SCB LEGAL
SCB Legal is dedicated to simplifying the law for you. We remove the often cumbersome legal jargon and explain legal terms in an easy to understand manner. Demystifying the law and defining complex legalease is how we make Australian law approachable.
A legal dictionary can prove rather overwhelming, so the team at SCB Legal decided to create our own law dictionary and in plain English. We always think about our clients, as well as prospective clients who are trying to be best informed about the law.
While Google is a wonderful resource that helps you find and better understand many terms and in a variety of industries, the law is different. Australians are governed by the Westminster system of law, so it’s inaccurate reading legal terms and definitions that are about US law for example. Similarly, even in our own country, there exists both federal and state legislation. The definitions and application of the legislation may vary, based on the state or territory in which you live. Your individual circumstances will determine what laws apply to you. If you need advice, assistance or representation specific to your situation, contact us via email, via our online booking system or by calling one of our offices at Penrith or Blacktown.
Another aspect that we’ve been told is difficult, is actually finding what you’re looking for. As is often the case, you know the area of the law to which the legal term applies. However, it’s often complicated remembering the phrase, which is necessary for you to do, in order to consult a legal glossary. We thought it was very important to address these issues. This is why we intend to better index the law by providing you with the terms and phrases arranged via area of the law and alphabetically.
The following list is always expanding based on your needs and recommendations. It will continue to evolve over time, so check back regularly to learn even more valuable legal terms and phrases.
Apology Letter
An apology letter is a great way to demonstrate to the Court that you’re remorseful/sorry about why you are appearing before the Court. This ‘sheds some light’ on the facts, as to the events leading up to committing the offence/s, and provides the Court with some information about your circumstances.
AVO
AVO stands for Apprehended Violence Order. An AVO is an Order by the Court to protect a person from another person. An AVO can have many different conditions attached to it. An AVO is civil (not criminal) unless and until it is breached. If a person breaches the AVO, then they will face criminal charges. The maximum penalty for breaching an AVO includes a Fine of $5,500 and/or up to two years imprisonment. If a person is charged with a domestic violence offence and/or has pleaded guilty or been found guilty, the law says that the Court must make an AVO unless the Court is satisfied it is not required. There are two types of AVO’s; ADVO and APVO. See below for the difference.
ADVO
An ADVO also known as an Apprehended Domestic Violence Order is an Order protecting a person from another person that they have lived with, are related to, in an intimate relationship with, or who have previously been in any of these situations.
APVO
An APVO is also known as an Apprehended Personal Violence Order. This Order is made for the protection of people who have not had any form of domestic relationship, such as neighbours & work colleagues.
Arraignment
When a person’s matter is moved from the Local Court to the District or Supreme Court, they must be “arraigned”. This occurs on the first Court date in the District or Supreme Court and is where the Judges Associate will read out the charges against you and you will then have to answer and tell the Court whether you are pleading guilty or not guilty.
Brief Orders
If you enter a plea of not guilty, the Court will make brief Orders. This is where the brief of evidence is either served on you if you are self-represented or if you have a lawyer then Service of the brief will usually be on your legal representatives. The brief of evidence will include all of the evidence, including witness statements, DNA, CCTV footage etc. that the Police/Prosecution will rely on to prove their case. Upon the brief being served, your matter will return to the courts for you to confirm whether you are still pleading not guilty and to get a hearing date.
Beyond Reasonable Doubt
This is a much higher threshold than the civil test of balance of probabilities. This is the test in criminal matters. The prosecution has to onus to prove that you are guilty of the offences you are charged with, beyond a reasonable doubt. The test is that there is no other logical explanation that can explain the facts (conduct/cause/outcome), than what the prosecution allege. If there is a reasonable explanation for the facts/evidence and a reasonable possibility that the person is not guilty then that person should be found not guilty. The prosecution relies on the brief of evidence to satisfy this standard.
Character References
Character references are another great way to show the court who you truly are and how this offence/s was out of character.
