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Dobraszczyk, Caroline --- "Comparative analysis of civil and criminal procedures" [2017] PrecedentAULA 62; (2017) 142 Precedent 51

COMPARATIVE ANALYSIS OF CIVIL AND CRIMINAL PROCEDURES

By Caroline Dobraszczyk

INTRODUCTION

There are of course similarities and differences between preparing, organising and running a civil case and a criminal case. Legal practitioners who specialise in litigation often make a choice as to which type of litigation they wish to practise in, no doubt due to the ever increasing complexities in the law of procedure surrounding both. This article will go over some of the similarities and some of the differences that apply to both types of litigation in New South Wales (NSW) and perhaps show how interesting the similarities and differences are.

STARTING A NEW CASE

All civil litigation must start with some form of initiating process and one must follow the rules as to format and filing. The Supreme Court of NSW requires a statement of claim or a summons and there are rules as to their format and what each must contain.^[1] There are then more complex rules about who can actually commence proceedings and their representation. For example, sometimes there are issues as to the capacity of, say, an executor, and of course who or what is the defendant.^[2] The Federal Court Rules 2011 (Cth) (FCR) impose similar requirements regarding initiating documents and what they must contain in Federal Court civil litigation.^[3]

In the world of criminal law, all matters commence in the Local Court by the filing and issuing of a court attendance notice (CAN).^[4] The CAN is the document that contains the charge or charges and at first, one may think it must be simpler to draft than a statement of claim. Charges usually follow the wording of a charge section, which are usually short. However, particulars need to be provided, such as the date the offence is alleged to have been committed, at what place the offence allegedly occurred, and sometimes further particulars regarding, for example, dishonesty. A CAN or indictment can be more complex if there are many offences or if there is more than one complainant/victim.

The drafting of any initiating document for both types of litigation depends always on the complexity of the matter. There are of course potentially serious consequences for imprecise, inaccurate or legally deficient drafting in both types of litigation. In civil proceedings, there is the availability of summary judgment or a stay of proceedings, or indeed the fact that your case or defence will not be made. In criminal proceedings, there is also the availability of a stay application or arguing that a charge is, for example, duplicitous. This is more likely to occur in fraud or similar offences, and really means that a charge includes more than a single offence or that the conduct on which the charge is based would establish the commission of more than one offence. Such a charge will usually be the subject of an application to specify the one offence that is alleged with each charge, as a matter of fairness to a defendant. Imprecise drafting can mean that a charge will fail because certain particulars (for example, alleged specific conduct) or the elements of an offence cannot be made out, based on the evidence. A verdict of not guilty can only be directed by a trial judge if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.^[5]

All rules provide instructions for service.^[6] It is interesting to note also the Federal Court (Criminal Proceedings) Rules 2016 (Cth), which deals with criminal proceedings in the Federal Court for summary offences under various Commonwealth Acts and criminal cartel trials. The Rules provide for the filing and procedure of summary prosecutions, prosecutions on Indictment, the appeal process, bail applications and empanelling juries for criminal cartel trials.

PRE-TRIAL ISSUES

All rules relating to civil and criminal trials provide for a subpoena process.^[7] Further, any pre-trial process is available by way of motions or interlocutory application.^[8] Both the FCR and the Uniform Civil Procedure Rules 2005 (NSW) provide for orders for discovery (including preliminary discovery) as well as orders for interrogatories and notices to produce.^[9]

In criminal proceedings, it is of course the prosecution that must provide disclosure and there is no obligation on behalf of the defence to disclose (subject to compliance regarding notice of an alibi or notice of intention to adduce evidence of substantial mental impairment, for example.^[10] Defendants in criminal proceedings usually issue subpoenas in preparation for the case, especially for cross-examination of prosecution witnesses. Therefore, they do not rely totally upon disclosure documents from the prosecution. However, it is important to point out that the burden of proof (of beyond reasonable doubt) rests on the prosecution and the defence have no burden to prove or disprove anything except in relation to defences.

Practitioners also know that all courts in both civil and criminal proceedings conduct lists for the management of proceedings, essentially so that a case is ready for hearing at the time a hearing date is fixed. Some pre-trial issues are dealt with before the actual hearing of the substantive issues in both civil and criminal matters. However, many pre-trial criminal issues are often dealt with just before a jury is empanelled, or before a judge or magistrate hears the substantive issues. Some of the more common pre-trial applications in criminal proceedings are applications for separate trials (where there is more than one accused or more than one complainant) an application that evidence be used as tendency or coincidence evidence, applications for judge-alone trials (for NSW offences) and of course numerous exclusion of evidence applications. Criminal proceedings also have the complex issue of bail which may need to be determined.

