Bar Exam-type questions Flashcards
What is an ‘indictment’?
An indictment is a document filed in the Supreme or County Court setting out the name of the accused, the
charge/s and particulars of the offence/s. An indictment must comply with Schedule 1 CPA (though not invalid for not doing so: s 166) and include the names of witnesses and sufficient particulars to identify the charge. It must be in writing and signed by the DPP or a Crown Prosecutor in the name of the DPP (s 159).
What is a ‘no case submission’?
A no case submission is made by defence counsel where they are of the view, following the close of the
prosecution case and before the accused calls/gives evidence and closing addresses that the prosecution has failed to prove the case. The test is that the jury, properly instructed, could not convict the accused. It is a high test. If judge accedes, must direct jury to enter verdict of not guilty.
Who is responsible for giving jury directions in a criminal trial?
Counsel in trials have obligations under the JDA to identify issues in dispute and request directions relevant to those issues. The onus is on counsel to request directions and the judge must give requested directions unless there is a good reason not to. The judge must not give directions not requested however there remains a residual obligation on the judge to give a direction not requested if failing to do so would result in a substantial miscarriage of justice. This is a big test, and higher than to ensure a fair trial.
Draft a charge sheet for the offence of blackmail.
For the prosecution to prove a charge of blackmail, it must establish:
- that the accused made a demand;
- that the demand was unwarranted;
- that the demand was made with menaces;
- that the demand was made with –
a. a view to gain for the accused or another; or
b. with intent to cause loss to another.
Note: The word “menaces” is not defined in the Crimes Act 1958 but may be taken to include threats
to publish allegations of misconduct (not necessarily criminal misconduct) which could, objectively,
intimidate or influence the victim into acceding to the accused’s demand.
The accused did on 16 June 2015 and 17 June 2015 at Melbourne commit blackmail, with a view to gain for
herself with intent to cause loss to another, by making unwarranted demands with menaces against Mr Jacob Herne.
What this includes: accused, victim, dates, place, identify elements of offence using statutory language.
In this case, the police decided to release the Accused on bail after she was charged. If the police had decided not to release her, what steps would the Accused need to take to secure her release pending the determination of the charge? You should identify and explain in your answer: (i) the relevant decision-maker who may order her release; (ii) the applicable legal principles that would govern the decision making process; and (iii) the kinds of factual matters that would most likely be taken into account by the decision-maker.
Because the police have refused to bail A, A would have to apply to a court for bail. Here A can apply to a Magistrate for bail as she is not charged with treason or murder, or being committed for murder (s.13 Bail Act). Here the accused does not have to show exceptional circumstances (because not murder or treason) or show cause (because not already on bail or other factors etc.). Court has to consider factors in Here decision maker would likely take into account the nature and seriousness of charge (serious because indictable 15 yr max penalty) the character and
antecedents of accused (no evidence of priors here) strength of the evidence (circumstantial case) A would likely be granted bail.
What is a ‘committal hearing’ and in which Court does it take place? Explain the essential determination the Court must make in a committal hearing and the likely outcome for the Accused in this case.
A committal hearing is an administrative hearing held before a magistrate. The primary purpose of the hearing is to determine whether there is sufficient evidence of sufficient weight to order that the accused stand trial before a judge and jury. It is held in the Magistrates’ Court and can be oral or on the papers (eg hand-up committal). Here the prosecution’s case consists mainly of circumstantial evidence and some of it is tenuous to link the accused. However other evidence such as the computer used to create the Hotmail address is stronger evidence. Here although not a strong prosecution case, there is sufficient evidence for a prima facie case and matters of weight of evidence that should be determined by a jury. The A would likely be committed to stand trial.
What are the main practical benefits for the criminal defendant who successfully applies to have an indictable offence heard and determined in accordance with Part 3.1 of the Act?
The main benefits of having an indictable offence determined summarily is that it is heard in MC, with
no jury, and has capped jurisdiction. The MC can only sentence to term of imprisonment of two years and 5 years for multiple offences. If goes to trial in CC, Porter faces a max term of imprisonment of 15 years. Other benefits include faster (no committal proceeding) and therefore cheaper.
