criminal trial process

role of juries

• juries are a central part of the adversary system.

• they reflect the right of the accused to be judged, impartially by their peers, based on evidence presented at trial.

• jury act 1977 (NSW).

• The decision is called a verdict and the jury consists of 12 people

challenging jurors

• in criminal trial both prosecution and the defence have the right to challenge either the selection of the entire panel or individual jurors.

• certain number of peremptory challenges of prospective jurors→ when they are disqualified individual jurors without reason. this usually goes based off age, gender, physical appearance.

eligibility of jury duty

• australian citizens over 18 are eligible.

• those over 65, pregnant or full time carer of children can be excused from jury duty.

• non english speakers, emergency service workers, and people with disabilities and convicted criminals are reasons for inability to sit on jury.

• jurors are paid, employers must give leave, failure to attend results in a $1100 fine.

criticism of jury duty

• too many people are able to avoid jury duty due to exceptions.

• calls on a smaller cross section of the community for the accused to be judged.

role of the jury system

• jurors are sworn in.

• they listen to evidence presented to the court, apply the law as directed by the judge and come to a verdict, of guilty or not guilty.

• jurors can make notes to refresh memory but cant talk to anyone bout the case other than other jurors when together

• the role is to be unbiased and impartial and make a judgment based solely on evidence presented.

• remain fair and open minded and not be influenced by media or personal beliefs.

verdict

• jury has to reach a verdict of guilty or not guilty and present that verdict to the court.

• the accused will then be acquitted if found not guilty, if guilty→ judge will pass down a sentence.

• a ‘hung jury’ is where the jury is unable to reach a verdict→ case is dismissed and retrial ordered. placing significant strain on the time and cost of accused and prosecution.

majority verdict reform.

• in 2006, NSW parliament amended the jury act 1977, to allow majority verdicts in cases where reasonable time has been given but jurors are unable to reach a decision.

• verdict agreed by 11 in jury of 12.

• verdict agreed by 10 in jury of 11.

• act does not apply to commonwealth as thats protected by section 80 of the constitution.

• removes the power of rogue or unreasonable jurors who are unrepresentative of the community and it avoids time delays, cost and stress on the victim of a retrial.

judges and magsitrates

judicial officers who preside over court cases

judges

• judicial officer who preside over intermediate and superior courts. maintain order in courts.

• judge hands down sentences and rulings once jury has reached a verdict.

magistrates

• judicial officers who preside in the local court, also hear cases in the children’s court.

• cases over indictable offences triable where accused has consented to case being heard by magistrate.

police prosecution

• police must undertake an intensive and exhaustive investigation and gather all evidence to be used in court.

• police can give a testimony to aid the prosecution.

• summary offences→ local, children usually prosecuted by police prosecutors.

director of public prosecutions

• independent authority that prosecutes all serious offences on behalf of the NSW government.

• they are barristers or solicitors

decision to prosecute

• whether the evidence is sufficient to establish elements of the offence.

• evidence is sufficient to gain a conviction

• if it is in the public interest to do so.

• certain discretionary factors that relate to public interest.

public defendants

• when the accused cannot afford to pay a barrister or solicitor

• barristers who appear in serious criminal matters for an accused.

• independent from the government.

barristers and solicitors

• person charges with an offence→ contacts solicitor who gives accused advice

solicitor

• usually briefs the barrister to present in court→ overview the case and outline the key facts, legal issues and relevant law like legislation precedents.

barrister

• give legal advice and present the case to court

pleas

• a formal statement of guilt or innocence by the accused

plea hearing

• where the accused states their plea in front of a judge.

• no plea= no guilty

charge negotiation

• an agreement between the DPP and the accused, involving the guilty plea, in exchange for something else→ resource efficient.

• 25% reduction on guilty in local before commital

against charge negotiation

• crimes insufficiently punished.

• accused pleads guilty when they may be innocent.

• may lead to bullying or manipulating in their right to trial.

legal aid/rep

• defendant wont have a fair trial f they don’t have adequate rep.

• access to justice is crucial for a fair/equal legal system.

• legal aid provides assistance and rep to people who are socially and economically disadvantages,

• legal aid helps people with disability, indigenous and financially disadvantages people.

burden of proof

• responsibility of prosecution to prove the case against the accused.

standard of proof

• level of proof required for a party to succeed in court.

beyond reasonable doubt

• standard of proof required in a criminal case for a person to be found guilty.

adversary system

• australian criminal justice system is based on english common law.

• relies on two side:

  opposing sides each present their own position with an impartial judge or jury hearing each side and determining the truth.

criminal adversary system

• the prosecution representing state against accused→ judge for indictable matters acts as an impartial judge.

supporters of adversary

• often claim it is a fairer system.

• allows each party an equal opportunity to present its case and is less prone to bias.

• cases are carefully prepared before the trial and both are able to present their side according to the rules of evidence and procedure.

• jury represents judgement by other members of the community and is considered an impartial observer.

critics of adversary

• competing sides are not equal before the law, with potential imbalances in resources, skills or knowledge.

• even where additional evidence or testimony would assist the case, the judge or jury may not be in a position to request or allow it.

• the complex nature of cases→ might be misunderstood due to a lack of general understanding by the jury of the evidence presented.

inquisitorial system

• system by which a judge or group plays a role in investigating the case or calling for evidence or testimony that has not been requested by either side.

• E.g. coronial inquests, royal commission.

court jurisdiction

• higher court can review a decision of a lower court

appellate jurisdiction

• courts ability to hear appeals from lower courts and to reaffirm or reject decisions made.

lower courts: local

• first point of call for criminal matters.

• seriousness→ summary and indictable.

• commital hearing→ hearing before hearing→ case is first heard in local

• no jurisdiction over bail hearings.

• resolves cases quicker than higher courts.

lower courts: coroners

• persons death in an unexplained or suspicious way.

• ascertains decaseds’s identity and place, manner and cause of death.

• coroner cannot find someone guilty, give an inquiry to DPP to decision actions.

lower court: children

• criminal matters concerning children and people under 18 at the time of the offence.

• children’s court→ closed, general public prohibited.

• presided by magistrate→ no jury.

intermediate court: district

• heard before judge and jury, has appellete jurisdiction.

• $750,000 civil, indictable and summary (not murder and treason).

• jury decides if guilty or not, judge decides sentencing.

• manslaughter, indecent assault, sexual assault, robbery, larceny, supplying drugs, causing serious bodily harm by car.

superior courts: Supreme court of NSW

• hears the most serious indictable and summary offences

• original jurisdiction:

• murder, manslaughter, attempted murder.

• major drug conspiracy.

• matters in supreme court= highest level of formality, cost, time and consequences.

court of criminal appeal

• appellate branch of criminal jurisdiction in relation to criminal cases.

• appeals from district, supreme, lan and environment.

• grounds include: question of law, question of fact, challenge to the severity of adequacy of a sentence.

land and environment court

• interpreting and enforcing environmental law.

• E.g. zoning of park lands.

• illegal polluting or dumping.

federal court

• commonwealth offences, exercise federal criminal jurisdiction.

• classified as summary of indictable

• drug importation, money laundering, social security or tax fraud.

high court

• highest court in Australia, original jurisdiction in limited commonwealth matters,

• appellate jurisdiction but not automatic right.

• special leave granted for questions of law of public importance, conflict between courts or in the interests of the administrative of justice.

• high court also deals with cases concerning and interpreting the constitution and the constitutional validity of laws.