Courts I Flashcards
Criminal Investigation Act
- Detain an arrested suspect for an initial period of six hours
- Should that time be exceeded investigators must seek authority from a Senior Officer to detain the person longer (valid reasons must accompany this extension, where the suspect can be held for a further six hours)
- Should that time be exceeded, investigators must seek further approval from a Magistrate who can approve a further eight hours of detention
An arrested suspect (s.138) is a person who is under arrest under s.128 or on suspicion of committing an offence, and must be given the following rights:
- Informed of the offence for which they have been arrested
- Be cautioned prior to the interview
- Be provided with an opportunity to communicate with a legal practitioner
- If the person cannot speak English ‘sufficiently’ they must be provided with an interpreter
Valid reasons to hold someone include (s.139):
- Searching places and vehicles connected to the suspect
- Searching the person for security purposes (anything that could endanger them or others)
- Investigating any offence the person is suspected of committing
- Interviewing the suspect in relation to any offence they are suspected of committing
- Deciding whether or not to charge the person with an offence
Due process
- due process of law provides a formal means to ‘guarantee’ the impartiality and neutrality of trials
- The Australian Constitution contains no express guarantee of due process.
Key elements to due process of law are:
Notice must be given, Publicity, Standards of proof.
Notice must be given
Must be informed of charges and given adequate time to prepare their defence
Publicity
- Trials are normally conducted in open court because they are considered ‘public matters’.
- Avoids concerns regarding ‘justice’ behind closed doors.
- Exceptions include trials affected by public disruption as well as trials involving afraid and/or embarrassed witnesses (e.g., victims of sexual assault, child abuse)
Standards of proof.
The onus of proof lies with the prosecution who need to prove beyond reasonable doubt
Evidence and rules guiding evidence.
- Extensive rules are in place regarding what is, and what is not allowable as legal evidence.
- e.g., Confessions to the police must be voluntary and persons must be warned beforehand of their rights.
- Each party is given the opportunity to tender evidence before the judge (and jury), and to cross-examine the other side so as to raise objections and/or clarify matters.
Impartiality
- People are not allowed to be judges for their own cause.
- g., A judge cannot preside over a trial involving a friend or family member.
- Lawyers are able to challenge the inclusion of potential jury members in order to shape the composition of the jury. Ideally, this process results in an acceptable level of impartiality.
Avenues for appeal.
- Disputes over convictions and/or
sentences may be reviewed by the higher courts. - Provides the accused with a
further chance to either clear themselves of the charges or to argue for a more lenient sentence on the basis of
mitigating circumstances.
Evidence that is presented might be :
- The oral testimony of witnesses.
- Documentary evidence.
- Physical evidence.
levels of courts
- The lowest level of court is the Magistrates Court.
- The next level of court in Australia is the District Court.
- The Supreme Court is the next level of Court in Australia.
- Above the Supreme court is the High Court which hears federal matters in regards to criminal issues.
Trial by jury
- In a criminal trial, the jury determines issues of fact.
- The judge determines matters of law.
- The use of juries to determine issues of fact has captured the attention of the public, authorities, and most of all researchers.
- No other area has sparked such intense debate with both public and professional cries of injustice.
Role of the jury
- To weigh the evidence presented in court and apply the law as directed by the judge to the ‘facts’ of the case
- To deliver a verdict as to whether the accused is guilty or not guilty of the crime
- Jurors are not required to justify the verdict
Underlying assumptions of jury ability
- Provide undivided attention for the duration of the trial
- Discard information not formally admitted into evidence
- Carefully evaluate a mass of information
- Arrive at an unbiased verdict
Selection and composition of jury
- Jury trials represent less than 1% of all criminal proceedings because many offences are finalised by a guilty plea prior to trial.
- Also- the majority of offences are heard within the Magistrate Court
- The overwhelming majority of jury trials relate to criminal offences
- Section 18 of the Juries Act (1957) – indicates a jury hearing a criminal trial must consist of 12 persons (with 6 reserve jurors).
- A jury pool is randomly selected from the electoral role.
- The jury pool attends court where their names are placed in a ballot box.
- 18 names are randomly selected.
Juries Legislation Amendment Act 2011
- was passed to diversify the range of eligible jurors.
- Therefore, it limited the range of exclusions by right.
- Categories of people who were previously ineligible or excused now need to demonstrate that jury service will lead to “undue hardship, serious inconvenience to the person, the person’s family or the general public”.
Section 103 Criminal Procedure Act
the prescribed officer must inform the accused can challenge any jurors, but cant object to the whole panel of jurors.
Section 104 Criminal Procedure Act
the prosecutor can challenge peremptorily (for no reason), 3 jurors if there is one accused, or if more than one accused, there times the number of accused.
Judges
- Can often see the long-term implications of the judgement of a case
- More difficult to confuse or distract a judge
- Costs much less
- Judges do not misunderstand the legal terminology
Juries
- Group deliberation process protects against inaccurate recollections
- Inclusion of community standards and morals
- Judges are more likely to be influenced by political implications
- Judges may not be more capable of rendering rational decisions
- Judges may also be overwhelmed by complex cases
Decision rules
Juries in Western Australia require a unanimous verdict or a majority of 10 to 2.
Western Australia (Section 114 Criminal Procedure Act 2004).
- Majority verdicts (10 or more jurors) are permitted, except in relation to a charge of willful murder or murder, after the jury has deliberated for at least three hours.
- There is variation in the level of agreement required across jurisdictions.
- For example, three verdict decisions are required in Scotland.
- Guilty, not proven and not guilty.
Hastie et al. (1983)- Examined differences in unanimous versus majority juries.
- Unanimous juries are more likely to hang
- Unanimous juries take longer to examine the evidence
- Juror satisfaction is higher in unanimous juries
- Jurors with minority views are more likely to be heard in unanimous juries
- Despite these differences, verdicts do not differ significantly between min and majority juries.
Shadow jury studies
- Collection of data concerning jury decision making through the use of ‘jurors’ who sit in on real trials but do not provide legally binding verdict decisions
- Ecological validity: Yes. At least, more ecological validity than mock jury studies.
- Internal validity: No. It is not possible to manipulate or control variables, or to infer causality.
Post-deliberation studies
- Collection of data from real jurors about their decision making and verdict decisions during real trials.
- Internal validity: No. It is not possible to manipulate or control variables, or to infer causality.
- It is illegal to interview jurors in many countries.
Case studies
Ecological validity Y Internal validity N
Mock jury studies
Ecological validity Y Internal validity N
Shadow jury studies
Ecological validity N Internal validity Y
Post-deliberation studies
Post-deliberation studies
burden of proof
on the prosecution to prove beyond reasonable doubt
inquisitorial system
when the court itself is actively involved in the investigation - not used in australia