Committal
Committal proceedings is the process that must be followed when a person commits an indictable offence or strictly indictable offence and the DPP chooses to take over the matter. The Police must give you or your lawyer a copy of the brief of evidence. After the brief of evidence has been served, the DPP must provide the Court with a Charge Certificate. This is where the DPP goes through all of the evidence and determines whether they have enough evidence to prove the charges against you and/or whether there are other charges you should be charged with. After your lawyer receives the Charge Certificate, they can ask the Court for permission to question the witnesses that have given evidence against you. After hearing the evidence, the Magistrate may dismiss your charges at this point. If the Magistrate does not dismiss your charges then the next step is for your matter to have a Case Conference. At the Case Conference, your lawyer and the DPP will discuss your matter and try to reach an agreement. This could include making offers to plead guilty to some of the charges if other charges are withdrawn. After the Case Conference, the DPP has to give the Court a Case Conference Certificate. The Case Conference Certificate has any offers made by the Prosecution (DPP) and any agreed facts if you plead guilty. The Case Conference Certificate is confidential but if you plead not guilty but are found guilty in the District Court or Supreme Court after your Trial, the Judge can look at the Case Conference Certificate to see whether you are entitled to any discounts on sentence. After the Case Conference, the Magistrate will ask if you are pleading guilty or not guilty. If you are pleading not guilty then your matter will be sent to the District Court or Supreme Court for Trial. If you are pleading guilty, depending on the charges and any agreement with the DPP, your matter may stay in the Local Court for Sentence or you may be “committed” / (transferred) to the District Court or Supreme Court to get a date for Sentence. If you plead guilty, then you are entitled to a 25% discount on your sentence. If you plead guilty after you have been committed to the District Court or Supreme Court, then you may still receive a discount on your sentence (usually around 10%-15%). If you plead guilty within 14 days before your Trial then you may still receive a discount on sentence but this will be less than what you would have received if you pleaded guilty sooner.
Cross-Examination
This is where your lawyer has the opportunity to ask the prosecution’s witnesses questions about their evidence. It also enables them to pose questions and statements to them in an attempt to discover the truth. This is also where the prosecutor is able to ask the defence’s witnesses questions about their evidence and to pose questions and statements to them in an attempt to establish the truth.
Disputed Facts Hearing
A disputed facts hearing is when the parties do not agree on the facts alleged by the Police/victim/witness. If you agree to the charges but not the facts, then there will be a hearing where the Court will hear all of the evidence and make a decision about the facts of the case.
DPP
The DPP also represents the State/Territory, just like the police prosecutors. Their role is to remain impartial and to present the evidence to the Court in a fair way. The DPP solicitors are lawyers (this is compared to police prosecutors who sometimes are not lawyers but have done a course which allows them to appear in the Local Court). The DPP is usually only involved when dealing with serious matters. Unlike a police prosecutor, the DPP can appear in the Local, District, Supreme Court and any other higher Courts.
DPP Election
Depending on the seriousness of the offence, the police prosecutor may refer your matter to the DPP. The DPP will look at the charges and evidence and will then make a decision about whether they are going to “elect” to deal with the matter. If the DPP makes an “election”, they will take over your matter after the brief of evidence has been served. Each Court usually has a specific day for dealing with these types of matters. Depending on the charges, the DPP can choose whether to keep your matter in the Local Court or have the matter dealt with by the District Court or Supreme Court.
Examination In Chief
This is where the prosecutor calls evidence from their witnesses (victim/police/observers) firstly and then the defence lawyer will call evidence from their witnesses (offender/observer).
Extension Of AVO
When an AVO is about to expire and if there have been breaches of the AVO, or there is an ongoing need to protect the person, it is recommended to apply for an extension to the AVO. You can do this two ways, by either police or privately. However, you will need to apply well before the expiration of the current AVO.
Hearing
Where a plea of not guilty has been entered, the matter will proceed to hearing. This is where the Court will hear all of the evidence in your case and make a decision about whether you are guilty or not guilty of the charges. It is extremely important to have as much evidence as you can prior to this date.
