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The Legal System
Where do laws come from? The legal systems in Australia are not surprisingly based on British law. When Australia was colonised by the British in 1788, the laws were those of Britain. In 1901, when Australia became an independent nation, it gained the power to create laws of its own. However, independence didn’t mean that all the old laws from Britain were thrown out, and a full set of new ones created. Over time, some old laws were replaced or revised, so that eventually they became distinctively Australian. Others were created at the very start of independence, including those which defined the separation of powers: the setting out of what the States were responsible and what the Commonwealth had power over. Essentially, this separation of powers determined which level of government was able to create laws (legislation) to control different aspects of day‐to‐day life. Thus, the Commonwealth government can create laws about taxation, while the state governments can make laws controlling pollution. Not all law comes from the parliaments, though all matters described as criminal law do. There is what is known as precedent or judge‐made law, which is where the judge has to make a decision where there is no legislation covering a particular matter, or where the law as written is not clear. However, this type of law cannot produce a new crime, only clarify the existing situation. Types of law The most important distinction between laws is not which bodies creates them, but whether they are criminal or civil. Criminal law is where “a person or persons commits a wrongful act and has a wrongful intent”. That an act is determined as “wrong” is through an act of parliament. The intent aspect means that the person carrying out the act intended to do it: it didn’t happen by accident. It is a crime to kill or injure someone deliberately (wilful), or through lack of care (negligence) but it is not a crime if the person had no intention of doing so (accident). The state, representing the community, is responsible for dealing with criminal acts. It, through the prosecution team of lawyers, must prove in a court (see below) that the accused committed the crime beyond reasonable doubt. The accused does not have to prove that they are innocent. Civil law refers to situations where no crime has been committed, but where one person (or group) believes that another person (or group) has caused them hardship, financial problems or even simple public embarrassment without good reason. The “injured” person can attempt, via the legal system, to have this damage repaired by payment and/or apology. In civil cases, the plaintiff (the injured party) has to establish that there is a case against the defendant (the other person). By contrast to criminal cases, the defendant then has to provide arguments defending his/her side of the matter. The court then decides which case is stronger. The court system The court system is where the criminal and civil law cases are heard and the outcome decided. In New South Wales, there are three levels of courts dealing with the general run of criminal and civil law cases, as well as other matters such as apprehended violence orders. They differ only in the seriousness/importance of the case being heard. These court levels are: 
Supreme Court – the highest court in the state, which in principle can hear any case, but actually only deals with the most serious criminal (eg murder) and civil cases, as well as appeals on decisions made by lower courts 2. The Legal System
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District Court – the middle level court, which hears most serious criminal cases and civil cases (up to a certain monetary limit), as well as appeals from the Local Court 
Local Court – the lowest level of court, which deals with the majority of criminal cases (eg burglary, assault) and minor civil matters There are also some courts for particular areas, for example, family law, planning and environment, children. In Australian criminal courts, the accused person has the right to choose between trial by jury or by judge. In the case of a jury trial, twelve members of the general public chosen at random make the decision in the case as to whether the accused is guilty or not guilty. At the moment, it must be a unanimous decision: all twelve members must agree. In a jury trial, the judge does not make the decision; he/she is there to manage the proceedings of the trial and to decide on legal matters (eg if evidence is admissible). Where no jury is required the judge makes the decision as well. You need to be very clear about the meaning of the verdict of not guilty: if the jury cannot all agree that the person did the crime they are accused of beyond reasonable doubt, they must find them not guilty, even if they think they probably did it. A person found not guilty cannot be tried again for the same crime. This is known as double jeopardy (but it is being reviewed now – see newspaper article). In civil law cases, the situation is different: where a jury is involved, only a majority decision is required and fewer than twelve persons are on the jury. Where forensic evidence fits in The evidence provided by forensic examination can be used in both criminal and civil cases and by both parties. However, in criminal cases, where it is the prosecution that has to prove guilt, it must do so with evidence. It is here that the work of forensic scientist/technician/crime scene officer is vital. Testimonial evidence by witnesses is not considered as reliable as physical evidence from forensic examination. However, the forensic officer will in most cases be required to present that evidence personally in court. It is unlikely that a written report will be sufficient. The forensic officer then must provide their evidence verbally in court, and be questioned over their judgements by the legal team of both the prosecution and defense. Terminology Appeal – both parties in a court case can request a review of the decision by a higher court Retrial – if the jury cannot come to a decision or there has been a problem with the process (eg the media broadcasting details of the trial, a jury member is found to be a friend of the accused or a witness), the trial is halted, no verdict is reached, the jury discharged and the whole process begins again Jurisdiction – the type of case that a particular court can hear Admissible – evidence that is legally allowed to be heard in court Double jeopardy – a person cannot be charged with a crime if they have been already found not guilty of that crime in a trial Introduction To Forensic Science IS2.2