3. Criminal Trial Process: Court Jurisdiction, Adversary, juries, plea/charge negotiation

Question 1

are ppl sent to drug court if they’ve been convicted of a violence offence?

Answer 1

no.

Only for a non-violent offence where they have pled guilty

Question 2

Drug Court of NSW

Answer 2

• a non-violent offences for drug addicts where they have pled guilty
• 12 month programs
• Sentenced normally if conditions broken

Question 3

Local Court

Answer 3

• Summary offences
• Committal hearings (prima facie) – however proposed changes to take pressure off local court (hears 95% of cases) where Director of public Prosecutionswill take over this role,
• Original jurisdiction
• Civil matters up to $100 000

Question 4

Coroner’s Court

Answer 4

• Judge-coroner
• Unclear deaths/arson
• Can lead to police investigations
• Dif. rules-more inquisitorial

Question 5

Children’s

Answer 5

• Closed court-media can attend but can’t publish name
• Magistrate
• Summary
• <18 or if charged when <18 and are still <21
OJ
Not for traffic offences or serious indictable offences eg. murder.
Committal hearings for serious indictable offences heard here but trial and sentencing at relevant higher court

Question 6

District Court

Answer 6

• Jury and judge
• AJ and OJ
• indictable offences (manslaughter, sexual assault, selling drugs/serious driving)
children’s indictable offences
• Hears appeals from Local court about severity of sentence/retrial

Question 7

Supreme Court

Answer 7

• ONE Judge and jury
• Serious indictable offences (murder, slavery, conspiracy, treason, arson)
• OA and OJ
• complex drug cases

Question 8

NSW Crim Court of Appeal

Answer 8

• Supreme court w. 3-5 judges
• AJ
• Appeals from local court but ONLY FOR Q’s ABOUT THE LAW (not severity of senence)
• Appeals from District
• Appeals from 1 judge decisions in Supreme

Question 9

What does a system of appeals minimise

Answer 9

the effects of wrong decisions made by jduges/magistrates when excersing their discretion

Question 10

Appellant

Answer 10

person who ldoges the appeal

Question 11

High Court

Answer 11

• cases btw states (OJ
• Appeals from Fed and Fam Court and State courts
• Appeals from 1/3 judges in HC
• Appeals from NSW CRim court of appeal on Q’s of law

Question 12

Fed Court

Answer 12

some criminal matters (incl breaches of copyright)

Question 13

3C’s that doctrine of precedent creates

Answer 13

Consistency
Certainty
Coherency

Question 14

Binding precedent

Answer 14

lower court MUST follow, but judge can distinguish case from other cases in higher courts so they don’t have to apply

Question 15

Persuasive precedent

Answer 15

court not bound but can be influenced by previous decisions (ie, obiter dictum part)
(ratio decidendi can be closely considered)

Question 16

what does mandatory sentencing challenge

Answer 16

the doctrine of the constitutional separation of powers, taking away independence of juidiciary and makes legislature more powerful
—>Crimes and Other Legislation (Assault and Intoxication) Act 2014 NSW

Question 17

purpose of committal hearing and proposed changes

Answer 17

clarify issues before attending trial
est prima facie (enough weight of evidence to support a conviction)
—–> proposed changes to take pressure off local court (hears 95% of cases) where Director of public Prosecutions will take over this role, but this could compromise essential procdure of analysing evidence to be presented in a case

Question 18

Features of adversarial system 1.

Answer 18

• strict rules of evidence
• no hearsay
• judge is like a referee- impartial ensuring procedures are followed

Question 19

reasons for our adherence to Adversary System of trial

Answer 19

1. Historical (tested overtime)
2. Through strict rules of evidence and procedures (= for both parties)
3. Those affected pay
4. Judge impartial and independent (fair treatemtn of parties)
5. Standard and burden of proof protects innocent

Question 20

Features of adversarial system 2.

Answer 20

Presumption of innocence
• witnesses ORALLY EXAMINED, only can answer q’s when asked
• past record only examined at sentencing
• adversary parties (you need a legal representative to have a chance of having competent advocacy ) have control over how proceedings are conducted

Question 21

Strengths of adversary system

Answer 21

1. Individuals resp for conduct of case (fair and just)
   - –>desire to win also means all relevant evidence will be presented
2. Each party given = opp to present case and cross examine evidence of other party
3. trials generally open ot public scrutiny
4. fairer and more readily acceptable decision due to independt and impartial judge
5. Have system of appeals

Question 22

Weaknesses of adversary system

Answer 22

slow to settle disputes

• could be unable to discover truth due to strict rules of evidence and burden of proof
• v. costly to those involved
• discriminates against those w. limited $ resources/lack language skills/cultural differences
• each side only presents facts to support their case, so important evidence may be missed

Question 23

how many jury members in crm trial

Answer 23

12

Question 24

Director of Public prosecutions

Answer 24

INDICTABLE offences
——summarily or in front of a jury-
usually a barrister from the office of the DPP

Question 25

public Defenders

Answer 25

lawyers to represent accsued ppls in district and supreme court, for those accused of serious offences but only for people who are granted legal aid

Question 26

Police prosecutors

Answer 26

for local court

Question 27

``` Irritable Angry Men Scare Nice Delightful Children ```

Answer 27

``` Insanity Automatism Mistake Self Defence Necessity Duress Consent ```

Question 28

plea and charge negotiation

Answer 28

where prosecution and defence meet before trial and dfence agrees that accused will plead guilty if prosecution reduces the charge. ---> use of discretion

Question 29

what do charge negotiations decide?

Answer 29

whether a definite conviction, nature of charge and likely severity of the sentence

Question 30

benefits of charge negotiation

Answer 30

+ can save victim from having to undergo the often distressing task of giving evidence and being cross examined + means that some justice is at least provided for victim and society + more efficient, less $ as no court hearing, only sentencing

Question 31

disadvantages of charge negotiation

Answer 31

- places pressure on accused to plead guilty even though they may have not been found guilty in court, reducing capacity of the CJS to provide justice - accused gets lighter sentence than they deserve (R v Koch 2009), less justice for victim as they may believe offender wasn't punished sufficiently - accused may plead guilty to a lesser charge because they can't afford cost of defending the more serious charge - a lighter sentence may not deter the offender from offending again - lack of transparency- can't tell if justice was actually delivered or if accused deserved a lesser/greater sentence,

Question 32

‘Judge blasts plea deal in kill threat case’ (The Australian, 2011)

Answer 32

Justice Hulme stated the DPP’s charge negotiation w. Koch was “a disgrace because of the seriousness of the charges & of the evidence that the crown has put before me in this application.”

Question 33

• R v Koch (

Answer 33

2009) Attempted murder was downgraded to grievous bodily harm as a result of charge negotiation, despite substantial evidence that he planned to stalk and murder Nanette May

Question 34

2012 changes to Crimes (Sentencing Procedures) Act 1999

Answer 34

requires consultation w. victim & investigating police (public interest must be satisfied, must be weak evidence available, alt charge still reflects essential criminality of the conduct, & enough scope for sentencing, will save victim/witness from stress of testifying in trial).

Question 35

What are reformed changes designed to do (dot point: pleas, charge negotiation)

Answer 35

encourage appropriate early guilty pleas to reduce resource inefficiency and load on courts

Question 36

partial defences to murder

Answer 36

provocation battered women's syndrome abuse excuse