Indictable Offence
An indictable offence is a more serious charge than a summary offence but is not the most serious charge (see strictly indictable). The laws in NSW have a table that sets out what offences are indictable. There are two types of indictable offences, called T1 and T2. T2 offences are usually less serious than T1 offences. Unlike the summary offences, these charges may be dealt with in the District Court. Usually these offences will only progress to the District Court if the person pleads not guilty.
Pleas
There are two ways you can plead, either by entering a guilty plea or entering a not guilty plea. Even if you have more than one charge, you can enter separate pleas for each charge. Under Australian law, if you enter a plea of guilty at the earliest opportunity, you can receive a discount of up to 25% on sentencing.
Police Prosecutor
The police prosecutor is the person acting on behalf of the State/Territory. They are usually former police officers and sometimes do not have legal qualifications. Their role is to be impartial and to assist the Court in dealing with your matter. They are responsible for proving to the Court that you committed the offence with which you have been charged. If you plead not guilty, they will present evidence to the Court from the victim, complainant, witness and police. Police prosecutors only appear in the Local Court.
Reply
Reply is when you return to the Court to confirm your plea of not guilty or to enter a plea of guilty. If the brief has still not been served or there are outstanding items, then further brief Orders may usually be made and the matter will again be listed for reply.
Representations
Representations are a form of negotiation in criminal proceedings. Your lawyer will write to the Police and seek to have the facts amended, or ask for some or all of the charges to be withdrawn. Your solicitor may make an offer for you to plead guilty to some charges, or less serious charges if the Police withdraw other charges. The representations that your lawyer writes will depend on the circumstances of your case.
Sentencing
Once facts have been agreed upon, either because you accept the facts or because your lawyer successfully negotiated the facts or the Court determined your facts, and plea/s are entered, your matter will proceed to sentencing where the Judge will determine what penalty you should receive. It’s of importance that you are prepared prior to this Court date. It is extremely important to have an apology letter and character references in support of your sentence. Depending on your circumstances, your lawyer may recommend you do a course/s or counselling.
Show Cause (Bail)
If a person is on bail or parole and/or commits certain offences (some firearms, sexual assault and terrorism charges are examples of these types of offences), there is a presumption that the person should be refused bail unless they can show valid reasons why they should not be refused bail. This may include someone’s health, including mental health.
Strictly Indictable (“SI”)
Strictly indictable offences are the most serious offences with which a person can be charged. An example of this type of offence is murder. These offences can only be dealt with in the District Court or Supreme Court. Your matter will be transferred to the District Court or Supreme Court for Trial or Sentence, after the committal process in the Local Court. The actual charge will determine which Court your matter will be heard in.
Strict Liability (Traffic)
It is usually the prosecution’s job (police prosecutor or DPP) to provide the Court with the evidence, in order to prove that a person is guilty of the offence. It is not the defence’s job to prove that the person did not commit the offence. However, for offences involving strict liability, states that the onus of proof is on the defence to prove that they did not commit the offence. These are predominantly traffic related offences.
Submissions
Submissions can be either oral or written, or can be a combination of both. This is what you say that can have a significant outcome toward the judgement you receive. Submissions include giving a summary of the evidence, helpful information for your case, the weaknesses and strengths of the case and why a certain decision should be made.
Summary Offence
A summary offence is where the charges brought against you can only be dealt with in the Local Court. The prosecution cannot choose to have your matter handled by the District Court or Supreme Court. These are less serious charges such as trespassing.
Surety
A financial security for release until the hearing or trial. This may be a specific sum of money or other security, which serves as a guarantee that the person in custody will attend the hearing or trial. A person can also agree to forfeit money if there is a breach which means no monetary handover is required prior to release.
Affidavit
An affidavit is a written statement where you present all your evidence to the Court. It is vital to include all relevant information and evidence in support of your position. If the other side has made false allegations, you will need to respond to them here.
Ex Parte
This refers to the process of dealing with an application in the absence of one of the parties and/or without serving the other party with the application. An example of this is where you are seeking an urgent recovery Order and the serving of the application will cause delay and put the children at risk. You will usually ask the Court to deal with the application and make Orders ex parte therefore being made in the absence of the other party and without giving notice/serving the party with the application.
