Corporate crime – understanding the playing field

Civil proceedings In Australia, we have adopted the "adversarial system" for our civil proceedings. The underlying precept of this system is that the "truth" can be arrived at by parties to the litigation challenging and testing each other's case before the court. Other civil jurisdictions have adopted an "inquisitorial system" whereby the court searches for the "truth" through conducting investigations and exercising inquisitorial powers.

A principal feature of the adversarial system is that both the party bringing the claim and the party defending the claim must "reveal their case" as part of the process. This starts with the preparation of documents recording the key material facts relied on by the parties, which serves to define the ambit and nature of the dispute. The process thereafter is focused on the gathering and exchange by the parties of evidence relevant to the dispute.

Unlike in criminal prosecutions, if a defendant to a civil proceeding disagrees with the claim, it must file a defence which reveals the basis of its disagreement. This requirement is in stark contrast to the "right to silence" which is afforded to defendants in criminal and can arise in civil penalty matters.

Civil penalty proceedings Civil penalty proceedings have aspects that resemble both civil proceedings and criminal prosecutions. Similar to criminal prosecutions, civil penalty proceedings are commenced by the State or...