THE ACTUAL HEARING/TRIAL

It is here that criminal and civil proceedings begin to differ. Criminal proceedings have two different processes depending on whether charges are being dealt with summarily or on indictment. Summary matters are largely conducted in the Local Court and include proceedings for indictable offences that are being dealt with summarily. Section 6 of the Criminal Procedure Act 1986 (NSW) (CPA) specifies that certain offences may be dealt with summarily. Chapters 4 and 5 of the CPA provide for the specific law of procedure for summary matters. The CPA provides for a CAN and service rules of the CAN. An accused person may lodge a written plea of guilty or not guilty.^[11] If there is a not guilty plea then a brief of evidence must be served at least 14 days before the hearing. Adjournments can be granted and the court can determine the matter even if the accused person is not present, however, the court must be satisfied that the accused person had reasonable notice.^[12] The court may either convict the accused person or dismiss the matter.^[13] The Court then determines a sentence. Costs may be awarded to accused persons in limited circumstances.^[14] Further, professional costs may be awarded to the prosecutor.^[15]

In indictable matters, the procedure is more complicated. Such matters are dealt with in the District Court or the Supreme Court. Chapter 3 of the CPA provides the laws in relation to indictable procedure. Indictable matters proceed in the Local Court by the Magistrate conducting a committal proceeding. Section 62 of the CPA provides that the Magistrate must take the prosecution evidence ‘at its highest’ and determine whether the prosecution evidence is capable of satisfying a jury properly instructed, beyond reasonable doubt, that the accused person has committed an indictable offence. The Magistrate may discharge the person if they are not of this opinion. Section 63 provides that after all the prosecution evidence is taken, if the Magistrate is of the opinion the evidence is capable of satisfying a reasonable jury properly instructed beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge. The Magistrate then considers all the evidence and determines whether there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person. If the Magistrate is of this opinion, the accused person is committed for trial.^[16] The matter is then referred to the District Court or the Supreme Court for the trial process to commence. The prosecution evidence for committal proceedings is tendered via statements except where notice is given that a witness is to attend and be cross-examined in relation to limited matters.^[17] If an accused person pleads guilty in the Local Court to an indictable offence, the person is committed to the District Court for sentence.

In the District Court or the Supreme Court, an accused person is first arraigned (this is after the committal hearing). That is, the indictment is read to them and the accused person is required to plead to it. If s/he pleads not guilty, the accused person will then stand trial. There may be a number of arraignments before the accused is placed in charge of a jury (where a jury is being used). Thereafter, the trial process commences under a verdict by the jury or determination by a judge in a judge-alone trial.^[18] Proceedings for all offences but murder are generally heard in the District Court. Proceedings for murder and those for which a life sentence may be appropriate are heard in the Supreme Court.^[19]

In civil proceedings, the examination-in-chief for any witness is largely based on tendered affidavits and then cross-examination can occur Notice of which witnesses are required for cross-examination is usually necessary.^[20]

In criminal proceedings, examination-in-chief can only be conducted orally unless there is agreement to the tender of a statement (which usually only occurs for non-contentious issues). This occurs both in the Local Court for summary matters, and in the District Court or Supreme Court for matters on indictment. From an advocacy point of view, the mastering of the rules in relation to examination-in-chief are very important for prosecuting criminal practitioners, as is the mastering of re-examination, because cases stand or fall on the evidence in chief.^[21] For criminal defence lawyers, the art of cross-examination is important, as well as examination-in-chief, if there is to be a defence case. Understanding re-examination is also very important in civil proceedings, which of course only occurs as an oral process.

Opening and closing addresses are also perhaps a little different in civil and criminal trials, although the basic rules are the same: the opening informs the court or jury as to what the facts are and what is likely to be in issue, and some legal principles may be developed.

The closing address is the practitioner’s argument; their chance to persuade the court or jury why their case is made out based on the legal principles and the evidence as heard in the case. They will be different in civil and criminal proceedings, especially if there is a jury. Criminal proceedings have the additional complexity of sentence proceedings, with separate laws for both state and federal offences. Civil proceedings have the additions of costs issues and mediation issues.

APPEALS

Of course both criminal and civil proceedings provide for an appeal process.^[22]

CONCLUSION

There is no doubt that the complexities surrounding the procedure of both criminal and civil proceedings keep any practitioner busy!

Caroline Dobraszczyk is a Barrister at Trust Chambers in Sydney. One of her principal areas of practice is in criminal law (including white-collar crime and matters of a quasi-criminal nature) and confiscation of assets proceedings. PHONE (02) 9264 9444 EMAIL carolined@trustchambers.com.au. Liability is limited by a scheme approved under Professional Standards Legislation.

^[1] Uniform Civil Procedure Rules 2005 (NSW) (UCPR) pts 4, 6, 14-17.

^[2] UCPR pt 7 and pt 6 div 5.

^[3] Federal Court Rules 2011 (Cth) (FCR) pts 2, 8, 9, 16.

^[4] Criminal Procedure Act 1986 (NSW) (CPA) chs 3, 4.

^[5] Doney v R [1990] HCA 51; (1990) 171 CLR 207.

^[6] FCR pts 10, 11; UCPR pt 10; CPA ss52, 177.

^[7] FCR pt 24; UCPR pt 33; CPA ch 4, div 3; District Court Rules 1973 (NSW) (DCR) pt 53 div 2.

^[8] See eg FCR pt 17; UCPR pt 18; DCR s53.10.

^[9] FCR pts 20, 21; UCPR pts 21, 22.

^[10] CPA s143.

^[11] Ibid, s182.

^[12] Ibid, ss190 and 196.