HSC CORE - CRIMESECTION 3 - CRIMINAL TRIAL PROCESS

Mr Shipp Term 2, 2014

MAIN SYLLABUS POINTS

Hint: The largest section for evaluating the effectiveness theme

COURT JURISDICTION

• Courts will be used depending if it is a bail hearing, committal hearing or trial

• Some courts will have power to hear certain trial cases. Local, District, Supreme

• The authority for a court to hear a matter for the first time is known as the court’s original jurisdiction

• The authority to review matters on appeal from another court is known as the court’s appellate jurisdiction.

Hint: Remember the crimes and which court they will be heard in

• Hears summary offences

• Conducts committal hearings to establish Prima Facie

• No jury present

• Bail Hearings will often be heard

• The local court can be efficient, it may be cheaper and quicker to establish the correct evidence for a trial

1. The Local (Magistrates) Court

• Deals with suspicious crimes when death occurred:

• in a violent way

• after an accident

• in police custody

• receiving medical care

• The coroner doesn’t try people rather present sufficient evidence that a criminal act has occurred

2. The Coroners Court

• Deals with crimes committed by Under 18year olds, except homicide, aggravated sexual assault and some traffic offences

• Closed Court and focuses on rehabilitation

3. The Children’s Court

JUSTIN BIEBER EGG THROWING CRIME

CHILDREN’S COURT

• Diversionary court setup in 1999

• Aims to manage repeat offenders with drug addiction

• Local and District jurisdiction

4. Drug Court of NSW

• Trial court, usually jury of 12 people

• Majority of indictable offences

• Court Proceedings will take longer than the local court and cost more money to the accused

5. The District Court

GRAFFITI VANDALS - DISTRICT COURT

• Most serious crimes murder, major conspiracy and drug offences, Commonwealth breaches of corporate law, kidnapping and serious sexual assault

• Hears appeals from lower courts known as ‘stated cases’

6. Supreme Court of NSW

KELLI LANE TRIAL EVIDENCE

• That people cannot be retried for the same crime once they have been acquitted, for serious crimes

• Crimes (Appeal and Review) Act 2006 (NSW)

Double Jeopardy rule

DOUBLE JEOPARDY RULEVICTORIA

• Appeals from the District or Supreme Courts, some local court cases on questions of law

• Appeals may include a question of law, a question of fact(evidence), or a challenge to the severity or adequacy of a sentence

7. Criminal Court of Appeal

Hint: The right to appeal is a paramount right for the accused, however it may only be used by those who can afford it

GORDON WOOD APPEAL

• Most criminal cases will be held in state courts. This is the highest appeals court though

• Interprets the Constitution which may involve criminal law

8. The High Court

• This federal court will hear some criminal matters which come under the Trade Practices Act (Cth) 1974

• Copyright breaches

• breaching safety standards

9. The Federal Court

THE ADVERSARY SYSTEM

• Criminal justice system is based on an adversarial system of law

• Opponents argue that in many cases the competing sides are not equal before the law, with potential imbalances in resources, skills or knowledge. The Jury may also misunderstand the case

Hint: As criminal law uses the adversarial system, many themes in crime can use this section e.g. Juries

ACHIEVING JUSTICE IN THE ADVERSARIAL SYSTEM

Positives Negatives

Both sides are given the opportunity to be heard

In many cases both sides are not equal before the law

An impartial judge is used as well as a jury

The full truth may not be discovered due to high standard of proof and rules of

evidence

Strict rules of evidence, involving hearsay, relevance and opinion

the resources and skills of barristers may be different

past records of the accused can only be used in sentencing

not using past records may withhold critical evidence

LEGAL PERSONNEL

• Judges and Magistrates - learn the difference between the two (Yr11 Notes)

• Prosecutors - Police Prosecutor (local) and Director of Public Prosecutions (DPP)

• Barristers, Public Defenders and Solicitors - a Public Defender is public barristers who can appear for an accused in serious criminal matters where legal aid has been granted

PLEAS AND CHARGE NEGOTIATION

• The law requires the accused to enter into a plea of guilty(80%) or not guilty

• Pleas will affect the sentencing process especially if the accused admits guilt at this stage

Pleas

• This is where the accused will admit guilt to a lesser charge in order for higher charges to be withdrawn