Onus/Burden Of Proof
This is defined as proving that the allegations are true. In criminal matters, it is usually the prosecution that has to prove you committed the offence. However, in civil cases, the burden is on the plaintiff to prove that what they allege is true.
Service
This is the process of providing the other party with your documents. This provides them with notice of your application, evidence and position. There are many different ways to serve a person with your documents. The way in which you must do this will depend on the type of documents as well as the type of application you are serving.
Standard Of Proof
This is the threshold of proving that the allegations are true. This is the test that the person making the allegations (prosecution in criminal matters and plaintiff in civil matters) must satisfy before the Court can accept that what they say is true. In criminal matters, the standard of proof is beyond reasonable doubt, whereas in civil matters, the standard of proof is on the balance of probabilities.
Subpoena
This is the process of requesting a person to attend the Tribunal/Court to give evidence and/or requesting a person to provide the Tribunal/Court with specific documents. If you believe that a person is unlikely to attend Court and give evidence without the Court ordering them to attend, then it’s a good idea to subpoena the person to attend. If you require documents to support your application then you should subpoena those documents for example you may require documents from the other person’s accountant or psychologist.
In criminal proceedings, the Police will often subpoena the victim and witnesses to ensure they attend Court to give evidence.
You must make an application (form/application is a subpoena) to the Court and the Court must approve this application before the subpoena can be served on the specific person required to attend and/or required to produce documents. The subpoena must be served on the other party and the other party has the opportunity to object to the subpoena if they do not agree with what is being requested. An example of when the other party may object is if the subpoena is not requesting specific documents and is just requesting “all documents held by” the person/company/organisation being subpoenaed. This is known as “fishing” which is not allowed.
When a person objects, their objection must first be dealt with before the person will be made to attend and give evidence and/or before the person is required to produce the documents. If the documents have been produced before the objection is dealt with, you will not be allowed to access the documents until the Tribunal/Court decides that the documents can be accessed.
Substituted Service
Depending on the type of form or application lodged at the Tribunal/Court, the normal way that a person must be served/provided with a copy of the form/application is by having someone hand it to them. This is known as personal service. When a person cannot be located or are avoiding service, and/or all avenues have been exhausted to try and locate the person and/or serve the person, you can make an application to the Tribunal/Court to have the form/application served on the person in a different way for example by serving it on a person they keep in contact with (friend or family), by posting it to them in the mail or by serving it on them via social media. This process is known as substituted service.
Assumption Of Care
These are the terms used when DCJ (formerly known as DoCS and FaCS) remove children from their parents ie the children are assumed into the care of the Minister. Children are assumed to the Minister’s care when there are reasonable grounds to believe that there are serious risks of the children remaining in the parents care, and that these risks are immediate and that there is no other option to protect the children other than to remove them. The children are therefore considered to be in need of care and protection.
Care Plan
This document sets out the risk of harm to the child and the reasons why the child was removed from their parents. It also sets out what care the child has been receiving and what the future plan is for the care of the child including whether there is a realistic possibility of restoring the child to the parents and if so, how this will occur and if not, why not and how often the child will have contact with their parents each year. This document will also include the contact arrangements for the child to have contact with other family members and siblings (if not living with their siblings) as well as addressing the cultural needs of the child and how these are and will be met.
Department of Communities and Justice
The Department of Communities and Justice (DCJ) was previously known as DoCS and FaCS.
Dispute Resolution Conference
A Dispute Resolution Conference also known as a DRC, is where the Registrar, DCJ solicitor, case workers, parents and children’s lawyer will all come together to discuss the matter. This meeting is confidential unless there is a risk of harm to the children. During the DRC, the parties may discuss whether DCJ believes the children can safely be restored to one or both of the parents, or whether restoration is not supported by DCJ and why. The long term plans and needs of the children will also be discussed during the DRC. A DRC is a way of resolving the matter without having a hearing.
Establishment
This is the first phase in care and protection matters. This is where the Court needs to be satisfied that at the time of the children being removed, the children were in need of care and protection. The Court can make this decision either by consent from the parents or following a hearing of the evidence.
After it is established that the children were in need of care and protection at the time of their removal, the next thing the Court needs to determine is whether there is a realistic possibility of restoration (this is known as the second phase of the proceedings).
Final Orders
The Court can make Final Orders by Consent or after hearing all of the evidence. Final Orders will set out what is to happen to the children on a long term basis until they are 18 years old. These Orders will include who is to have parental responsibility for the children. This may be the Minister or children’s long term carer until the children are 18 years old, if the children are not being restored to their parents, or it may be the parents if the children are to be returned to their parents. Parental Responsibility may be jointly held by the Minister and the long term carers or parents for a period of time. Final Orders may also require DCJ to lodge reports with the Courts after 6 months, 12 months, 18 months etc. to provide the Court with an update on the children’s health, wellbeing, contact and placement. The Court will only make Final Orders if they are satisfied with the care plan and long term placement of the children.
Kinship
This is where the child is placed in the care of a relative or someone close to them as opposed to being in foster care. For Aboriginal children this may mean that they are being cared for by a relative (immediate or extended) or by someone that has a cultural and/or community connection which is shared by that child.
No Realistic Possibility Of Restoration
If it is not in the best interests of the child for them to be returned to their parents then there is usually an Order made that there is no realistic possibility of restoration and therefore there is no way that the children could possibly be safely returned to the care of the parents at that time.
Parental Responsibility
When a child is removed, parental responsibility is usually held by the Minister (DoCS/FaCS/DCJ) until the matter is dealt with on a final basis in which case parental responsibility may go back to the parents or to the child’s carer. This means that the Minister (DoCS/FaCS/DCJ) will make all major decisions relating to the children including their schooling, health, contact with parents and other significant people etc.
Placement
After a child/ren has been removed the Court must be satisfied that the long term placement of the children is safe, stable, nurturing and secure. The law says that the first option is for the children to be placed with their parents when it is safe and in the children’s best interests. Only after determining that this option is not in the children’s best interests, will the Court consider other options including family/kinship, friends or foster care.
Realistic Possibility Of Restoration
This is where the Court determines that it is safe for the children to be returned to their parents and that it is in the best interests of the children to be restored to their parents’ care.
Restoration
This is the process of returning the children to their parents’ care.
Risk Of Serious Harm Report (ROSH)
This is a report received by DCJ (formerly known as DoCS and FaCS) which states that the children are at risk. These reports may be made from a person with mandatory reporting obligations for example a school, it could be made by a neighbour, observer, family, friend or a person wishing to remain anonymous. This report sets out what the risks are which could include physical, sexual and/or psychological harm. The children may be exposed to domestic violence, drugs or alcohol use or perhaps they have been neglected or physically abused. These reports are kept on file by DCJ.
If the risks are not serious or immediate then DCJ may investigate and decide to take no action. There may be the possibility of the risks becoming serious and immediate and so DCJ may investigate and become involved in the family’s life to try and address the risks without removing the children or DCJ may remove the children if the risks are serious, immediate and no other option is available to protect the children.
Once a child is removed, all of the ROSH reports form part of the evidence, even if no action was taken at the time DCJ received these reports.
Safety Plan
If DCJ receives ROSH reports and they become involved in the family’s life, they will usually put together a plan to address the safety needs of the children. If the risks are not serious and/or immediate, DCJ will generally try to address the safety needs of the children without removing the children from their parents. This plan will set out what the safety risks are and how they can be addressed. For example, there may be reports of drug use. The safety report may require the parents to participate in drug testing or complete a drug course. If there has been domestic violence, the safety plan may require the victim of domestic violence not to resume a relationship with the perpetrator and/or not to allow that person to have contact with the children. The safety plan may also require the parents to engage with a service provider to help them learn better parenting skills. If the safety plan is not complied with and the risks to the children are serious and immediate then DCJ may decide that this option is no longer suitable and that the only option is to remove the children to ensure their safety.
