Criminal Trials Short Answer Test

PROCESS: 

Pretrial: 

• Arrest / no arrest 

• Investigation 

• Arrest 

• Hearing at the magistrates to determine the date for the hearing 

• DPP case preparations 

• Hand up brief: Defendant receives the hand up brief from the DPP. The hand up brief contains prosecution evidence against the defendant to inform the defendant about the evidence against them. This allows the defendant to prepare their challenging of the evidence in court. 

• Committal mention: A hearing in the magistrate's court. Defendant enters a plea. Magistrate assesses prosecution evidence against the defendant to see if the case has a likelihood of success. 

• Plea 

• Guilty: There is no dispute, the DPP alleges the defendant committed the offence and the defendant agrees. The case proceeds to sentencing. 

• Not guilty plea: There is a dispute to resolve by trial. 

• Bail or held on remand: 

• Bail is granted to defendants if they are not a danger to the community or at risk of flight. Bail requires an assurance, usually money, that the defendant will appear for trial. 

• Remand: the defendant is held in custody until trial. Defendants who are dangerous or at risk of flight are remanded in custody. 

Trial: 

• Opening addresses: outlining of the case, explaining the alleged crime, evidence presented and the law they argue supports their case / defending. 

• Prosecution opening address 

• Defence opening address 

• Examination of witnesses (prosecution) 

• Examination in chief 

• Cross examination 

• Re-examination 

• Examination of witnesses (defence) 

• Examination in chief 

• Cross examination 

• Re-examination 

• Closing addresses by prosecution and defendant 

• Judge: 

• Jury and verdict: The judge summarises the evidence and guides the jury on the standard of proof and the significance of the evidence to determine the guilt of the person beyond a reasonable doubt. The jury then returns their verdict. If found guilty, the jury must remain unanimous. 

Post trial: 

• Sentencing: 

• Mitigating factors 

• Aggravating factors 

• Mandatory sentencing 

• Appeals 

CRIMINAL TRIAL PROCESSES STRENGTHS AND WEAKNESSES: 

ARREST/SUMMONS: 

Strengths: 

• Police must inform accused of their rights before arresting or questioning them  

• Undermined in Gene Gibson [2010]  

• Arrests, based on reasonable suspicion, prevent repeat offending and interference with the judicial process  

• Summons prevent unnecessary arrests but still require an accused to appear in court, with penalties for not doing so 

Weaknesses: 

• Police may use excessive force to arrest someone, infringing on their rights as an accused. 

• Police raid on Hares and Hyenas, injury to Nik Dimopoulos in 2019 

• Summons that are ignored or improperly executed may delay the trial process 

BAIL: 

Strengths: 

• Balances on the presumption of innocence with the protection of society, ensuring that a person is not held in custody without reason 

• Statutory principles and criteria are set out in the Bail Act 1982 and used to make determination 

Weaknesses: 

• Risk of reoffending, which may infringe on the rights of victims (eg safety) 

• Reoffending on bail may reduce public confident in the judiciary. This may also lead to reform of the bail system that infringes of the presumption of innocence. 

COMMITAL HEARING: 

Strengths: 

• Save time and resources by filtering out weak cases that unlikely to succeed due to insufficient evidence 

• Ensures an efficient allocation of resources; in more serious cases are dealt with in higher courts. 

• Accused is informed of the prosecution’s case, whilst prosecution is given opportunity to withdraw charges. Burden is on them to establish that sufficient evidence exists. 

Weaknesses: 

• May add to the cost of legal representation, due to extending the trial process. Unrepresented defendants may confuse, increasing the risk of unfair outcomes. 

• May delay trials and, in stronger cases, be seen as unnecessary. This can compound the stress and victim(s) 

• Westpac Banking Corp v Bell group (No. 3) [2012] lasting 14 years due to delays. 

RULES OF EVIDENCE: 

Strengths: 

• Ensures high quality evidence is presented to court, protecting the parties and the interests of justice 

• Consistency, based on a system of precedent, leads to efficiency- fewer appeals on basis of error or miscarriage of justice. 

Weaknesses:  

• Parties may seek to exploit rules of evidence (undue reliance on expert opinion which confuses juries etc) 

• Honeysett v Queen [2014] 

• Not all evidence may be presented – may depend on the skill of legal representative in making submissions and understanding case law. 

