The Criminal Trial Process

Complete Defences Discretion

1. Defence of mental illness

   • Cy Walsh not guilty of father's murder due to mental incompetence The guardian 2016

     • “Evidence gathered by police and reports from forensic psychiatrists.”

     • “detained for some time at Adelaide’s secure mental health facility” The guardian 2016

2. Defence of Automatism

   • Security guard acquitted of murder ABC 2006

     • “The jury heard Ms Brown was suffering from automatism” ABC 2006

   • Guards Mother

     • "We consider the right decision has been made because”

     • “she's incapable of doing what she was accused of."

3. Defence of consent for SA charges

   • BOCSAR revised jan 2025

     • “around 85% of sexual assault incidents had no legal action taken”

     • “where criminal proceedings were commenced, less than half of the accused were subsequently found guilty”

Complete Defences Values and Ethics

1. Defence of mental illness

   • Cy Walsh not guilty of father's murder due to mental incompetence The guardian 2016

     • “Evidence gathered by police and reports from forensic psychiatrists.”

     • “detained for some time at Adelaide’s secure mental health facility” The guardian 2016

2. Defence of Automatism

   • Security guard acquitted of murder ABC 2006

     • “The jury heard Ms Brown was suffering from automatism” ABC 2006

   • Guards Mother

     • "We consider the right decision has been made because”

     • “she's incapable of doing what she was accused of."

3. Defence of consent for SA charges

   • BOCSAR revised jan 2025

     • “around 85% of sexual assault incidents had no legal action taken”

     • “where criminal proceedings were commenced, less than half of the accused were subsequently found guilty”

Complete Defences Law Reform

1. The NSW consent laws changed on 1 June 2022. The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021

   • The guardian 2022

     • “The new laws require parties to give and obtain consent “at the time of the act”

2. the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

   • Instead of “not guilty by reason of mental illness”, “act proven but not criminally responsible”

   • Marsdens Law Group

     • The change comes from victim calls to change the verdict, as “not guilty” undermined the offence occurring.

3. 'A kick, three punches and a stomp': Not guilty police officer found to be acting as an automaton SMH 2017

   • “A police officer who kicked, punched and stomped on a man”

   • “not guilty of assault”

   • Prosecution failed to prove mens rea

   • “expert evidence from a neurosurgeon, a neurologist and a psychologist”

   • "automaton"

Complete Defences Balancing Rights

1. Defence of mental illness

   • Cy Walsh not guilty of father's murder due to mental incompetence The guardian 2016

     • “Evidence gathered by police and reports from forensic psychiatrists.”

     • “detained for some time at Adelaide’s secure mental health facility” The guardian 2016

2. Defence of Automatism

   • Security guard acquitted of murder ABC 2006

     • “The jury heard Ms Brown was suffering from automatism” ABC 2006

   • Guards Mother

     • "We consider the right decision has been made because”

     • “she's incapable of doing what she was accused of."

3. Defence of consent for SA charges

   • BOCSAR revised jan 2025

     • “around 85% of sexual assault incidents had no legal action taken”

     • “where criminal proceedings were commenced, less than half of the accused were subsequently found guilty”

Partial Defences Discretion

1. Provocation

   • R v Camplin (1978)

     • 15 year old boy successfully argued provocation murder charge reduced to manslaughter.

     • Uncle had sexually assaulted him and was mocking him

2. Substantial impairment because of mental health impairment or cognitive impairment

   • “Mother who let toddler drown not guilty of murder” SMH Article 2012

     • “Diminished responsibility”

     • “on the grounds she was suffering from a depressive illness.”

3. NSW Law Reform Comission - provocation:

   • “unfair to assess criminal liability” “to an objective standard”

   • “may pose particular problems for certain groups of offenders, such as offenders with an intellectual disability.”

Partial Defences morals and ethics

1. Provocation

   • R v Camplin (1978)

     • 15 year old boy successfully argued provocation murder charge reduced to manslaughter.

     • Uncle had sexually assaulted him and was mocking him

2. Substantial impairment because of mental health impairment or cognitive impairment

   • “Mother who let toddler drown not guilty of murder” SMH Article 2012

     • “Diminished responsibility”

     • “on the grounds she was suffering from a depressive illness.”

