The Trial Process

When a case is taken to court, the process is called a ‘hearing’ or a ‘trial’. The order in which a hearing runs is almost the same for criminal and civil cases.

  1. The representatives of the parties introduce themselves to the court.
  2. The representative of the party that has brought the case to court, presents all of their evidence to the court through having witnesses testifying, often called witness examination.
  3. That evidence can be challenged by the other party through ‘cross-examination’ of witnesses.
  4. The representative of the party that is responding to or defending themselves against the charges, presents their evidence to the court. Again, the other party can challenge the evidence through cross examination.
  5. The representatives then each tell the court what they think the evidence proves and how that is relevant to what has to be proved in the case.
  6. The decision maker makes their decision on what happened.
  7. The decision maker makes their decision on what the penalty or remedy is to be, most often called sentencing in criminal trials.

What process does a court use to deal with a legal dispute?

A court can only deal with a legal dispute at the request of one of the people or organisations affected by the dispute. The process used by courts to resolve disputes is slightly different for different kinds of cases – for example, criminal cases and civil cases have slightly different processes. Even within the criminal law, there is a slightly different process for dealing with indictable offences (more serious offences) and summary criminal offences (less serious offences).

Courts can only decide the outcome of a case using the evidence that is presented in the hearing. They cannot go out looking for other evidence or calling witnesses. This is because Australia has an ‘adversarial’ legal system.

In order to reach the decision at the end of a hearing, the court has to identify what laws are relevant to the situation and then how those laws apply in the particular situation. To do this the court relies heavily on the parties to point out what laws are relevant and how those laws should be applied to the situation.

Except in very limited cases – such as cases involving children or cases involving national security – the hearing of cases is public. This means that anyone can walk into the court and stay to listen to the hearing and the decision. This is an important part of our court system because it means that the process can be seen and understood by anyone and has the elements of natural justice and procedural fairness.

What are the differences between courts and tribunals?

Tribunals are similar to courts because they use similar processes to resolve disputes between parties. Tribunals have many features that are similar to courts, for example:

  • tribunals, like courts, are independent. They are separated from the executive and legislative branches of government;
  • tribunals and courts are open to the public;
  • tribunals and courts have a duty to be transparent by providing reasons for their decisions; and
  • parties have the right to appeal against decisions of courts and tribunals.

Some examples of the differences between courts and tribunals include:

  • tribunals have a more relaxed approach to the rules of evidence than courts;
  • tribunals encourage and often require parties to speak on their own behalf. Lawyers are only permitted in special circumstances;
  • tribunals often specialise in resolving disputes in a particular area – courts generally have the power to hear a much broader range of cases;
  • it is usually much cheaper to resolve a dispute at a tribunal rather than have it litigated at court;
  • tribunals are most often made up of a panel of three people, only one of whom is a lawyer – the other two members are usually experts within the particular field of the tribunal; and
  • members of tribunals are appointed for a fixed period of time, rather than until they reach retirement age.

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