3. Criminal Trial Process: Court Jurisdiction, Adversary, juries, plea/charge negotiation Flashcards
are ppl sent to drug court if they’ve been convicted of a violence offence?
no.
Only for a non-violent offence where they have pled guilty
Drug Court of NSW
- a non-violent offences for drug addicts where they have pled guilty
- 12 month programs
- Sentenced normally if conditions broken
Local Court
- 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
Coroner’s Court
- Judge-coroner
- Unclear deaths/arson
- Can lead to police investigations
- Dif. rules-more inquisitorial
Children’s
• 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
District Court
• 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
Supreme Court
- ONE Judge and jury
- Serious indictable offences (murder, slavery, conspiracy, treason, arson)
- OA and OJ
- complex drug cases
NSW Crim Court of Appeal
- 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
What does a system of appeals minimise
the effects of wrong decisions made by jduges/magistrates when excersing their discretion
Appellant
person who ldoges the appeal
High Court
- 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
Fed Court
some criminal matters (incl breaches of copyright)
3C’s that doctrine of precedent creates
Consistency
Certainty
Coherency
Binding precedent
lower court MUST follow, but judge can distinguish case from other cases in higher courts so they don’t have to apply
Persuasive precedent
court not bound but can be influenced by previous decisions (ie, obiter dictum part)
(ratio decidendi can be closely considered)
what does mandatory sentencing challenge
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
purpose of committal hearing and proposed changes
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
Features of adversarial system 1.
- strict rules of evidence
- no hearsay
- judge is like a referee- impartial ensuring procedures are followed
reasons for our adherence to Adversary System of trial
- Historical (tested overtime)
- Through strict rules of evidence and procedures (= for both parties)
- Those affected pay
- Judge impartial and independent (fair treatemtn of parties)
- Standard and burden of proof protects innocent
Features of adversarial system 2.
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
Strengths of adversary system
- Individuals resp for conduct of case (fair and just)
- –>desire to win also means all relevant evidence will be presented - Each party given = opp to present case and cross examine evidence of other party
- trials generally open ot public scrutiny
- fairer and more readily acceptable decision due to independt and impartial judge
- Have system of appeals
Weaknesses of adversary system
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
how many jury members in crm trial
12
Director of Public prosecutions
INDICTABLE offences
——summarily or in front of a jury-
usually a barrister from the office of the DPP
public Defenders
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
Police prosecutors
for local court
Irritable Angry Men Scare Nice Delightful Children
Insanity Automatism Mistake Self Defence Necessity Duress Consent
plea and charge negotiation
where prosecution and defence meet before trial and dfence agrees that accused will plead guilty if prosecution reduces the charge. —> use of discretion
what do charge negotiations decide?
whether a definite conviction, nature of charge and likely severity of the sentence
benefits of charge negotiation
+ 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
disadvantages of charge negotiation
- 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,
‘Judge blasts plea deal in kill threat case’ (The Australian, 2011)
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.”
• R v Koch (
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
2012 changes to Crimes (Sentencing Procedures) Act 1999
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).
What are reformed changes designed to do (dot point: pleas, charge negotiation)
encourage appropriate early guilty pleas to reduce resource inefficiency and load on courts
partial defences to murder
provocation
battered women’s syndrome
abuse excuse
