legal remedy
Appellant – if you lose a court and then appeal against the decision in a higher court, you are called the Appellant ( literally -‘the appealing one”, though you might not be very appealing at all)
Respondent – the party who opposes an application or an appeal, e.g. if I have bashed my wife and she apllies to the court for a DVO ( domestic violence order), then she is the Applicant and I, as well as being a vicious misogynist, am called the Respondent. Likewise, if I have won a court case but the losing party appeals the decision, I am also called the Respondent in the appeal proceedings.
Plaintiff – this term has nothing to do with criminal law, but I mention it because you hear it frequently in relation to court cases. A Plaintiff is the party who commences a civil (not criminal) case against someone
Mention – this means a (usually brief) house-keeping court appearance by the parties in a criminal case in order to set a further date for something more substantial. It might, for example, involve the setting of a trial date, or reporting to the court about some essential document or evidence that has to be presented ( e.g. advising when a probation officer’s report will be ready for sentencing).
Committal proceedings – these are an intermediate stage in dealing with more serious charges which can’t be dealt with in the lower ( Magistrates’ Courts). Before a Mags Court decides to send a charge up to the Higher court ( County, District or Supreme Court depending which aussie State or territory you’re in ,a dn the seriousness of the case) it carries out a review of the evidence for the prosecution. It does this in case the charge would be a guaranteed loser and thus total waste of time in the higher court. Cases in the higher courts can involve weeks of valuable and limited court time, and cost the parties 10s or 100s of thousands of dollars. So the Mags Court wants to ensure that it’s worth sending it up. This review of evidence is called committal proceedings. It in no way affects the strength of the prosecution’s evidence, nor does it involve any judgement or comment theron by the lower court. It’s really more of a filtering administrative measure. But it can help the defendant because his/her lawyers get to test out the prosecution’s case before the actual trial.