Module 12 – Preliminary Examination & Trial of Indictable Offences

Course Recap & Context

• Weeks 1–2: Introduction, criminal responsibility of young persons, structure of offences (elements of $ext{actus reus}$ and $ext{mens rea}$).
• Weeks 3–4: Fatal offences against the person – homicide, murder, manslaughter.
• Week 5: Non-fatal offences against the person + first assessment.
• Subsequent weeks:
  • Sexual offences.
  • Property offences.
  • Defences (self-defence, insanity, intoxication).
  • Attempts & secondary liability (Module 10).
  • Procedure: arrest, notices to appear, summons, bail (Module 11 – pre-recorded).
• Module 12 (today): Preliminary examination & trial of indictable offences → completes “full circle” from offence definition to verdict.

Learning Objectives for Module 12

• Acquire a working map of the Queensland criminal trial process.
• Locate and interpret the governing statutes (Criminal Code, Justices Act, Jury Act, District Court Act, etc.).
• Understand double-jeopardy doctrine in Qld and its modern statutory reforms.

Where Are Trials Heard?

• $93\% \text{–} 96\%$ of all criminal trials occur in the Magistrates Court (MC).

  • Reasons: time, cost, reduced backlog.
  • MC has original jurisdiction over:
  • Simple offences (Summary Offences Act 2005 (Qld)).
  • Regulatory offences (e.g.
    ticketing).
  • MC can also hear certain indictable offences summarily under Ch 58A of the Criminal Code (ss 552A–552BB).
  • Law-reform driver: administrative efficiency & economy.
  • Accused may prefer summary hearing because: no jury; sentencing ceiling limited to $3$ years’ imprisonment (s 552H Criminal Code); conviction recorded as a simple offence.

• Superior courts (= District & Supreme): hear the minority of cases; jury trials become salient.

• Commencement mechanisms (4):

  1. Committal by a magistrate.
  2. Ex officio indictment (DPP files directly).
  3. Coroner’s referral (not covered in depth).
  4. Private prosecution (rare).

Private Prosecutions

• Common-law right retained in Qld: any person (often a victim or an environmental NGO) may institute a prosecution.
• Practical rarity because:
  • No police investigatory powers; burden of proof $\text{beyond reasonable doubt}$ remains.
  • Cost borne by private prosecutor.
• No statutory bar, but the DPP can take over or discontinue if public-interest demands.

Committal Hearings (Justices Act 1886)

• Preliminary filter: Magistrate asks, “Is there sufficient evidence to commit for trial?”
• Since the Moynihan reforms (≈ 2010): predominately paper committals; live witnesses & cross-examination only on leave → defence loses an early testing opportunity.
• Pathways post-committal:
  • Matter heard summarily in MC (if ss 552A-BB applicable).
  • District Court (DC) if maximum penalty $\le 20\,\text{yrs}$ (s 61 DC Act 1967).
  • Supreme Court (SC) for >20\,\text{yrs} (e.g.
    murder).
• Indictment must be presented within $6$ months of committal (Justices Act s 590(1)) – promotes certainty for accused (esp.
  those on remand).

Ex Officio Indictment

• Latin: “from (the power of) one’s office.”
• DPP files indictment without (or despite) committal.
• Reviewable only where acceptance would constitute an abuse of process (e.g.
  unfairness by non-disclosure).

The Indictment

• Written charge sheet → must state precisely the what/when/where so defence can prepare.
• Default rule: 1 charge per indictment.
• Joinder (ss 567–569 Criminal Code):
  • Multiple charges or co-accused if a single nexus.
  • Defence may seek severance when prejudicial (e.g.
    weak evidence on Thurs–Fri burglaries piggy-backing on strong Monday proof).

Pre-Trial Directions & s 590AA Applications

• Either party may seek rulings before jury empanelled:
  • Joinder/severance.
  • Admissibility (e.g.
    confessions post-illegal arrest).
  • Stay of proceedings.
  • Judge-alone (no-jury) order requests.

Arraignment & Pleas

• Arraignment = reading the indictment + defendant asked, “How do you plead?”
• Permitted pleas: guilty or not guilty (not “innocent”).
• Accused may change to guilty any time before verdict → often after plea negotiation (“sentence discount”; early plea may earn ≈ $25\%$ reduction).

Jury or No Jury?

• Right to jury derives from $\text{Australian Constitution}$ (and historically Magna Carta) – mirrored in Criminal Code.
• No-jury order (Jury Act 1995, s 614):
  • Either side can apply; accused must consent.
  • Judge balances fairness; media prejudice is common ground (e.g.
    R v Ferguson – child-sex offender; initial stay overturned on appeal; judge-alone trial; eventual acquittal).

Representation

• s 616 Criminal Code: right to be defended by counsel – no concomitant right to state funding.
• Options:
  • Private retainer.
  • Legal Aid if: (i) below means test; and (ii) charged with a serious offence (Dietrich v The Queen).
• Courts may impose a temporary stay until Legal Aid decides, to secure fair trial.
• Self-representation unavoidable if neither option available → accused cross-examines witnesses personally (acute issue in sexual-offence trials).

