Criminal trial process

what are the courts

local, coroners, childrens, district, supreme, criminal appeal, land and environment, high court

local court description

original jurisdiction: summary offences and conducts committal proceedings.

• Proceedings involve magistrate determining whether there is enough evidence for case to further in court hierarchy and trial in higher court

-       No jury

-       Criminal cases: bail hearings heard

-       Cheapest court

coroners court description

-       Investigates disappearances, deaths without medical certificate, suspicious deaths

-       Witnesses can be called

-       Autopsy can be conducted

-       Coroner cannot find someone guilty

coronial request

court hearing where coroner considers information at hand to determine manner of death

chidrens court description

-       Closed court, not open to public viewing

-       No jury, only magistrate with training for youth cases

-       Sentences different taking into consideration ages of offenders

district court description

• cases heard by judge and jury

• appellate jurisdiction: local and childrens

• handles indictable offenses but

• murder, treason, piracy

• civil: $100,001 - $750,000

supreme court description

-       Original jurisdiction: murder, manslaughter, attempted murder, conspiracy, drugs

-       single judge, 12 jurors

-       highest formality, cost, sentencing

-       appellate jurisdiction: criminal appeals from lower courts

court of criminal appeal description

• highest court for criminal matters

• appellate jurisdiction: supreme, district, (sometimes) land and environment

land and environment court description

• interpretation and enforcement of environment laws

• criminal jurisdiction: illegal polluting, illegal dumping

• no jury

high court description

• section 71 constitution

• original jurisdiction: limited commonwealth matters

• appellate: all supreme courts

• cases dealing with constitutional interpretation and validity of laws within constitution

whats the adversary system

two opposing sides presenting case to impartial judge or jury

whats inquisitorial system

judge(s) investiagate case after its presented

adversary system advantages

• fair system → both sides equal opportunity to be heard

• acheieves justice → sides present to impartial body

adversary system disadvantages

• trial very long

• injustice → may be inbalance with resources, skills, knowledge etc.

judge description

• make sure rules are followed and aim to ensure fair trial is achieved

• take authority over intermediate and supreme courts, maintain order, instruct jury to ensure they understand proceedings and evidence

• judge hands down sentence after jury reaches verdict

• judge always gives verdict

magistrates description

• same aim as judges

• take authority in local and children’s court

• when magistrate finds someone guilty, they pass on sentence

prosecutors description

State is represented by a prosecutor. Prosecutor represents society. Bring action against the accused

police prosecutors description

• prosecutor in local and children’s

• often give testimony

• members of NSWPD with specialised training in conducting prosecutions

• mostly handle summary offences

DPP

director of public prosecutions

DPP description

• prosecutes some summary offences but usually indictable

• works behalf NSW Gov

→ works separate from Gov where DPP decides which matters to prosecute (to remove politics to certain extent)

• made up of barristers and solicitors

• case prosecuted by DPP if it’s in public interest to do so

public defenders description

• funded by the government.

• legal aid prosecutors

whats a plea

formal statement of guilt or innocence of accused. Person charged asked to enter a plea

→ Pleas heard at a plea-hearing in front of judge

three choices for plea

1.    not guilty

2.    guilty (generally 25% discount of sentence)

3.    no plea

guilty plea description

• dealt with quickly at minimal cost, does not require witnesses

• accused sentenced immediately

• guilty plea heard in committal hearing: magistrate send offender to higher court for sentencing

non guilty plea description

• adversary system occurs in court

• dates of trial set, both sides work out how they will present the case

• accused then waits on bail in remand until set date

whats charge negotiation

process which prosecutor agrees to withdraw charge on the promise that the accused will plead guilty to a lesser charge

why is charge negotiation controversial

• controversial because it involves agreement between DPP where accused required to accept guilty plea, usually as bargaining tool

-       justice issues arise when balancing rights of victims and DPP’s role of discretion

advantages charge negotiation

• avoid delay, stress, cost of hearing

• greater certainty of outcome for accused

• can reduce max penalty

disadvantages charge negotiation

• prosecution can pressure or coerce accused

• no benefit to accused innocent

what did Dietrich V The Queen (1992) achieve

high court case establishing limited right to legal rep in Australia

what affects right to fair trial

right to fair trial obstructed if person does not have access to adequate legal representation

→ defendants CAN represent themselves though it is inadvisable

→ some people can afford most expensive lawyers but not everybody: inequality in the system

whats legal aid

a legal representation

• 1979, NSW Gov established legal aid

legal aid description

Legal Aid Commission Act 1979 (NSW)

• commission provides legal advice and representation to people who are socially and economically disadvantaged, so they receive fair trial