Assume that the trial judge rules that Mr Herne’s evidence in its entirety is inadmissible,
and Exhibits 1, 2 and 3 are also inadmissible, because he accepts Defence Counsel’s submission that they are
all ‘riddled with hearsay’. Explain how the Prosecution might seek to challenge the trial judge’s ruling in
relation to this evidence and whether such a challenge is likely to be successful.
P would seek to challenge the TJs ruling pursuant to s295 of CPA. The TJ must certify that if the interlocutory decision concerns the admissibility of evidence, the evidence of ruled inadmissible would substantially weaken or eliminate the P case. If the TJ refuses to make this certification, the P may apply to the C of A to review this decision and the C of A may consider the same factors as the TJ was obliged to consider. The C of A will grant leave to appeal only if satisfied that it is in the interests of justice to do so, considering any disruption or delay to the trial, whether the determination may render trial unnecessary, substantially reduce the time required, resolve an issue of law, evidence of procedure or reduce likelihood of successful appeal against conviction and any other issue the court considers relevant. In that case the challenge is likely to be successful as the evidence has significant probative value and inadmissibility would remove the backbone of the prosecution case
What is the difference between a “charge” and an “indictment”? Which of these legal documents is/are likely to be used in this proceeding? Explain.
A charge sheet is a statement in writing that an accused has committed an offence and it commences a proceeding (either upon signing by an informant or filing at the Magistrates’ Court), when it meets certain other criteria. It is used in the Magistrate’s Court. To be valid the statement of charge must comply with the requirements of Schedule 1 of the CPA. An indictment is the document which states the charges which a person faces in the CCV or SCV, it is signed by the
DPP or a Crown Prosecutor. The charge must still comply with Schedule 1. Unless it is a direct indictment it does not commence a proceeding but merely continues one where a charge was previously laid. In this proceeding charges would be laid initially by the informant in the MC and once committed for trial the accused would face an indictment in the SCV and it would be from this document that he would be formally arraigned in the Supreme Court.
What is the difference between a “summary hearing” and a “committal hearing”? Which of these types of hearing is/are likely to take place in this proceeding? Explain.
A summary hearing is for summary offences – minor offences tried without a jury, generally punishable by only up to two years imprisonment, or less serious examples of some indictable offences where they are not overly complex or serious and the accused consents (s 29). It is where the hearing is heard and determined entirely by a Magistrate sitting alone. A summary proceeding is usually made up of (unless an A pleads guilty) a summary case conference, contest mention, and contested hearing. A committal hearing, on the other hand, is for more serious examples of indictable offences on track to be heard by a judge and jury. It is an administrative hearing to determine whether there is evidence of sufficient weight to sustain a conviction, if there is, the A is ‘committed’ to stand trial. The process allows A to test the evidence, prepare the defence, determine whether summary jurisdiction may be appropriate, confine the factual basis for a plea and a range of other things. In this case, a committal proceeding will be held as manslaughter is an indictable offence that can only be heard by a jury - that is because the offence is punishable by more than 10 years in prison and is not listed in Sch 2.
Does Defence Counsel have to disclose the Accused’s case to the Prosecution and give prior notice as to what evidence the Accused objects to? Explain.
Effectively no. The A is presumed innocent and the burden lies on the prosecution to prove its case BRD. The only requirements the A has to disclose its case are 1/ to disclose what is in issue in the defence response 14 days before trial or as otherwise ordered (s.183); 2/ disclose alibi evidence 14 days after committal (s 190); 3/ disclose expert evidence 14 days before trial (s 189). However for the proper and efficient running of trials and the courts, it is very common to disclose objections to evidence in advance of trial in accordance with ss.199 and 200 of the CPA and to even seek an advanced ruling on evidence under s.192A of the EA. It would only be in very rare cases that C would make a strategic decision to withhold an objection to admissibility of evidence until the trial had begun.