Jury Selection (Jury Act 1995)

• Panel drawn from electoral roll; exclusions (e.g.
  legal practitioners on duty).
• Empanelment:
  1. Clerk spins ballot; calls “Juror 34”.
  2. Walk to box; each side may exercise peremptory challenge (no reason): $8$ each.
  3. Unlimited “for cause” challenges (bias, relationship, etc.).
• Criminal jury: $12$ members $+3$ reserves (ss 33–34).
• Discharge possible pre- or post-swearing.

Verdicts

• Unanimous (default): $12/12$ – required for murder (s 59A Jury Act).
• Majority: $11/12$ (or $10/11$ if one juror discharged) – permissible for other indictable offences.
• If unable to agree → “hung jury”: judge issues Black direction (from R v Black) urging further deliberation; persistent deadlock → jury discharged; DPP may retry (double jeopardy not engaged).

Trial Dynamics

• Order of proof: Crown bears evidential + legal burden $\Rightarrow$ prosecution case first.
• Defence may elect to call evidence; if so, goes second (s 618).
• Examination sequence for each witness:
  1. Examination-in-chief (direct).
  2. Cross-examination (opponent).
  3. Re-examination (clarify new matters).
• Closing addresses: normally defence last unless defence called evidence, then prosecution closes last.
• Judge’s summing-up: legal directions, burden & standard, elements, available verdicts.

Voir Dire

• Mini-hearing in absence of jury; judge rules on:
  • Admissibility (e.g.
    disputed confession).
  • Defence submission “no case to answer”:
  • Made after Crown closes.
  • Judge assesses evidential burden.
  • If upheld → jury directed to acquit.

Prosecution Discontinuance – Nolle Prosequi (“nolly”)

• Crown unilaterally stops proceedings; accused discharged (not acquitted).
• Can re-indict later → potential for abuse.
• Court may refuse to record nolly where discontinuance would itself be an abuse of process (e.g.
  delaying tactic on eve of verdict).

Stay of Proceedings

• Court-ordered suspension founded on right to fair trial.
• Types:
  • Temporary stay – e.g.
    key witness ill, Legal Aid pending.
  • Permanent stay – proceedings will never resume (very high bar; pre-Ferguson publicity cases; loss of vital evidence).

Double Jeopardy & Double Punishment

1. Same offence cannot be retried after conviction or acquittal.
2. Confession excluded at trial cannot be used in later prosecutions.
3. Carroll principle: acquittal immune from collateral attack via other charges (e.g.
   perjury).
4. No double punishment for same criminal act (e.g.
   stealing under both Criminal Code & Summary Offences Act).

R v Carroll (2002)

• Carroll acquitted of baby Deidre Kennedy’s murder (1973).
• Later convicted of perjury (for denying involvement).
• High Court quashed perjury conviction: would undermine initial acquittal → double jeopardy.

Statutory Reform in Qld

• Criminal Code ss 678A–678C (2007, amended 2014 & 2024).
• Retrial permissible where:
  • Accused previously acquitted of murder or 10 other listed serious offences (sexual & violent) – $11$ offences total post-2024.
  • Prosecution obtains fresh & compelling evidence $\rightarrow$ DNA, new tech, credible witnesses.
  • Interests of justice test satisfied.
• 2014 amendment: provisions operate retrospectively.
• Prompted by forensic scandals (e.g. Qld DNA lab 2022 inquiry; podcast Shandee’s Story).
  • Unsettled question: is re-tested, formerly mishandled DNA “fresh & compelling”? Only one Qld application so far – rejected (insufficient chain of custody).

Practical/Policy Implications

• Efficiency vs fairness tension in summary disposition & paper committals.
• Media ecosystem (24/7 & social) increases demand for judge-alone option.
• Funding gaps create self-represented defendants – impacts trial length & witness trauma.
• Double-jeopardy reform reflects societal appetite for finality vs error-correction in era of advancing forensic science.

Statutes & Key Sections At A Glance

• Criminal Code (Qld):
  • Ch 58A (ss 552A–552BB) – Indictables triable summarily.
  • s 510 – MC max sentencing $=3$ yrs.
  • ss 567–569 – Joinder & severance.
  • s 590AA – Pre-trial directions/rulings.
  • s 614 – No-jury order.
  • ss 678A–C – Double jeopardy exceptions.
• Justices Act 1886 – Committals; 6-month indictment rule.
• District Court Act 1967 – Jurisdiction up to $20$ yrs (s 61).
• Jury Act 1995 – Empanelment, majority verdicts (s 59A).

Real-World Connections

• Popular culture (CSI, Law & Order) glamorises jury trials, but >90\% of Qld matters never see a jury.
• Social media magnifies pre-trial bias → growth in judge-alone trials.
• Forensic technology both convicts and exonerates; mis-steps (Qld DNA lab) trigger legislative overhaul.
• Ethical debate: victims’ desire for closure vs defendants’ right to finality.

Revision Tips

• Map each procedural stage: Arrest → Bail → Committal → Indictment → s 590AA rulings → Arraignment → Jury selection → Evidence (voir dire) → Summation → Verdict.
• Memorise jurisdictional cut-offs (MC $3$ yrs, DC $\le20$ yrs, SC >$20$ yrs).
• Link key cases to doctrines: Moynihan (paper committals); Ferguson (no-jury); Dietrich (legal representation); Black (hung jury); Carroll (double jeopardy).
• Practice spotting abuse-of-process triggers (ex officio indictment, nolle prosequi, delays).