Criminal law

criminal cases

• aim to protect individuals and their property, safeguard individuals rights and maintain order.

• criminal wrongs threaten societal harmony and public system, so they are prosecuted by a representative from the governments executive branch- significance to public welfare

• evolved out of common law and is codified into statutory law- WA criminal code e.g. drug possession, Commonwealth criminal code act creates offences related to federal legislative power as defined by constitution e.g. exporting drugs across national borers

types of offenses

summary and indictable

summary offences

• simple offences, minor, clearly designated in statutes e.g assualt, disorderly conduct, traffic infractions

• magistrates court- magistrate determines ruling typically ex tempore (without retiring for deliberation), police prosecutor. no jury.

• shorter because of straightforward nature

• some are either way (summary or indictment) e.g. assault (s317 of criminal code) max 2 years magistrates but 5 years indictment. dealt with summarily unless prosecution applies for higher court and court determines that the alleged offending si too serious to be dealt with in the magistrates court

indictable offences

• more serious

• district and supreme courts, judge ensures fair trial by enforcing proper procedure and rules of evidence. if accused is found guilty of any offending by the jury, judge determines sentence. prosecuted by director of public prosecutions

• jury

• document that formally charges the accused is an indictment

Rights of the accused

The prosecution bears the burden of proof of the elements of the offense beyond reasonable doubt. The defendant has no obligation to prove anything beyond this fundamental principle.

• right to silence

• presumption of innocence

• right to legal representation and fair trial

Right to silence

• core common law principle that protects individuals from self-incrimination.

• admissions are exceptions to the hearsay rule; suspects must be cautioned before making potentially incriminating statements.

• failure to caution can render any statements inadmissible in court.

• also ensures the accused cannot be forced to testify. In the adversarial system, both sides present their cases independently. Requiring the accused to present evidence against themselves would effectively make the defense assist the prosecution.

Presumption of innocence

• Defendants are presumed innocent.

• beyond reasonable doubt in criminal cases or on the balance of probabilities in civil ones. If this burden is not met, the defendant is not found guilty or liable, though not necessarily declared innocent.

• protects individuals from being unfairly penalized based on accusation alone.

• argue these rights hinder prosecution, but given the serious consequences of criminal convictions, the standard must remain high.

Right to legal representation The Queen v Dietrich (1992)

• Olaf Dietrich was charged with importing 70g of heroin into Australia after arriving from Bangkok in December 1986. He denied the charges. Despite seeking legal aid, he was unrepresented at trial because Legal Aid refused to support his case unless he pleaded guilty, citing limited resources and the strength of the prosecution’s case.

• After being convicted, Dietrich appealed, arguing his right to legal representation and a fair trial had been denied. The High Court eventually overturned the conviction and ordered a retrial.

Effect of The Queen v Dietrich (1992)

• If an accused is charged with a serious offence and is unrepresented through no fault of their own, they cannot receive a fair trial.

• In such cases, the court should stay (pause) the trial until representation is available.

• Doesn’t create formal right to state-funded representation BUT decision requires governments to fund legal aid if state wishes to prosecute a matter

Criminal Procedure Act 2004

provides legal framework for all criminal proceedings in WA

Criminal procedure

Pretrial

1. Police investigation

2. Charged + first appearance in Magistrate’s court for bail or remand

3. Disclosure and committal hearing-

   • police provide hand up brief (disclosure)

   • magistrate checks if the disclosure is sufficient (weak, then discontinue/ demand adjustment)

   • Accused enters a plea

   • Guilty→ committal to D/S court for sentencing

   • Not guilty→ committal to D/S court for trial, DPP takes over case

4. Trial listing hearing (administrative)

5. Trial

6. Sentencing hearing

Police investigation

Police are informed of an alleged offence. Each case is assigned to an investigating officer.

Powers of police- Criminal Investigation Act 2006 (WA)

The Criminal Investigation Act 2006 (WA) and other laws define and limit police powers, including:

• Arrest and detention

• Collecting fingerprints and photographs

• Conducting searches and seizing items

• Taking breath, blood, or urine samples (especially for traffic matters)

warrant

written orders from a justice of the peace, magistrate, or judge and are required for certain powers where there’s justified intrusion on individual rights—such as searches, surveillance, phone taps, or seizing items.

arrest without a warrant

if they reasonably suspect that the person

• Has committed/is committing an offence punishable by imprisonment

• Is engaging in or about to engage in violence or behaviour likely to cause fear

• Has breached a family violence restraining order

• Is committing/about to commit an offence and is likely to reoffend, endanger safety, interfere with the investigation or witnesses, or cannot be otherwise identified

Police must inform person of

under the Criminal Investigation Act,

• Their right to medical treatment

• Their right to contact a friend, relative, or interpreter

• The reason for the arrest

• Their right to contact a lawyer

• Their right to remain silent (must be cautioned)

Police interviews

must be audio-visually recorded to be admissible in court. suspect is given a copy. usually dedicated interview rooms at police stations. Suspect must be:

• Cautioned about the right to remain silent

• Informed of the right to legal representation and an interpreter

Filing charges- summary or indictable

• filed once the investigating officer believes there is enough evidence.

• Summary charges- accused brought before magistrate’s court by court summons or arrest and bail/remand.

• Indictable charges- accused brought before magistrate’s court by arrest and bail/remand during disclosure/committal hearing

Bail

a written undertaking to appear in court on a set date. Failure to appear results in a warrant for their arrest. used for more serious offences.