EXAMINATION IN CHIEF AND CROSS EXAMINATION: 

Strengths: 

• Ensures that firsthand evidence is provided, which can be cross referenced against official documents 

• Parties can test the evidence of one another, determine the credibility of a witness. Parties retain control of trials 

• Processes to support victims and witnesses (prohibition of personal cross examination of witness by defendant) 

Weaknesses: 

• Ability of legal representation, as reflected by cost, may determine effectiveness of EIC and cross examination 

• Risk of victims and witnesses being re-traumatised 

• Prohibition on leading questions in EIC may confuse self-represented defendants 

• Witness testimony may change, particularly if there are delays in the case or significant time has passed  

• State of WA v Edwards 2020 

JUDGEMENT AND JURY DIRECTIONS: 

Strengths: 

• Judge is required to provide directions to the jury reiterating their role and outlining relevant aspects of the law. This clarifies misconceptions and addresses preconceptions 

• Juries are independent of the parties and judge – may judge accused justly. Alternatively, applications can be made for judge only trials. 

Weaknesses: 

• Research from the Jury Project states that the average length of jury directions in WA is 95 minutes (5-day trial), 116 minutes) 10-day trial, and 155 minutes (20-day trial). 

• Jury may be prejudiced by media and exposure to external influence 

• Juries may be swayed by either party without reference to evidence (appealing to emotion in opening or closing statements) 

SENTENCING: 

Strengths: 

• Sentencing act 1995 WA attempts to balance justice outcomes (eg rehabilitation, retribution, protection) by requiring judges to take multiple factors into account 

• Requirement of sentencing to be evidence based, with parties given equal opportunity to make submissions 

• Consideration of broad range of sentences (eg suspended, community-based orders) and parole prioritises community reintegration. 

Weaknesses: 

• Difficulty balancing sentencing requirements (eg legislative provisions, mitigating factors, aggravating factors) 

• Difficult of satisfying parties: punishment may be perceived as manifestly excessive or lenient, with both impacting confidence in the judicial system 

• Mandatory sentences limit the extent to which context and mitigating factors can be considered, which may result in a miscarriage of justice. 

APPEALS: 

Strengths: 

• Reinforces presumption of innocence by providing opportunity to review a previous decision, which may have been based on error of law 

• Pell v Queen 2020 

• Dietrich v Queen 1992 

• Limited grounds for appeal discourage abuse of process 

• Provides for the public accountability of the judiciary 

• Cesan v Queen 2008 

Weaknesses: 

• Requirement of seeking leave (permission) to appeal after 21 days is restrictive 

• Appeals compound the costs of criminal cases and are less accessible to the disadvantaged 

• May cause further delays 

• Westpac Banking Corp v Bell Group No.3 2012 

• Successful appeals may impact public perception of judicial system 

• Legitimacy of outcome in Pell v Queen 2020 

Indictable: A serious offence 

Summary: A minor offence 

Prosecution: The party who accuses the person of a crime (the DPP). 

Defendant: The accused person/party. 

Beyond reasonable doubt: Guilty without any doubt 

Ratio decidendi: The judge’s reason for deciding  

Obiter Dicta: A judge’s opinion 

Stare decisis: To stand by what has been decided – precedents. 

Standard of proof: Evidence cannot be circumstantial, hearsay or ___. Evidence must be relevant, clear, and reliable/true. 

Burden/onus of proof: The burden of proof rests on the prosecution to present the evidence against the defendant. The defendant is not required to present any evidence as they are being accused of a crime. 

Fair trial: A fair trial ensures a miscarriage of justice does not occur; everyone has this right. Three elements example: 

• Presumption of innocence before proven guilty. 

• The right to an interpreter 

• The right to be represented by a lawyer. 

Booklet: 

• No one is presumed guilty at the beginning of the process 

• The pre-trial processes for the collection and examination of relevant evidence are fair, consistent, and timely. In criminal law, investigation is both thorough and impartial, and respects the legal rights of suspects, witnesses, and victims alike. 

• Parties have adequate access to legal representation. In a criminal trial, the onus is on the prosecution to prove their case beyond reasonable doubt. Cases are conducted under fair and consistently applied rules of procedure 

• Disputes are adjudicated by an independent judge and/or an unbiased jury 

• Resolutions of disputes are just. In criminal law sanctions both protect society and deter further criminal actions by the defendant and by others, as well as rehabilitating the accused and providing resolution for the victim. 

