Lecture 18 LR

Introduction

  • Welcome and acknowledgment of assignment submissions.

  • Introduction of Dr. Janie Tudor Owen, a specialist in criminal law.

  • Acknowledgement of the Traditional Owners of the land, the Wadjuk Noongar people, and respects to Elders past, present, and emerging.

About Janie Tudor Owen

  • Joined Murdoch University in February.

  • Teaches the Policing and Crime Unit.

  • Former State Prosecutor at the Office of the Director of Public Prosecution (ODPP).

  • Former lecturer in criminology at ECU.

  • Will be teaching criminal law (LLB 130) next semester.

Course expectations

  • Experiences with crime vary among students.

  • Acknowledge the potential for insensitivity when discussing traumatic events.

  • Open to questions, but will indicate if unable to discuss certain topics.

  • Worked as a state prosecutor while starting at Murdoch but has since resigned.

Class interaction

  • Encourages questions about crime-related topics (e.g., juries, prosecution of different crimes).

Crime media

  • Does not watch a lot of crime TV shows.

  • Recommends "The 12" for a fairly accurate depiction of a jury trial.

Court Visits

  • Courts (Magistrates Court, District Court, Supreme Court of Western Australia) are open to the public.

  • Housekeeping rules: no hats, no sunglasses, respectful behavior, bowing to the crest, quietness; no note-taking without permission.

  • Children's Court is not recommended for public viewing due to the vulnerability of individuals involved.

  • Children's Court handles minor to serious criminal offences and care and protection matters.

Civil vs. Criminal Law

  • Often seen as polar opposites but not entirely binary.

  • Example: Assault can be pursued both criminally and civilly.

  • Civil actions for sex offending could minimize trauma to complainants/victims.

Language

  • Complainant: someone who makes a complaint to the police.

  • Victim: someone who has been plead guilty or found guilty.

  • Suspect: becomes an accused, then an offender if found guilty.

  • Terminology indicates the stage in the justice system.

Differences

  • Criminal law: State vs. individual (accused); purpose is community protection, punishment, rehabilitation.

  • Civil law: Disputes between individuals/entities; purpose is enforcing rights (specific performance) or compensation.

Compensation

  • Available in criminal proceedings via reparation orders to the victim.

  • Criminal injuries compensation: State pays, then may seek recompense from the offender.

Standard of Proof

  • Criminal law: Beyond reasonable doubt (high standard).

  • Civil law: Balance of probabilities (50/50).

Outcomes in Criminal vs. Civil Law

  • Criminal: Dispositions found in the Sentencing Act 1995 (WA), with a hierarchy of dispositions.

  • Civil: Damages, injunctions, specific performance.

Types of Matters

  • Criminal: Sex offences, drug offences, property offences, violence offences, traffic offences, fraud offences.

  • Civil: Negligence, torts, breach of contract, defamation, employment issues.

Procedures

  • Differ significantly between civil and criminal law.

Crimes Act and Criminal Code

  • Commonwealth crimes are found in the Crimes Act; state crimes are in the Criminal Code (WA).

  • ODPP Commonwealth (CDPP) deals with the Crimes Act.

  • State DPP manages files and appears in various courts.

  • Early plea discounts differ between Commonwealth and state offences.

  • WA is a codified state, but common law principles inform criminal law practice.

Summary vs indictable offences

  • Summary offences (less serious) are prosecuted in the Magistrate's Court.

  • Indictable offences (more serious) are prosecuted in the District Court or Supreme Court.

  • Wording in the Criminal Code differentiates the two; "offence" indicates summary, "crime" indicates indictable.

  • Either way offences can be dealt with either way.

Timeline of Criminal Proceedings

  • Police investigate with powers found in specific acts.

  • Improperly obtained evidence becomes a problem.

  • Police arrest or charge, informing the arrested person of their rights.

  • Accused may participate in an electronic record of interview.

  • Accused is either released on bail or held in custody.

  • Initial appearance in Magistrates Court. Several things may happen:

Initial appearance

  • For murder, cases go to Stirling Gardens Magistrates Court. Other homicide offences may go here as well.

  • Summary offences proceed in Magistrates Court.

  • Indictable matters are adjourned for further disclosure and a committal hearing, then go to the DPP.

Decision Making

  • Police have discretion in charging but must follow guidelines.

  • Examples of discretion: charging or cautioning a child based on their capacity to understand right from wrong.

  • Public frustration arises when similar cases have different outcomes.

Role of the DPP

  • Indictable matters go to the DPP, where a file manager assesses them against prosecution guidelines:

    • Prima facie case

    • Reasonable prospects of conviction

    • Public interest to proceed

Public Interest

  • Considerations include the complainant's wishes, trauma, availability to give evidence, and circumstances that change over time.

Guilty pleas

  • Vast majority of charges are finalized with a guilty plea.

Trials Delays

  • Significant delays (e.g., two years for a District Court trial) due to COVID-19 backlogs which create ripple effects for all parties involved.

  • Most trials are for sex offences, which people don't budge on.

  • Jury trials were really hard post covid.

Prosecutors

  • WA Police, Commonwealth DPP, and State DPP are the three options.

  • State DPP offers significant mentorship and scaffolded learning for junior practitioners.

Defense

  • Legal Aid and Aboriginal Legal Service also offer opportunities, but with different resources.

How WIPOL do their prosecuting in summary

  • Swarm Police and uniformed officers follow the process with additional training.

Magistrates Court

  • Has a high workload, and police prosecutors work flexibly and adapt as necessary.

Legal practice

  • Start in Magistrates Court.

Court Hearings

  • Are published every day, good way to experience criminal law.

Judges and Magistrates

  • Magistrates Court: Magistrate sits at the front for trials and sentences, with a jurisdictional limit of three years imprisonment. There's no Jury.

  • District Court: Judge manages the trial and directs the jury on matters of law. The Jury finds the facts.

  • Section 118 of the Criminal Code provides for trials by judge alone if the accused agrees.

Directions given to the jury

  • Defense has a choice to make a decision if they want to give an opening address.

  • Closing address is what the State or Defence want you to make of the evidence, it is not evidence itself.

Verdicts

  • Guilty or not guilty

  • There is no hung jury in a Magistrate's court or trial by judge alone; a hung jury can happen if there is a jury.

  • A judge can give a majority direction for a jury verdict with 10.

  • Hung verdicts result in the matter being sent back for a trial listing; DPP decides whether to run it.

Sentencing

  • Takes place from the sentencing act

  • Mitigating factors and aggravating factors are analyzed.

  • Disputes about the facts can lead to a trial of the issues.

  • The defense gives a Plan of mitigation, they get a voice and they get context.

  • Conviction appeal or a sentence appeal can take place.

Barristers

  • You can go to the bar after being admitted, can elect to practice.

  • Can take briefs form the state or commonwealth. Can practise even in both.

Innocence Project

  • There are sayings that its better to have something about going free guilty people go free than one innocent person be convicted. I believe this to be true.

Best practicing crime

  • Be proactive from now in law school and into your junior practice when you don't have as much power to put things in place that will stand you in good stead, because law is super hierarchical.

Mental Health

  • Proactive mental health care

  • Private Psych

  • Build relationships with people that you can have really honest conversations with and who you trust to have them with you.

  • Find good mentors.

  • scaffolded Learning.