3. NSW Law Reform Comission - provocation:

   • “unfair to assess criminal liability” “to an objective standard”

   • “may pose particular problems for certain groups of offenders, such as offenders with an intellectual disability.”

Partial Defences law reform

1. The Crimes Amendment (Provocation) Act 2014

   • no longer is available for people to kill their partners out of jealous rage or sexual assault.

   • R v Singh case 2012

     • “convicted him of manslaughter”

     • “wife telling him she never loved him”

2. the South Australia Parliament passed a Bill outlawing the so called “gay panic” defence to murder. 2020

   • last state to do so following QLD

   • Anna Brown, CEO of Equality Australia.

     • “working to make sure that our laws address crimes motivated by hate or prejudice,”

3. NSW Law Reform Comission - provocation:

   • “unfair to assess criminal liability” “to an objective standard”

   • “may pose particular problems for certain groups of offenders, such as offenders with an intellectual disability.”

Partial Defences balancing rights

1. Provocation

   • R v Camplin (1978)

     • 15 year old boy successfully argued provocation murder charge reduced to manslaughter.

     • Uncle had sexually assaulted him and was mocking him

2. Substantial impairment because of mental health impairment or cognitive impairment

   • “Mother who let toddler drown not guilty of murder” SMH Article 2012

     • “Diminished responsibility”

     • “on the grounds she was suffering from a depressive illness.”

3. NSW Law Reform Comission - provocation:

   • “unfair to assess criminal liability” “to an objective standard”

   • “may pose particular problems for certain groups of offenders, such as offenders with an intellectual disability.”

Juries Discretion

1. Jury amendment (Verdicts) Act 2006 (NSW)

   • “to allow the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict”

2. “Former Sydney swim coach and MasterChef contestant guilty of sexually abusing 11 children” The Guardian 2023

   • “Jury found him guilty on all counts”

   • the judge said she would take a majority verdict.

   • VCAL spokesman

     • “spare some victims the ordeal of having to give evidence at retrials.”

3. “Drug trial abandoned after jurors play Sudoku” ABC 2008

   • “a juror admitted she and four others had been playing Sudoku while evidence was being heard.”

   • NSW Council of Civil Liberties vice-president

     • “it is essential that jurors listen”

Juries morals and ethics

1. Jury amendment (Verdicts) Act 2006 (NSW)

   • “to allow the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict”

2. “Former Sydney swim coach and MasterChef contestant guilty of sexually abusing 11 children” The Guardian 2023

   • “Jury found him guilty on all counts”

   • the judge said she would take a majority verdict.

   • VCAL spokesman

     • “spare some victims the ordeal of having to give evidence at retrials.”

3. “Drug trial abandoned after jurors play Sudoku” ABC 2008

   • “a juror admitted she and four others had been playing Sudoku while evidence was being heard.”

   • NSW Council of Civil Liberties vice-president

     • “it is essential that jurors listen”

Juries Law Reform

1. Jury amendment (Verdicts) Act 2006 (NSW)

   • “to allow the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict”

2. In the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021

   • “improve juror understanding of the complexities of sexual offending and reporting”

3. NSW Government’s Jury Amendment Bill 2023

   • a proposal to reduce time before a jury can be excused from delivering a unanimous verdict

   • President of the Law Society of NSW Brett McGrath

     • “reduces an important safeguard for majority verdicts”

     • “represents an erosion of the importance of the jury’s role in our justice system”

Juries Balancing rights

1. Jury amendment (Verdicts) Act 2006 (NSW)

   • “to allow the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict”

2. “Former Sydney swim coach and MasterChef contestant guilty of sexually abusing 11 children” The Guardian 2023

   • “Jury found him guilty on all counts”

   • the judge said she would take a majority verdict.

   • VCAL spokesman

     • “spare some victims the ordeal of having to give evidence at retrials.”

3. “Drug trial abandoned after jurors play Sudoku” ABC 2008

   • “a juror admitted she and four others had been playing Sudoku while evidence was being heard.”

   • NSW Council of Civil Liberties vice-president

     • “it is essential that jurors listen”