• This will result in faster and less costly cases for the prosecution (discretion)

• Handled under the Prosecution Guidelines of the Office of the Director of Public Prosecutions. Limited transparency

Excellent News Article

Case: Karl Koch sexual assault case Nanette

May

Charge Negotiation

click here for radio program on Charge Negotiations

For Plea Bargaining Against Plea Bargaining

decreases time delays and costs crimes may go unpunished

Increases the rate of criminal convictions

accused may plead guilt to a lesser charge they are

innocent towards

conviction on a lesser charge is better than no

charge at all

May lead to bullying of the accused and not give the

right to fair trial

Hint: Great for effectiveness and balance of rights themes

BALANCE OF RIGHTS

Community efficient, quick and

inexpensive however justice is hidden

Victim saves them from giving

evidence however victim is not involved in CN and

offender is not punished sufficiently

Accused plead guilty to a lesser charge

due to costs of trial or has been pressured

ACHIEVING JUSTICE

LEGAL REPRESENTATION AND LEGAL AID

• Dietrich v The Queen 1992 in the high court established the right to a fair trial in consideration to the accused not being able to afford legal representation

• Everyone doesn't have the finances to seek proper legal representation. Can result to injustices in the courtroom

• In 1979, the Legal Aid Commission was established by the state government

• It was created:

• to give access to proper law representation for marginalised and disadvantaged groups

• to have equitable access before the law for all groups of society

• The defendant must be means tested to decide whether their income or assets can pay for legal representation (most important)

• Merit Test will not be used in criminal matters unless in appeals where there is a good chance of winning

• Jurisdiction Test will be used to see what area of law is being used. Not all areas of law will be covered and most pass this test

• Legal Aid is often limited in funding where many people who require assistance may not receive it

Hint: Legal Aid is a great way for the accused to gain access to the law, however depending on the funding of government,

resource efficiency could be affected

BURDEN AND STANDARD OF PROOF

• Burden of Proof - in criminal matters, the responsibility of the prosecution to prove the case against the accused

• Standard of Proof - the level of proof required for a party to succeed in court. Prosecution must prove the case beyond reasonable doubt

• Prosecution will often bring a case to trial if they believe there is enough evidence to prove the guilt of the accused to the jury (discretion)

• Crimes (Criminal Organisations Control) Act in 2009 first introduced - restrict bikie association, increased powers for judges. Due to the Anthony Zervas Murder

• Wainohu v New South Wales 2011 - high court rules legislation invalid

• The Crimes Amendment (consorting and organised crime) Act 2012 - clearing up high court decision

Case Space: Anti Bikie gang laws

Hint: This is a great case study that can be used in many ways for a 15 mark HSC question

WAINOHU V NEW SOUTH WALES 2011

HIGH COURT DECISION

NEW ANTI-BIKIE LAWS -THE CRIMES AMENDMENT (CONSORTING AND ORGANISED CRIME) ACT 2012

MARCH 2012

USE OF EVIDENCE, INCLUDING WITNESSES

• For evidence to be admissible it needs to be relevant and obtained legally by the crown

• The different forms of evidence are witness testimony, real evidence (tape recordings, charts, photographs etc) and documentary evidence (documents from the crime scene)

• Anyone who witnessed a crime or was interviewed by police may be subpoenaed to appear later in court

• The witness will be cross examined by both sides of the adversary system

• An expert witness may be called who is qualified in a specific area (DNA testing, mental health doctor)

DEFENCES TO CRIMINAL CHARGES

• Most defences revolve around the mens rea of the offence

• Defences help achieve justice because it considers the accused actions surrounding the crime

• A defence can simply be innocent of the alleged charges

• If successfully proven, the accused will be acquitted of all charges in the trial

complete defences

• a defence that is only available where the accused can prove that they were in fact mentally incapacitated when they committed the offence

• This relates to proving a lack of mens rea

• The defence of insanity is very difficult to prove

• The McNagthen Test 1843 is used to prove whether the accused can use insanity

1. Mental illness/insanity

• Relating to the mens rea of the accused – that the accused’s action was not voluntary or could not be controlled

• Mens rea cannot be established under this defence

2. Involuntary behaviour/Automatism

• The accused can show they carried out a crime in the act of defending themselves or property

• Jury is compelled to either acquit the defendant or find them guilty of the crime

3. self defence/necessity

In R v Zecevic (1987) it was held that the defendant must have reasonable grounds to believe their life was threatened and they

must use ‘proportional and reasonable force’ to defend themselves. Zecevic’s Case stemmed from a dispute over a parking space

• Defendant may be acquitted if they can show they acted against their will under unlawful pressure e.g held at gunpoint to commit murder

4. Duress

In R v Williamson [1972] NSW the defendant disposed of a body while under a death threat and this threat

was held to constitute duress.