Natural justice: Natural justice is a principle of justice incorporating the rule against bias and the right to fear hearing. Fair processes for determining the truth in a dispute, also known as ‘due process.’ Courts and tribunals have a duty to act fairly. Natural Justice requires the right to be heard, the right to be treated without bias, and a decision being based on relevant evidence. 

• The right to be heard 

• The right to be treated without bias 

• The right to be based on relevant evidence. 

JURIES: 

Juries: Juries are a group of 12 to 16 people who are enrolled to serve as the impartial adjudicator on a criminal trial with a judge’s guidance. Juries are selected after conducting a thorough application process to determine if they are eligible to serve. Juries represent a cross-section of the community and uphold community views and values in the judicial system, raising public confidence and legal knowledge. 

Jury process: A group of 12 to 16 people are randomly selected from the juror pool through the WAEC if they do not have a past criminal record or other impacting influences towards their impartiality. When selected, jurors receive a summons to arrive at a specific location, date, and time. 

DECRIMINALISATION: CURRENTLY BEING IMPLEMENTED AS A REFORM 

The current reform that is being implemented is concerned with the objective to prevent significantly minor crimes that does not affect anyone else except the individual from being imprisoned to decrease the number of trials and prisoners in WA. This reform disallows those who consume or produce a small portion of cannabis from being imprisoned, permits public drinking that does not result in physical or mental harm to others. Decriminalisation also aims to reduce prisoners from committing more crimes again due to their lack of money and employment. Furthermore, secrets and tips can be shared in prison amongst inmates about how to commit certain crimes, the reform aims to reduce this by acquitting minor offenders of the law. 

A teenager was imprisoned and spent 64% of his life in prison, resulting in a lesser chance of employment, becoming educated, and faced significant mental health issues because of trauma. The teenager’s case was highlighted by the minister of correction services who dismissed his imprisonment period due to the unit 18 wrongful imprisonment. Unit 18 is a dehumanising cell in the adult prison that forces people to be malnourished and isolated from the rest of the inmates. 

THE CRIMINAL PROCEDURE AMENDMENT (TRIAL BY JUDGE ALONE) BILL 2017: REFORM: 

was a reform introduced into the WA Parliament in late 2017 by Liberal Democrat Aaron Stonehouse. The current law stated that the accused is entitled to trial by jury in s80 of the constitution, however, if they are charged with an indictable criminal offense in the District or Supreme Court they must be before a jury, unless the court makes an order for a judge alone trial under s118. The prosecution applies for a judge alone trial under s118 with the consent of the accused. The main change proposed by the bill was to amend the criminal procedure act 2004 so that the court would be required to allow an application for a trial by judge alone unless it is not in the interest to do so. If the accused requests a trial by a judge alone, the court is obliged to adhere to the request unless it is not in the interests of justice to do so. 

Reasons for: 

• the accused would have increased liberty to be tried by a judge alone; increase transparency in the legal system. how: judges prepare written reasons for decisions as opposed to juries who don't have to do that. 

• The average times of the trials would be reduced 

• reduce costs associated with hung juries  

• The accessibility of the media and its influence would make prejudice and influence the juries' decisions resulting in an unfair trial as opposed to judge alone 

Reasons against: 

• The reform also reduced transparency in the legal system as participation was removed by the removal of juries. Public confidence lowered and people won't have as much knowledge of the legal system 

• Reform requires more judicial resources; more judges. 

• An additional time would be required to increase the judge's ratio decidendi. 

SENTENCING DETERMINATION: 

After conviction sentences: 

1. Imprisonment; non-parole minimum time offender must spend in custody before being eligible for release on parole. Case considered by parole board. Issued to punish the offender, protect the community. Unlikely to be redeemed. 

2. Home detention; sentence in home. May allow the offender to leave the home for defined periods of time, supervised by electronic monitoring and regular visits to correction officers. 

3. Community based order/ correction orders; unpaid work int he community, attend rehabilitation, psychological assessment, drug treatment. Must adhere to strict conditions 

• Not committing another offence 

• Notification of address/employment 

• Not leaving state etc without permission 

• Refraining from consuming alcohol 

• Not associating with certain people 

• Staying away from specified places 

• Abiding by a curfew 

4. Fine; Amount according to penalty units in line with inflation. Financial situation of offender may be another punishment alongside other sentences. 

MANDATORY SENTENCING: 

Mandatory sentencing: Mandatory sentencing in the predetermined sentence of a specific crime that cannot be decreased by mitigating factors, only increased by aggravating factors. 

Strengths: 

• Mandatory sentencing acts a deterrent for the public to prevent them from committing crimes as they are fully aware of the minimum punishments imposed. 

• Consistency in the judicial system prevents unfairness due to sentencing and different views. 

• Public confidence in the judicial system as they are required to set a minimal sentence through mandatory sentencing laws to prevent the criminal from acquittal without punishment. 

Weaknesses: 

• Mandatory sentencing must unfairly impose harsh or unnecessary imprisonment and other punishments for a minor act. 

Case studies relevant: 

• A 12-year-old Indigenous boy stole a 70 cents freddo frog and faced a maximum fine of $6000 and 7-years imprisonment before police dropped the charges. 

• An impoverished Indigenous woman stole second hand clothes from the Salvation army and was forced to pay $1000 in fines despite her severe lack of money to even cater for herself to survive. 

ADVERSARIAL: 

Adversarial system: A system of the law which bases its judicial system on previous established precedents according to common law. The adversarial system focuses on competition using two competing parties in front of an impartial adjudicator; a judge or a jury, to determine the sentencing and the guilt of the defendant. 

Strengths: 

• Cross examination allows for the rigorous testing of the credibility, relevance and reliability of the evidence presented by the opposing party 

• The judge has no role in the investigative process and solely determines the verdict based on the competing presentations of evidence and facts by the parties 

• A jury can be used as a cross-section of the community who represent its values and views in cases. 

Weaknesses: 

• Aggressive cross examination by lawyers may result in PSTD or traumatic flashbacks for witnesses, causing them to become nervous and change their testimony according to the lawyer’s needs. 

• Due to the extensive evidential, trial, post-trial and pre-trial processes, the system can have severe delays of justice. This can last up to many years. 

• Due to the lack of jury regulation, juries may be influenced by the media and other influencing evidence of the case. Furthermore, juries can also be emotionally influenced by people who they show empathy or sympathy for, influencing their verdict. 

INQUISITORIAL: 

Inquisitorial system: A system of law which bases its judicial system on the code of law established in the system. This system aims to find the truth through the role of an investigative and determining impartial adjudicator; a judge or a jury, to determine the sentencing and the guilt of the defendant. 

Strengths: 

• Investigation done thoroughly, judge-led investigation can uncover more evidence 

• There is a reduced bias as the judge’s active role reduces party bias and more efficiency as there are potentially quicker resolutions 

• Parties cannot hide, manipulate, remove, or contaminate evidence as the judge solely investigates the case. Resulting in a verdict based off the truth rather than the presentation of parties, leading to less miscarriages of justice. 

Weaknesses: 

• The defence has fewer opportunities to challenge the evidence presented by the judge and prosecution. 

• The judge or jury can commonly be influenced due to their investigative role in the case. This may lead them to show sympathy or anger towards a person and the determined guilt/verdict/sentencing may be critically imposed or lightened as a result. 

Difference in the trial systems: 

CASE STUDIES 
Gene Gibson [2010]: Appeal [2017] 

Gene Gibson 2010 and 2017 (appeal) was concerned with the murder of Joshua Warneke along the Old Broome Road. Warneke's postmortem examination concluded that the cause of death was a head injury with acute alcohol intoxication and extensive fracturing of the skull. Expert opinions stated that there was no possibility that his injuries were caused by being hit by a car. 2 years after the incident, Gibson was identified as the main suspect of the homicide.  In 2012 Gibson was charged with the murder of Joshua Warneke. In 2014 Gibson applied to the WA Supreme Court to make sure the interviews he did were not placed into the trial as he had not been told his rights. CCC investigation found that WA police had been involved in misconduct during the investigation and arrest of Gibson. 3 officers faced disciplinary charges due to a breach in Criminal Investigation Act 2006 (WA). Mr Gibson has cognitive impairments which caused him to agree with false statements, and due to his limited English language skills, he couldn't understand his rights, cautions, reason for arrest, couldn't read anything and he could not speak English well enough to communicate about complex issue. 

Impact on the judicial system:  

Commissioner O’Callahan stated that, after this case, in all cases when you go into an Aboriginal community to interview either a witness or a suspect, you will need an interpreter who is specialised in that language to provide the right sort of support... this is a very significant change. And will have a very significant resource implication on the WA Police and Government in general. The adversarial system in WA upholds the principles of natural justice to a significant extent, however, injustices still occasionally occur. Thus, there is a need for further reform, especially with regards to false convictions. The 2010 Gene Gibson case prominently displays the WA justice system’s, especially in regard to the conduct of police, and their lack of interpretation services, forced interviews and __. Gene Gibson was an Indigenous man who spoke Pintupi Aboriginal language, he was suspected and later accused of the murder of Joshua Warneke along the Old Broome Road. Mr Gibson was psychologically assessed, resulting in the recognition of his cognitive impairment and lack of English comprehension, especially written English. Gibson was not informed of his rights or cautions prior to the interview, despite his lawyer asking police to resist the interview, they continued for another 6 hours. 

Outreau trial [2004]: 

The Outreau Case involved many accusations of child sexual abuse in Outreau, northern France, in the early 2000s. A total of 17 people were accused of being part of a paedophile ring, the case relied heavily on the testimony of one of the alleged victims, who later went back on much of her story. The pre-trial investigation involved extensive interviews and the collection of evidence by the judge. In 2004, 13 of the accused were brought to trial, seven were convicted and 6 were acquitted. After appeals, the convictions of the 7 were overturned and eventually exonerated. The case highlighted the weakness of the inquisitorial system, including the potential for judicial bias and the dangers of relying on a single source of testimony. The affair resulted in calls for reforms, including better oversight of investigating judges and improvements in the treatment of suspects and witnesses. 

Lloyd Rayney [2007] 

In 2007 Perth Barrister Lloyd Rayney was named as the prime and only suspect of the murder of his wife, Corryn Rayney, in Kings Park. Corryn was found in a shallow bush in August of 2007. Police named the barrister, Lloyd Rayney, as the prime and only suspect of the murder of his wife, this negatively impacted Rayney as he lost a significant amount of money and clients, as well as facing emotional turmoil from the loss of his wife. Rayney sued the WA police department for defamation due to these statements made early in the investigation. Due to the high-profile nature of the case, the case was tried by a judge alone to reduce potential prejudice and bias from a jury. 

Cardinal George Pell [2018] 

AUSTRALIAN Cardinal George Pell was charged with 5 sexual offence cases in December 2018 (2nd trial, first was discharged 3 months earlier) and the jury unanimously found Pell guilty of all charges and in March 2019 was sentenced to 6 years in prison. In June 2019 Pell’s defence team appealed to the Victorian Supreme Court of Appeal on grounds that the jury could not have avoided reasonable doubt based on evidence presented in the trial. The Court dismissed the appeal however Pell’s defence team then sought special leave to appeal to the High Court. On 7 April 2020, the High Court allowed the appeal and quashed the original conviction, finding that that there were ‘solid obstacles’ preventing a jury from reaching a guilty verdict BYD. In Pell’s second trial it is likely that the jurors were predisposed to believe Pell was guilty and thus did not take into account the evidence presented in court – the High Court also found that some of the witnesses in the original trial were not credible – however the fact that Pell’s defence was able to appeal means that justice prevailed. Cardinal Pell’s 2nd trial in November 2018 the jury may have been biased due to media coverage; however, Pell’s defence team successfully appealed, and the High Court quashed his conviction 

Bradley Edwards (Claremont Serial Killer) [2020] 

Bradley Edwards, known as the Claremont serial killer, was suspected of the murders of Sarah Spiers, Ciara Glennon and Jane Rimmer, however, he was only charged for the murders of Glennon and Rimmer due to the judge’s claim that Edwards could not be proved beyond reasonable doubt for the murder of Spiers. The trial upheld the natural justice principle of being tried without bias and prejudice through his application for a trial by a judge alone, as the high-profile case had been publicly criticised and theorized by sources online. This would result in a lack of impartiality and bias if he was tried by a jury.  

Arthur Freeman [2009] 

Arthur Freeman was found guilty of murdering his four-year-old daughter by throwing her off the city's Westgate Bridge in 2009 during peak-hour traffic. Freeman carried his daughter to the railing and dropped her 58 meters to her death as his two songs, aged two and six, watched on. Freeman pleaded not guilty to the murder on the grounds of mental impairment. The judge believed that he could not be redeemed.