• provides free legal sessions to anyone

• receive legal rep defendant must be tested

Ø  means test assesses defendants’ income and assets determining whether or not they can pay for legal representations

Ø  jurisdiction test determines which type of case legal aid will cover

Ø  merits test describing reasonable chance of winning the case

 

burden of proof def

responsibility of the prosecution to prove in court that the accused committed the offense

• prosecution has burden of proving and establishing facts, defence simply defends

what does prosecution have to meet

standard of proof

standard of proof def

for criminal matters standard of proof = beyond reasonable doubt

• this means prosecution’s evidence must prove to standard of “beyond reasonable doubt” that the defendant did commit the crime of which they are accused

when is evidence admissable

if relevant and legally obtained

inadmissible evidence

inadmissible evidence can’t be used unless under special circumstances where judge feels justice can’t be achieved without it

kinds of evidence

physical evidence, documentary evidence, witness testimony

witnesses link to evidence

Witnesses can be called to give evidence by prosecution or defence

whats a expert witness

someone who has studied some element of evidence

• Expert witness evidence valuable and persuasive for jury, though not infallible evidence

whats a complete defence in defences to criminal charges

defence resulting in accused being acquitted

what are the complete defences

mental illness or insanity, involuntary behaviour or automatism, mistake, self-defence, necessity, duress, consent

mental illness or insanity defence

• Accused mentally incapacitated when committing the offence, not mentally capable of forming intent to commit act

  → Very difficult to prove

M’Naghten Rule: set precedent for defence of insanity

involuntary behaviour or automitism defence

• Accused action not voluntary and could not be controlled

  → Karen brown – shot dead a robber, it was found she acted post traumatic automatism

  → Zachary Rolfe – found not guilty of murder and manslaughter of Kumanjayi Walker

For accused to be convicted act must be voluntary

mistake defence

Honest and reasonable mistake

• Hard to prove

self defence defence

• Accused was defending themselves or another person while attempting to prevent a crime or defending property

  → Jessica Silva – acquitted of manslaughter of ex-partner – excessive self defence

necessity defence

Necessity operates where circumstances bear upon the accused, inducing accused to break the law to avoid dire consequences

• R v Loughnan 1981

duress defence

Unlawful pressure: threat applied to a person to induce them to do something against their will

Recognises we are human beings

consent defence

Used in sexual assault cases, not murder

Section 61HI Crimes Act 1900 (NSW)

whats a partial defence

defence accused argues there were mitigating circumstances which reduces sentence or results in acquittal

what are the partial defences

provocation, substancial impairment by abnormality of mind, excessive self-defence

provocation defence

• Operates to reduce charge of murder to manslaughter

  → The Crimes Amendment (Provocation) Act 2014: substantially altered the law by creating partial defence “extreme provocation”

Stingel v The Queen 1990

Substantial impairment by abnormality of mind defence

Abnormality of mind includes when accused can’t:

1.    Understand events or

2.    Judge whether his or her actions were right or wrong

3.    Control him/herself

 

Ø  Should arise from underlying condition: pre-existing mental or psychological condition

Ø  Eg low IQ

Cannot be used as excuse when intoxicated (alcohol or drugs)

excessive self defence defence

Person uses excessive force in self-defence and causes death of another

→ Could be not guilty of murder but guilty of manslaughter

whats a jury

the impartial body that considers evidence of both sides

→ Jury determines guilt or innocence to certain charges: the verdict

role of jury

-       Jurors sworn in before case begins

-       Juror listens to evidence, comes to verdict

-       Jurors permitted to make notes, not permitted to talk to anyone (except fellow jurors)

-       Jurors can ask for clarification from judge

-       Jury cant be influenced by media

-       Jury doesn’t have set time limit for coming to a verdict

advantages of jury

• Random nature of jury is likely to reflect community standards in ways judge can’t

• ‘trial by peers’ used historically so has gained a community of trust other systems fail to have

• Juries give sense of community involvement for crimes committed against society

• Juries fallible due to human nature, but bias may also be found in judges

disadvantages of jury

• Jurors may change mind last minute purely because they want case to end

• Jurors may bring prejudice into case

• Case can persist for long time, impacting jurors lives

• Lack of transparency

whats a verdict

determining guilt or innocense in charges

whats hung jury

• jury that can’t reach decision

Ø  In this case, case dismissed, and retrial ordered. Whole case redone

admenment of hung jurys

-       2006 Jury Act 1977 (NSW) was amended allowing majority verdicts of 11:1 or 10:2 in cases where time for reasonable deliberation has passed and court satisfied that unanimous vote not reached

Ø  Amendment doesn’t apply to commonwealth offences

Jury determines verdict, judge determines sentence