• Complete defence for some crimes if the accused can show the victim freely consented to the act in question e.g sexual assault

• This cannot be used for crimes such as murder

5. Consent

• Mitigating circumstances that caused them to carry out the act. This may reduce the sentence or even acquit the accused

• A good example is a murder charge downgraded to manslaughter

Partial Defences to Murder

• Whereby the defendant claims that their actions were a direct result of another person’s actions, and caused them to lose control of their actions

• Abolished in other states but not NSW

1. Provocation

In R v Camplin [1978] , a 15-year-old boy successfully argued provocation after he hit his uncle with a frying pan and killed him. The uncle had just sexually assaulted the boy and was mocking him about the incident. The court held that an ‘ordinary person’ in the position of

the accused would have formed the intent to kill or inflict grievous bodily harm on the person who had assaulted them.

• The Crimes Amendment (Provocation) Act 2014 (NSW)

• Extreme provocation only allowed as a defence for murder. Not used when an individual wants to end the relationship but can be used for prolonged domestic violence

• R v Singh 2012 - case that led to reform

Case Space: Provocation Reforms

Hint: This reform was made to bring provocation in line with community standards and to improve the right of women

PROVOCATION REFORMS

• When the accused is suffering from a mental impairment that caused them to commit the crime

• abnormalities include a low IQ or mental retardation

• Being drunk or under the influence of mind-altering drugs cannot be used

2. Substantial Impairment/Diminished Responsibility

R v. Byrne (1960), the accused was a sexual psychopath with violent sexual desires that he could not control. Most of the time he was considered to be normal, but the occasional episodes had led to

homicide in the past. In this case, the court ruled that the charge of murder should be reduced to that of manslaughter.

Hint: The prosecution will normally take cases to court knowing they will get a guilty verdict (Discretion)

ROLE OF JURIES: INCLUDING VERDICTS

• Used in District or Supreme Court in the Adversary System

• Jury of 12 people whose job is to ‘fact find’

• Both the prosecution and the defence have the right to challenge jurors

• Peremptory Challenge - when the legal team strikes a juror without needing a specific reason. (only knows their name)

• Challenge for Cause - when the legal team strikes a juror because it is believed that for some reason the juror will be prejudicial

challenging jurors

• Jurors are sworn in

• They are allowed to make notes

• The Jury must remain fair and open minded

• They must not discuss the case outside of the court

• If enough time has been taken to make the decision a majority verdict may be allowed

Jury Role

• Jury will decide Guilty or Not Guilty

• If they cannot reach a verdict this is called a ‘Hung Jury’. This can lead to a retrial

• Retrials can be a major strain on both the prosecution and accused

Verdict

• Jury Act 1977 (NSW)- main operation of the system

• Jury Amendment (Verdicts) NSW Act 2006 - 15 jurors can be selected but 12 will decide. Also majority verdict introduced

• Jury Amendment Act 2010 - to improve the eligibility and selection of jurors

Jury Legislation

Hint: This issue is a must for law reform

For Majority Verdict Against Majority Verdict

removing unreasonable jurors in the process disagreements are rare

avoid time delays and costdiscounting the possibility of finding a reasonable doubt

decision

saving the victim from a retrialmay persuade the jury from the beginning that they only

need to get an 11 count

Unanimous Verdict vs Majority Verdict

Hint: Another classic balance of rights section

Hint: Crime Reform is a constant theme throughout all sections.

