Differences and Similarities between the Australian and American court systems
...als from the Supreme or Intermediate Courts. In Australia, the highest court of appeal from all jurisdictions is the High Court of Australia. The hierarchy of courts also applies to the system of appeals. Appeals are available to the losing side in a civil matter and to the defendant in a criminal matter, from all levels of court. In regards to the other courts within the criminal justice system their jurisdictions are as follows: A criminal case arises from a charge laid by police or other prosecuting authorities, and is an allegation of a breach of the criminal law. A civil case, by contrast, is a dispute between two or more individuals or corporations, in which one side is seeking a legal remedy for an injury or loss from the other party who is alleged to be liable. The courts are arranged in a hierarchy, with the bulk of less serious matters being heard before magistrates and more serious matters being heard before judges. In the civil context, the seriousness of a case is usually determined through the amount of money sought in compensation, while for criminal matters seriousness is determined by the nature of the offence alleged. (Irish Australia on the web, 2004). In the US the constitution has a much larger part in the role of the courts and what they can and cannot do. The 14th Amendment to the Constitution, ratified in 1868, provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Gorin, S., 1997 p30). The U.S. Constitution establishes a system of federalism under which the federal government is granted limited authority, with all remaining authority left to the states. The US court system is composed of multiple autonomous courts. There is the federal court system, an integrated system divided into numerous geographic units and various levels of hierarchy; in addition, each state has its own court system with a system of local courts that operate within the state. Under this dual federal/state court structure, the U.S. Supreme Court is the final arbiter of federal law, while the highest court of each state (usually called supreme courts) has the ultimate authority to interpret matters of the law of its state. When federal constitutional or statutory matters are involved, the federal courts have the power to decide whether the state law violates federal law (Fine, 1999). Rights and Responsibilities of citizens in civil matters and criminal matters When being questioned by the police in regards to a criminal matter a person has the right to not have to go to a police station with police officers unless they are arrested for an offence or are lawfully detained for purposes such as obtaining blood or breath specimens for a drink driving offence. If a person is being questioned by police it is recommended they cooperate. However, generally, you do not have to answer questions, sign statements or take part in a video interview. They have the right to remain silent or reply that they do not wish to answer the question. In most circumstances, they have the right to contact a legal representative and it is advisable that legal advice be sought. Further, the right to have an interpreter is another service offered. Generally police do not have the right to search your home or land without a search warrant. As a general rule, police are not allowed to search your home or land with out a search warrant. In certain circumstances police can enter private property without a warrant or without the consent of the owner to: • prevent domestic/family violence, • prevent violence or other breaches of the peace, • apprehend a person who has escaped from custody or• carry out an arrest. If you are arrested, police must advise you of your rights. They are also entitled to one telephone call to a legal adviser, friend or relative. If being held on suspicion of having committed an offence, the rights are: To have a lawyer, relative or friend present during any questioning or investigation by police while in custody. While in custody the only questions that must be answered are name and address, choosing to remain silent is a right (Australasian Police Multicultural Advisory Bureau [accessed online 26/09/04). In the court system if a person does not want to plead guilty, the matter is set for a “hearing before a jury of their peers. An accused is entitled to see all of the exhibits and witness statements collected by the police prior to hearing. Every defendant is presumed to be innocent and it is the prosecution that must prove guilt beyond a reasonable doubt. Therefore, an accused person has the right not to give evidence and can elect to not call any other witnesses (Ryan & Bosscher, 2003). In civil law a person has the right to seek recompense from another party if a duty of care has been breached. Further, the right to seek this redress in a court of law is also a matter of importance (Dienemann, 2002). Additionally, in civil cases it is the responsibility of the defendant to prove beyond 50% that they are not guilty of any wrong doing. In the criminal system in the US parties have the right to prosecution only after a preliminary judicial procedure that finds probable cause based on credible evidence presented by the prosecution. Additionally, the defendant has the right to be brought into open court, where the charges are read to the defendant, who must then enter a plea. Furthermore defendants also have the right to counsel, except in minor matters, including the right to a state appointed attorney if the defendant cannot afford a one. Moreover, a trial in an open court by a jury of their peers is also a right, further, a defendant only ever gets tried once for the same offence, moreover, the right against self incrimination is of great importance in the US criminal justice system Parties in the US civil system have an automatic right to trial by Judge and Jury unless both parties specify to hear it only in front of a Judge. Parties have the right to dismiss certain jurors; the right to appeal in a higher court, the defendant must admit or deny any claim made against them. Furthermore, the ability of each side prosecution and defense to gather information to support their position is also a right in the civil system (Sariti, 1999). . The methods of bringing persons before the court In Australia people are bought before the court in a variety of ways depending upon the court they are to appear before and the nature of the offence. Some of the ways include arrest, a notice to appear, a summons and a warrant. “Arrest is a means of ensuring that person accused of an offence will attend court to have the charge heard” (Dienemann, H.C., 2002, p135). A notice to appear is issued by the police “when a police officer reasonably suspects that person has committed or is committing an offence” (Dienemann, H.C., 2002, p111). The notice states the offence the person is alleged to have committed and requires that the person appears before a Magistrates Court at the stated time and date no earlier than 14 days after the notice was served (Dienemann, 2002) A Summons is generally used for traffic infringements, taxation offences, and breaches of local government provisions. The Summons sets out the date, time and the offence on which the matter will be heard and the details of the court that will hear the charge. As opposed to a notice to appear which is handed out almost immediately a Summons is generally sent out by registered mail. If it is not collected then a police officer will personally hand it to the defendant or to some other person at the defendants address or place of work. The last way of bringing person before the court is a Warrant. A warrant is issued when “the alleged offence is serious and it is feared the accused may abscond if he or she is issued with a Summons” (Dienemann, 2002, p112). A warrant may also be issued when the defendants address is unknown, the defendant has breached bail conditions or when a prior Summons has been ignored. In America people are bought before the court by a criminal citation, stating all relevant information regarding the court hearing, this citation would be very similar to Australia’s notice to appear, arrest is another procedure used, the warrant is also used in the US and lastly a summons to appear can also be issued (Oregon State Legislature 2003). However, there are some minor differences ranging from state to state. Overall the methods sued in the USA to get people to appear before courts are almost identical to those of Australia. Civil and Criminal Proceedings A civil proceeding is one in which there is a claim from one individual against another individual for some form of financial reparation. These cases are dealt with in the court system. Depending upon the amount of recompense sought depends on which court the case will be heard in. A criminal proceeding in one in which a person in bought before the court charged with an offence against the Criminal Code (Diagram 2 ) below outlines the differences and courts for civil and criminal proceedings. High Court • Highest Court in Australia • Appellate Jurisdiction 5-7 Judges • All areas of law • Appeals from full courts by way of special leave-appellant must convince the court that the case involves an important question of law, justice or the liberty of the appellant Court of Record No Jury Court of Appeal Court of Criminal Appeal Appellate Jurisdiction -3-5 Judges • Appeals from District and Supreme Court & sometimes magistrates • Can review questions of law and over...