• Can be granted by some senior police officers- if not, by a judicial officer as soon as practicable (ensure independent judicial authority decides if they should be deprived of liberty before trial)

• If bail is refused, the accused is remanded in custody until their next court date.

Courts consider the following when deciding bail

• Bail Act 1982 (WA)

• Risk that the accused may:

  • Fail to appear

  • Leave the jurisdiction

  • Commit an offence

  • Endanger someone

  • Interfere with witnesses or evidence

• Whether bail conditions could reduce these risks

• Any previous breaches of bail

• Nature and seriousness of the offence

• Strength of the prosecution’s case

Examples of bail conditions

• Residing at a fixed address

• Curfew

• Regular check-ins at a police station

• Avoiding certain people

• Surrendering passport

Cash bond and surety

cash bond is a refundable fee if bail conditions are met. Surety e.g., a family member may offer to pay if the accused fails to appear. Property, like a car or house, can also be used as surety.

Remand although bail is granted

due to:

• Inability to pay the bond

• No one to act as surety

• No fixed address (due to homelessness, poverty, or lack of support)

This highlights how socioeconomic disadvantage can undermine equality before the law.

Refusal of bail for two offences

• courts must refuse bail (unless there are exceptional circumstances) if someone is accused of committing another serious offence while already on bail for a schedule 2 offence.

• Reverses the burden of proof- instead of the prosecution having to argue against bail, the accused must show exceptional reasons why bail should be granted.

• reflects Parliament’s effort to prioritize community safety, sometimes at the expense of long-standing legal protections.

Trial listing hearing and purposes

an administrative court hearing for case management.

Purposes:

• Prosecution files the indictment, a formal document outlining the charges

• Court receives essential information to list the matter for trial:

  • Number and availability of witnesses

  • Need for a voir dire (a pretrial hearing to determine admissibility of evidence)

  • Estimated trial length

• The hearing may be adjourned to allow for further plea negotiations

• If not resolved, the matter is listed for trial

Trial procedure

Other flashcards set

Post trial

• If Found Not Guilty:

  • Prosecution failed to prove guilt beyond reasonable doubt.

  • Defendant is free to go.

  • No post-trial phase follows.

• If Found Guilty:

  • Guilt is proven beyond reasonable doubt by a judge or jury.

  • The accused becomes convicted and is legally recognized as having committed the offence.

Sentencing hearing- when and who’s involved

• When?

  • After a guilty plea or guilty verdict at trial, the matter is listed for a sentencing hearing.

• Who’s Involved?

  • Prosecution and defense make submissions on what sentence should be imposed.

  • The judge may:

    • Sentence immediately (summary) , or

    • Adjourn the matter to consider the appropriate sentence (indictable)

Sentencing hearing- judicial discretion

Judicial discretion: the judge decides the sentence based on the specific circumstances.

• Guided by statutes:

  • Criminal Code Compilation Act 1913 (WA)

  • Road Traffic Act 1974 (WA)

  • Sentencing Act 1995 (WA)

Principles/ rules of sentencing

• Sentence must be:

  • Proportionate to the offence and circumstances

  • Consistent with similar cases (parity)

  • Commensurate with the seriousness of the crime (Sentencing Act 1995 (WA))

Factors judges must consider (Sentencing Act 1995 (WA)

• Maximum penalty for the offence

• Circumstances of the offence

• Aggravating factors (e.g., victim vulnerability, harm caused, prior convictions)

• Mitigating factors (e.g., cooperation with police, remorse, clean record)

• Purposes of sentencing (punishment, deterrence, rehabilitation, protection, denunciation)

Factors emphasized by prosecution and defence

• Role of Prosecution:

  • Emphasizes aggravating factors

• Role of Defence:

  • Emphasizes mitigating factors

Guilty plea discount

• A guilty plea is a major mitigating factor:

  • Shows acceptance of responsibility

  • Saves victims from trial stress

  • Saves public trial expenses

Maximum guilty plea discount

• Maximum discount:

  • 25% reduction in imprisonment term

• To receive full 25%:

  • Offender must plead guilty at the first reasonable opportunity:

    • This could be when charges are filed in the Magistrates Court

    • Or during the committal stage (e.g., after DPP amends charges)

Sentencing options (most to least severe)

• imprisonment

• home detention

• community based orders

• fines

• conditional release orders/ good behavior bonds

• combining sentences

Imprisonment

• Most severe sentencing option.

• May be:

  • Immediate (served in prison right away), or

  • Suspended (offender remains in the community under conditions and good behaviour)

• Acts as a strong deterrent and protects the community.

home detention

• Offender must remain at home, except for approved essential outings (e.g. medical visits).

• Offenders are electronically monitored.

• Less restrictive than prison but still limits liberty.

Community based orders

• Offender remains in the community but must:

  • Complete unpaid community work

  • Attend rehabilitation or educational programs

  • Undergo treatment (e.g. for addiction)

  • Report regularly to a supervising officer from the Department of Corrective Services

fines

• Financial penalty paid to the court.

• Can be stand-alone or combined with other sentences.

• Often used for less serious offences.

Conditional release orders

• Offender is released without punishment, but must:

  • Not reoffend during a set period

  • Comply with specific conditions

• Breaching a CRO can lead to re-sentencing for the original offence.

Combining sentences

• Sentences can be combined to address different sentencing purposes.

• Example: A short term of imprisonment + community-based order requiring rehab attendance.