Reading Time

MULTIPLE CHOICE: CRIME

1. The Coroner’s Court is which of the following?

a - a court that deals with the cause and manner of a person’s death

b - a court where most criminal cases are heard

c - a court where the general public are prohibited from viewing proceedings

d - the highest court in Australia

a - a court that deals with the cause and manner of a person’s death

answer:

2. Which of the following best describes the defence of duress?

a - the accused claims that the victim consented to the crime carried out against them

b - the accused tries to prove that they committed a crime against their own free will

c - the crime was done in the act of self-defence

d - the victim’s actions caused the accused to lose control

b - the accused tries to prove that they

committed a crime against their own free

will

answer:

3. A public prosecutor is a:

a - judge

b - magistrate

c - lawyer

d - police officer

c - Lawyer

answer:

4. When a defendant pleads guilty to a lesser charge in exchange for another

charge being withdrawn it is referred to as:

a - plea bargaining b - bail bargaining

c - double jeopardy d - committal hearing

answer:

a - plea bargaining

5. The standard of proof in a criminal case is best described as:

a - beyond reasonable doubt b - balance of all probabilities c - diminished responsibility

d - innocent until proven guilty

a - beyond reasonable doubt

answer:

I HAVE DOUBT

6. Ray is charged with importing a large amount of cocaine, to which he pleads guilty.

Which court will sentence Ray?

A -The Local Court

B - The Supreme Court

C - The High Court

D - The District Court

B -The Supreme Court

answer:

7. Which of the following best describes the purpose of a committal hearing?

A - To assess whether there is a prima facie case

B -To sentence a person found guilty of a crime

C - To determine the accused person’s guilt

D - To decide whether the Crimes Act 1900 defi nes the offence as a crime

A - To assess whether there is a prima facie

case

answer:

8. Jack hit a man who pushed and shouted at his elderly mother. What defence should Jack use in this case?

A - Self-defence B - Provocation C - Necessity

D - Compulsion

B - Provocation

answer:

9. Who decides a question of law in a criminal case in the NSW Supreme Court?

(A) The jury (B) The judge

(C) The defence (D) The prosecutor

B - The Judge

answer:

10. What is the first step in a criminal trial process for murder?

(A) A jury is empanelled.

(B) An arrest warrant is issued. (C) A committal hearing is held.

(D) The offender is charged by police.

C) A committal Hearing is held

answer:

11) In a criminal case, with whom does the burden of proof rest?

A The defence B The judge

C The prosecution D The jury

C) The prosecution

answer:

12. In most summary matters, who presents the prosecution case?

A Crown prosecutors B The Director of Public Prosecutions

C Police prosecutors D Summary Offences Prosecutions Office

C) Police Prosecutors

answer:

13. What type of hearing is used to determine if a case involving a serious

indictable offence will proceed to trial?

(A) Onus of proof (B) A coronial inquiry

(C) A committal hearing (D) A summary proceeding

(C) A committal hearing

answer:

14. Which of the following is NOT a complete 19. defence to murder?

(A) Duress (B) Necessity

(C) Defence of another (D) Provocation

(D) Provocation

answer:

15. Which statement is true of our criminal justice system in NSW?

a) The burden of proof is on the plaintiff and the standard of proof is on the balance of probabilities

b) The burden of proof is on the prosecution and the standard of proof is on the balance of probabilities

c) The burden of proof is on the prosecution and the standard of proof is beyond a reasonable doubt

d) None of the above

c) The burden of proof is on the prosecution and the standard of

proof is beyond a reasonable doubt

answer:

16. Which statement is true about the court hierarchy?

a) The Federal court hears numerous criminal matters b) The High Court hears numerous criminal appeals

c) A District Court judge may hear a committal hearing for a Local Court trial

d) The Children’s Court is part of the Local Court level

d) The Children’s Court is part of the Local Court level

answer:

17. Which statement is false about the court hierarchy?

a) The NSW Supreme Court hears matters concerning indictable offences

b) The Local Court has original jurisdiction for summary criminal matters and appellate criminal jurisdiction

c) The District Court has original jurisdiction for indictable criminal matters and appellate criminal jurisdiction

d) The High Court may hear appeals from Court of Criminal Appeals if leave is granted

b) The Local Court has original jurisdiction for summary criminal

matters and appellate criminal jurisdiction

answer:

18. When an accused agrees to plead guilty to lesser charges in order to avoid charge on a more serious matter, this is known as:

a) plea bargaining, case conferencing and charge negotiation b) plea bargaining, case conferencing and judicial discretion

c) case conferencing, charge negotiation and legal aid d) judicial discretion, case conferencing, charge negotiation

a) plea bargaining, case conferencing and charge negotiation

answer: