Criminal Court HierarchySTUDENT WORKBOOK

Schools Law Information Programme – Part 1, Criminal Law, Section 1

Funded by the National Community Crime Prevention Programme

Written by Sarah Dechow, LLB, LLMTeacher Resources by Kirsten Janke, B.Soc.Sc.(Hons).Illustrated by Andrew Christie, at A Good Looking ManDesign by Media on MarsCopyright Youth Legal Service Inc 2007Schools Law Information Programme - Part 1

ISBN 978-0-9580294-2-1

Acknowledgements:Youth Legal Service would like to thank Janine Douthie and Rosemary Kernohan, Society & Environment teachers at Eastern Hills Senior High School and their students for their comments and feedback in the preparation of Part 1 SLIP.

We would also like to thank Graham Cox, Senior Youth Worker and the young people at Swan City Youth Service for their comments and feedback in the preparation of Part 1 SLIP.

Lastly, Youth Legal Service would like to thank the Australian Government, Attorney-General’s National Community Crime Prevention Programme for providing the funding which made it possible for The Schools Law Information Programme to be created.

Published by Youth Legal Service Inc

8 Pier Street

Perth WA 6000

08 9202 1688

1800 199 006 (toll free for country WA callers)

yls@youthlegalserviceinc.com.au

Disclaimers:

The information in this book was current at the time of printing, but laws change. Information in this book cannot be regarded as legal advice in individual situations.

All the material presented in SLIP Part 1 is grounded in law and a key factor has been “keeping it real”. Some of the issues presented may be considered controversial, but it is important to recognise that this material is discussed in the context of the law and how it applies to our society.

Young people are depicted in most of the crime questions. We do this so that the students may relate to the questions better and thus learn and understand the law. It is not meant to suggest that young people commit most of the crime in society. Of total crime in Western Australia each year, on average only 14% of those crimes are committed by young people so the rate is very low.

PART 1: SCHOOLS LAW INFORMATION PROGRAMME

SECTION 1: CRIMINAL COURT HIERARCHY – STUDENT WORKBOOK

TABLE OF CONTENTS

Diagram – How an Adult Offender Gets to Court ...............................................1

Adult Flow Chart ...............................................................................................2

Criminal Court Hierarchy (Adults) ....................................................................3

Diagram – How a Young Offender Gets to Court ................................................6

Children’s Flow Chart ........................................................................................7

Children .............................................................................................................8

Quiz No. 1 ........................................................................................................ 11

Quiz No. 2 ........................................................................................................ 14

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Criminal Court Hierarchy – Adults

High Court5-7 Judges

Magistrates CourtMagistrate

Supreme CourtSingle Judge

Referral

ReferralAppeal

Appeal

Appeal

Appeal

The higher the Court, the more “power” the Court holds and the more “weight” the Court’s decisions carry

Court of Appeal3 Judges

District CourtJudge

Adult Flow Chart

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CRIMINAL COURT HIERARCHY

There are 2 criminal court systems in Western Australia, one system for Adults and one for Children. Within both those systems are lower courts, higher courts and appeal courts.

ADULTS

An “Adult” is a person who is aged 18 and over at the time the offence was committed. This person will be dealt with by the Adult Court System.

HOW DOES A MATTER GET TO COURT?

1. A crime is committed. This is referred to as an “Offence”.

2. The Offence is reported to the Police.

3. Police then investigate the offence. The Police may find enough evidence to charge a person.

4. The accused person is then “charged” by the Police and will be given a notice of when to appear in court.

5. The accused person (who is now referred to as an “Offender”) will go to the Magistrates Court first.

6. The charge may be:

• a “simple” offence in which case it will be dealt with in the Magistrates Court;

• an “indictable” offence which can be dealt with “summarily” in which case it may be dealt with in the Magistrates Court; or

• an “Indictable Offence” which will be dealt with by the District Court or Supreme Court

(See Diagram – How an Adult Offender Gets to Court)

1. THE MAGISTRATES COURT

The Magistrates Court handles most of the criminal matters and deals with all adults (those who commit an offence at aged 18 and over) on their first court appearance. In an average year, the Magistrates Court receives and finalizes about 85,000 criminal cases.

Some offences (usually the more serious offences) will be referred from the Magistrates Court to either the District or Supreme Court. (See Adult Flow Chart)

The Magistrates Court is presided over by a single Stipendiary Magistrate or on occasions 2 or more Justices of the Peace or 1 Justice of the Peace. An offender can have a trial in the Magistrates Court. The Magistrate will decide if

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the offender is guilty or not guilty and impose a sentence. In the higher courts, a trial is before a judge and a jury. It is the jury who decides whether the offender is guilty or not guilty and the Judge who imposes the sentence.

What Can the Magistrates Court Do?

The Magistrates Court has criminal jurisdiction to:

a) hear and determine a charge of a Simple Offence. What is a Simple Offence? It is “an offence that is not an Indictable Offence”. Examples of Simple Offences are Common Assault, Disorderly Behaviour in Public, taking part in an Unlawful Assembly, Unlawful Damage.

b) hear and determine a charge of an Indictable Offence that can be dealt with as a Simple Offence or “summarily”. What is an Indictable Offence? It is a more serious offence than a Simple Offence. Examples of Indictable Offences that can be dealt with “summarily” are Stealing, Assault Occasioning Bodily Harm,Unlawful Wounding.

c) refer a person charged with an Indictable Offence that cannot be dealt with “summarily” to the District Court or the Supreme Court for trial or sentence. Examples of Indictable Offences that cannot be dealt with “summarily” are Grievous Bodily Harm, Threats to Kill, Deprivation of Liberty, Criminal Damage by Fire, Robbery with Violence.

(See Adult Flow Chart)

APPEAL from MAGISTRATES COURT to SINGLE JUDGE in the SUPREME COURT

If an accused or prosecution is unhappy with the Magistrates Courts decision then they can appeal to a Single Judge in the Supreme Court. They must have grounds to appeal such as the Magistrate made a mistake of law, or that the sentence the Magistrate imposed was excessive or inadequate and that there has been a miscarriage of justice. (See Adult Flow Chart)

2. THE DISTRICT COURT

The District Court handles all Indictable Offences other than those which carry a term of life imprisonment or strict security life imprisonment (eg. wilful murder and murder). In an average year the District Court receives and finalizes about 3,000 criminal cases.

An offender who is referred to the District Court from the Magistrates Court may be there because he/she has pleaded “not guilty” and is there for a trial before a Judge and Jury comprising 12 members of the public. The offender may be there because they have pleaded guilty to an Indictable Offence and are to be sentenced by the Judge.

The District Court is presided over by a District Court Judge.

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APPEAL from DISTRICT COURT to COURT OF APPEAL in the SUPREME COURT

If an accused or prosecutor believes the Judge’s decision was wrong, then they may appeal to the Court of Appeal. This is to the Supreme Court usually before 3 Judges. An appeal can be made against the conviction, the sentence imposed, or a refusal to make an order that might be made as a result of a conviction. (See Adult Flow Chart)

3. THE SUPREME COURT

The Supreme Court deals with the most serious criminal offences that carry a term of imprisonment for life or strict security life imprisonment (eg. Wilful Murder and Murder). In an average year the Supreme Court receives and finalizes about 470 cases.

An offender who is referred to the Supreme Court may be there because he/she has pleaded “not guilty” and is there for a trial before a Judge and Jury comprising 12 members of the public. The offender may be there because they have pleaded guilty to a serious offence and are to be sentenced by the Judge.

The Supreme Court is presided over by a Supreme Court Judge

Appeal from SUPREME COURT to COURT OF APPEAL in the SUPREME COURT

If an accused or prosecutor is unhappy with the Judge’s decision, then they may appeal to the Court of Appeal. This is to the Supreme Court usually before 3 Judges. An appeal can be made against the conviction, the sentence imposed, or a refusal to make an order that might be made as a result of a conviction. (See Adult Flow Chart)

4. THE HIGH COURT

The High Court is the highest court in Australia. An Appeal against a decision by the COURT OF APPEAL can be made to the High Court and will be heard by either 5 or 7 High Court Judges. There is no right of appeal from the Court of Criminal Appeal and Special Leave to Appeal from the High Court must be obtained before a matter can be heard. (See Adult Flow Chart)

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Children’s Flow Chart

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CHILDREN

A “CHILD” is someone over the age of 10 and under the age of 18 at the time the offence was committed.

HOW DOES A MATTER GET TO THE CHILDREN’S COURT?

1. A crime is committed. This is referred to as an “Offence”.

2. The Offence is reported to the Police.

3. Police then investigate the offence and may find enough evidence to charge a person.

4. If the accused person is a child, they do not automatically go to court. The Police may, depending on the circumstances, “caution” the child or refer the child to the Juvenile Justice Team to be dealt with. If the Police decide to “charge” the child, then the child and their parent will be given a notice of when to appear in the Children’s Court.

5. The child (who is now referred to as a “Young Offender”) will go to the Children’s Court and appear before a Children’s Court Magistrate.

6. The charge may be dealt with by the Magistrate, if it is serious the matter may be referred to the President for sentencing or if the child elects can be referred to the District Court or Supreme Court for trial before Judge and Jury.

(See Diagram – How a Young Offender Gets to Court)

5. THE CHILDREN’S COURT

The Children’s Court has exclusive jurisdiction to deal with all criminal matters against children (those aged 10 and under the age of 18) and all adults who have committed offences before reaching the age of 18.

In an average year, the Children’s Court receives and finalizes about 8,500 criminal cases.

The Children’s Court currently has 3 full-time Magistrates and 3 part-time Magistrates. It has 1 President who is a District Court Judge.

Children’s Court Magistrates

In areas outside the Perth Metropolitan area, the courts do not have a specialist Children’s Court Magistrate but the Magistrate in the Adult Court will also be the Children’s Court Magistrate. As with the Magistrates Court, in areas outside the Perth Metropolitan area, sometimes, 2 Justices of the Peace will preside in the Children’s Court. The Justices of the Peace have the same powers as the Magistrate except they cannot sentence a child to detention or imprisonment.

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The Children’s Court Magistrate has the power to sentence a child to detention for a period no longer than 6 months or give a prison term for a period no longer than 3 months Because of this limitation, the Magistrates will refer more serious offences to the President for sentence. (See Children’s Flow Chart)

APPEAL

If an accused is unhappy with a sentence given by the Magistrate, they can have that decision reviewed by the President. (See Children’s Flow Chart)

An accused can also appeal against a Magistrate’s decision to a Single Judge of the Supreme Court. (See Children’s Flow Chart)

The President

The President of the Children’s Court is a Judge who comes to the Children’s Court from the District Court for a period of 3 years.

The President has unlimited power to sentence including the power to deal with serious charges such as wilful murder.

An accused can appeal against a decision made by the President to the Court of Appeal. (See Children’s Flow Chart)

The Children’s Court

The Children’s Court differs from the Adult Court in that Children are sentenced under the Young Offender’s Act (Adults are sentenced under the Sentencing Act). Different sentencing options are available to Children than Adults.

In the Children’s Court, the child must attend with a Responsible Adult (Parent) and the court must be satisfied that the child understands what is going on.

It is an offence for the media to publish or film anything that happens in the Children’s Court that may lead to the identification of the Child.

It is also an offence to disclose what happens in the Children’s Court in a way that may lead to the identification of the Child.

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LEGAL TERMS

Criminal Jurisdiction the extent of the Magistrate/Judges authority to administer justice.

Hierarchy a system in which courts are ranked one above the other with various status, authority and power.

Indictable Offence a serious offence which may lead to a trial “upon indictment” before a Judge and Jury in either Supreme or District Court. Many Indictable Offences can be dealt with by the Magistrate at the election of the accused. These offences are said to be dealt with by the Magistrate “summarily”.

Judge a Judge is a person who presides over the District, Supreme Court, Court of Appeal and High Court. The District and Supreme Court Judges in Western Australia are appointed by the Governor. To be appointed as a Judge, that person must have practised as a lawyer for not less than 8 years or practised as a barrister of the High Court of Australia with not less than 8 years experience.

Justice of the Peace a person appointed by the Governor. To become a Justice of the Peace (JP) the person does not need to have a law degree but must have other qualities such as be of good character and reputation with a record of community service. JPs are used to preside over Magistrates Courts both within the Perth metropolitan area and in country courts when the Stipendiary Magistrate is not available. The JP’s powers are limited in that they cannot hear a serious charge and convict or acquit an accused of that charge. They can adjourn matters, consider whether or not to grant bail and in some cases impose fines for driving offences.

Offence an illegal act or crime.

Offender the person who has committed or is accused of committing an illegal act or crime.

Preside be in a position of control or authority over.

Simple Offence an offence which considered minor or less serious and can only be dealt with by a Magistrate. This means that the accused cannot have the matter go before a Judge or Jury.

Stipendiary Magistrate A person appointed by the Governor to the Magistrates court of Western Australia. To be appointed a Stipendiary Magistrate, that person must have had at least 5 years’ legal experience and be under 65 years of age.

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COURT HIERARCHY QUIZ (No. 1)

WHICH COURT?

1. Joe has been charged with “Disorderly Conduct” which is a SIMPLE OFFENCE. At the time of the offence, Joe was aged 20. Which court will he appear in?

2. Joe has been charged with “Stealing a Bicycle” worth $400. Although Joe is now aged 20, he stole the bicycle when he was aged 17. Which court will he appear in?

3. Samantha has been charged with “Armed Robbery” which is an INDICTABLE offence that cannot be dealt with as a Simple Offence, it also carries a LIFE SENTENCE as a penalty. The offence occurred when she was aged 31. Which courts will she appear in?

4. Bob has been charged with “Murder” which is an INDICTABLE offence that cannot be dealt with as a simple offence and carries a LIFE SENTENCE as a penalty. The offence occurred when he was aged 40. Which courts will he appear in?

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5. Dianne has been charged with “Assaulting a Police Officer”. She was 18 at the time of the offence. The offence of “Assaulting a Police Officer” is an INDICTABLE OFFENCE but can be dealt with as a SUMMARY offence. Dianne wants the Magistrates Court to deal with her case, can this happen?

6. Steve is 19 and last week was charged with “Grievous Bodily Harm”. This is an INDICTABLE OFFENCE that CANNOT be dealt with as a SUMMARY offence. Which courts will Steve appear?

7. Donny is 16 and has been charged with “Burglary”. Which court will he appear in?

8. Sarah is 10 years old and has been charged with “Criminal Damage by Fire”. Which court will she appear in?

9. Harry has been charged with 100 counts of “Unlawful Damage by Graffiti”. Unlawful Damage is a SIMPLE OFFENCE. He was aged 21 at the time of the offences. Which court will he appear in?

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10. Elizabeth was convicted in the District Court to 10 years imprisonment for Grievous Bodily Harm. She wants to appeal the Judge’s sentence, which court will she appeal to?

11. Jake is unhappy with the Children’s Court Magistrate’s decision that convicted him of Burglary after a trial. Where can he appeal?

12. Sam is unhappy with the long prison sentence he was given for an Assault. He was sentenced by a Magistrate in the Magistrates Court. Where can he appeal?

13. Paul is unhappy with a decision to imprison him by a Supreme Court Judge for an Armed Robbery. Where can he appeal?

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CRIMINAL COURTS IN WESTERN AUSTRALIA QUIZ (NO.2)

Circle the letter of your answer. When complete, discuss the answers with your teacher to see if you are correct.

1. The MAGISTRATES COURT is presided over by:

a) 3 Magistrates and a Judgeb) 1 Magistrate or 1 or 2 Justices of the Peacec) 3 Judges

2. The MAGISTRATES COURT changed its name in May 2005 from:

a) the Court of Petty Sessionsb) the Criminal Small Claims Courtc) the Court of Summary Jurisdiction

3. The MAGISTRATES COURT handles:

a) most of the criminal matters in Western Australiab) serious offences that carry a term of not less than 10 years

imprisonment.c) only simple offences

4. To become a Magistrate, that person:

a) must have a law degree from the University of Western Australia and practised as a lawyer in Western Australia for not less than 8 years.

b) must have practised as a lawyer for 5 or more years or have been a Judge or Magistrate.

c) must have a law degree and have practised as a lawyer in WA or elsewhere for not less than 8 years.

5. A Justice of the Peace:

a) has the same powers as a Magistrate and appears when the Magistrate has a day off.

b) has limited powers in the Magistrate Court and cannot convict or acquit an accused of a charge.

c) has to have a law degree and be of good character and reputation in order to preside in the Magistrates Court.

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6. Serious offences in the Magistrates Court are:

a) dealt with by the Magistrate who has the power to deal with all Indictable Offences.

b) dealt with by the Magistrate only if it can be dealt with as a Simple Offence.

c) initially dealt with by the Magistrate who can refer the matter to 2 Justices of the Peace for sentence.

7. If an accused or prosecutor is unhappy with a decision made by a Magistrate in the Magistrate’s Court, he/she can:

a) go straight to the High Courtb) appeal to the District Court of Criminal Appealc) appeal to a Single Judge of the Supreme Court

8. The DISTRICT COURT handles:

a) all Indictable Offences including murder and wilful murder.b) all offences that can be dealt with by a Judge and Jury. c) handles all serious offences other than those which carry a term of life

imprisonment or strict security life imprisonment.

9. To be appointed a JUDGE in the DISTRICT COURT:

a) that person must have practised as a lawyer for not less than 8 years or practised as a Barrister of the High Court of Australia with not less that 8 years legal experience.

b) that person must have been a Magistrate in the Magistrates Court for not less than 5 years.

c) that person must have practised as a lawyer in Western Australia for not less than 5 years.

10. If an accused or prosecutor is unhappy with the JUDGE’S decision in the DISTRICT COURT, they can appeal:

a) straight to the High Court of Australiab) to a single Judge in the Supreme Courtc) to the Court of Appeal.

11. The SUPREME COURT deals with:

a) criminal matters that are legally more complex, requiring submissions on the finer points of law than other cases.

b) serious criminal offences that carry a term of imprisonment for life or strict security life imprisonment.

c) serious criminal offences only when the Judges of the District Court are overloaded with cases.

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12. To be appointed a SUPREME COURT JUDGE, a person:

a) must have practised as a lawyer for not less than 10 years.b) must have practised as a lawyer for not less than 8 years or barrister

of the High Court of Australia for not less than 10 years.c) must have practised as a lawyer for not less than 8 years or barrister

of the High Court of Australia for not less than 8 years.

13. An accused or prosecutor can appeal against a SUPREME COURT JUDGE’S decision:

a) straight to the High Courtb) to the Court of Criminal Appealc) to the Full Court of the Supreme Court exercising its’ civil jurisdiction.

14. An appeal from a decision by the COURT OF APPEAL:

a) is made to the High Court and is an automatic right by every Australian citizen.

b) is made to the High Court and can be made only if special leave is obtained.

c) is made to the Full Court of the Supreme Court.

15. The CHILDREN’S COURT:

a) has exclusive jurisdiction to deal with all criminal matters against children aged under 18 or who were under 18 at the time the offence was committed.

b) has exclusive jurisdiction to deal with all criminal matters against children aged under 21.

c) has exclusive jurisdiction to deal with all criminal matters against children who were under 21 at the time they committed the offence.

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16. The MAGISTRATE in the CHILDREN’S COURT will refer serious matters:

a) to the DISTRICT COURT to be dealt with by a Judge.b) to the PRESIDENT of the CHILDREN’S COURT to be dealt with.c) to the SUPREME COURT to be dealt with by a Judge.

17. In CHILDREN’S COURTS outside the Perth Metropolitan Area:

a) The same Magistrate who presides over the Magistrate’s Courts will be the Children’s Court Magistrate.

b) All Children’s Court matters will be referred to the Children’s Court in Perth to be dealt with.

c) 2 Justices of the Peace will preside over the Children’s Court and have the same powers as the President of the Children’s Court.

18. The PRESIDENT of the CHILDREN’S COURT is:

a) The Chief Magistrate with no less than 8 years experience as a Children’s Court Magistrate.

b) A Judge who comes to the Children’s Court from the District Court for a term of 3 years.

c) A Commissioner appointed to the District Court with the same powers as a Judge.

19. The CHILDREN’S COURT is different from the Adults Courts in the following ways:

a) the sentencing options are different, a child must attend court with a responsible adult, the court must be satisfied the child understands what is going on and no information can be published or disclosed about the child that may lead to the child being identified.

b) the sentencing options are the same except more lenient, a child must attend court with a friend if responsible adult can’t be found and information can be published or disclosed about the child’s identity if it is in the public interest to do so.

c) the sentencing options are harsher to try to discourage the child from further offending, the child must attend court on their own but a parent may attend if they want to in exceptional circumstances, all information can be published or disclosed about the child so long as the “name” of the offender is not disclosed.

20. An accused or prosecutor can appeal a decision made by the PRESIDENT in the CHILDREN’S COURT to:

a) the High Courtb) the Court of Appealc) the Full Court of the District Court