criminal procedures

legislation that codifies crimes + governs sentencing

• Criminal Code Compilation act 1913 (WA)

• Road Traffic Act 1974 (WA)

types of criminal offences

• summary

  • less serious

  • eg. minor drug possession, minor theft

  • dealt with in magistrates court

• indictable

  • more serious

  • murder, armed robbery

  • have right to trial by jury

  • dealt with in district and supreme courts

type of prosecutor

• summary = police

• indictable = director of public prosecutions

• both are part of the executive meaning the state is a party to all criminal trials

criminal pre-trial procedure (general)

• police may observe offence being committed

• can either intervene by:

  • issuing summons

  • arresting to prevent further offending/if they are harm to themselves or others

• crimes discovered after passage of time:

  • crime reported to police

  • police carry out investigation

  • suspect may be arrested + charged

• matter can be resolved @ any time during pre-trial/trial

• pre-trial investigations can cause police/DPP to believe have insufficient evidence to prove guilt BRD —> abandon trial

• offender may change plea from guilty to not guilty @ any time

• earlier you plead guilty —> larger discount on sentence

summary offence procedure

• offence is committed

• individual is arrested/issued a summon

• brought before mag. and either held in custody on remand/released

• summons requires offender to come to MC for set hearing

• not guilty plea - is a dispute

• guilty - no dispute

indictable offence procedure

• serious offence is committed

• police make arrest if crime is discovered immediately

• if crime isn’t discovered immediately, investigation made para make arrest

• offender is charged + held in custody to await hearing in MC

• magistrate sets timeline for case, if defendant pleads guilty —> sent to SC/DC for sentencing, if plead not guilty —> bail/held on remand

• police committal hearing —> police provide all evidence to mag

• committal hearing —> in MC, ensures defence has all evidence from pros, and pros has settled on charges

• guilty plea = no dispute, only sentencing

• not guilty plea = dispute to be resolved by trial

arraignment + jury empanelment

• accused formally read charges + pleads guilty/not guilty

• jury is selected from jury pool

opening addresses

• prosecution + defence:

  • outline case

  • explain alleged crime

  • explain evidence to be presented

  • explain law they argue supports their case

examination of prosecution witnesses

• prosecution

  • calls witnesses to stand

  • witnesses swear an oath

  • respond orally to pros qs

  • evidence should conform to rules of evidence

  • can re-examine if evidence undermined by defence

• defence

  • tests witness’ evidence by attempting to highlight weaknesses, contradictions etc that create doubt

  • aim is to create reasonable doubt

close of prosecution case

• after all witnesses

• if defence considers pros to have failed to provide evidence of guilt —> may submit to court there is ‘no case to answer’

• OR defence calls own witnesses

examination of defence witnesses

• defence

  • calls witnesses to stand

  • witnesses swear an oath

  • respond orally to def qs

  • evidence should conform to rules of evidence

  • can re-examine if evidence undermined by pros

  • aim is to create reasonable doubt

• prosecution

  • tests witness’ evidence by attempting to highlight weaknesses, contradictions etc that draw evidence into doubt

closing address

• prosecution

  • sums up their case + evidence

  • argue have proven case BRD + defendant should be found guilty

• defence

  • sums up their case + evidence

  • argue there is RD and defendant should be found not guilty

charging the jury + verdict

• judge addresses jury, summarises evidence + instructs them on what they must consider to deliver verdict

• judge reminds jury of SoP and of evidence that may have been ruled inadmissible

• jury gives verdict

• if guilty must be unanimous or if judge allows, majority of 10-2 or greater

trials

• biggest diff between crim + civil is SoP

• much higher for crim

• due to fact that crim conviction can lead to a loss of rights

defences

• accused has right to present defence to charge

• can argue their act was lawful OR they couldn’t have been held legally responsible @ the time

• all parties must address defence as part of their argument

SoP with defence

• some cases pros bear burden to disprove defence

• some cases defence bear burden to prove their argument (usually on BoP)

possible defences

• an absolute defence (excuse)

• a partial defence (a reason)

• eg. self-defence, unsoundness of mind, provocation, accident

sentencing + judicial discretion

• judges bound by Crim Code/Road Traffic Act must provide explicit statements on max penalties

  • eg. sect 313 aggravated assault (LOOK TO BOOK)

• also bound by other laws such as Sentencing Act 1995

  • specifies min + max penalties

  • factors judges must take into account

  • allows for judicial discretion

mandatory sentencing

• certain types of offences require min prison sentences

• controversial + limits judicial discretion

• argued that it targets lower socio-economic groups, especially young A+TSI boys who have been brought up to have negative perceptions of authorities

• 53% of young people in detention = A+TSI while only 2.8% of pop is A+TSI

• prioritises retribution over rehab

sentencing aims

• deterrence

  • aims to discourage both the offender and others in the community from committing the crime again

• community protection

  • aimed @ dangerous offenders

  • promotes social cohesion

• rehabilitation

  • reforms offender

  • eg. through compulsory of training or education courses

• retribution

  • punishment

  • offender has caused suffering —> deserves to suffer

sentencing options

• imprisonment

• community based sanctions

• home detention

• fines

• can be used in combination with each other

• can pass severe sentences like jail time + suspend sentence on good behaviour