Crime - The criminal trial process Flashcards
what is the local court and what jurisdiction do they hold
- has original jurisdiction
- lowest court in NSW and deals with summary matters such as drink driver
- cases are heard by a magistrate and no jury
- oversees a committal process for indictable offences where prosecutor must prove that there is a prima facie case (that there is a case strong enough to put before a jury)
what is the district court and what jurisdiction do they hold
- has both original and appellate jurisdiction
- jurisdiction is applicable to all indictable offences (eg. bigamy, manslaughter, armed robbery, malicious wounding) apart from murder, treason, serious sexual assault and kidnapping
- cases heard by a judge and jury
- can hear appeals from the local court
what is the supreme court and what jurisdiction do they hold
- highest court in NSW
- single judge and a jury of 12
- jurisdiction is applicable to the most indictable offences (eg. murder, arson) and appeals from lower courts
what is the HCA and what jurisdiction do they hold
- highest court in Australia
- hears appeals from from the NSW court of criminal appeal and on constitutional cases
- hears appeals in federal criminal matters from the federal court
what is the drug court and what jurisdiction do they hold
- specialist court that sits in three locations
- takes referrals from local and district courts for offenders that are dependant on drugs and are eligible for a drug court program
- focuses on rehabilitation, not punishment
what is the court of criminal appeal and what jurisdiction do they hold
- on par with the supreme court
- cases are heard by 3 - 5 judges
- hears appeals from the local and district court on questions of law as well as appeals on single judge decisions in the supreme court
- focuses on issues of law and procedural fairness
what is the children’s court and what jurisdiction do they hold
- covers criminal and welfare jurisdiction; hears all crimes committed by people under 18 except some traffic offences (local court) and homicide, aggravated sexual assault
what is the adversarial system
- key aspect of Australia’s legal system where 2 opposing sides argue their case before a court and a neutral third party
- judge and jury have no role in testing the evidence (eg. they can’t examine witnesses)
how does the adversarial system differ from the inquisitorial system
as opposed to the adversarial system where 2 sides are presenting evidence to an impartial decision maker, the inquisitorial system allows the judge to investigate and find their own evidence
what are arguments for the adversarial system
- both sides have the opportunity to have their case heard by an impartial judge
- can make the trial lengthy due to both sides presenting evidence
- jury
what are arguments against the adversarial system
- there may be injustices because there may be imbalances such as the resources, skills, knowledge or experience of the two par
what is a charge negotiation
a charge negotiation refers to the negotiation of charges between the defendant and prosecution resulting in the dropping of charges in exchange for a plea of guilty on remaining charges or reducing overall charges
what are arguments for charge negotiation
- forgoes the trial process saving costs and efficiency
- Increases rate of criminal convictions
- Resource efficiency → makes a trial cheaper and quicker
- Can provide a greater certainty of outcome for the accused
- Can reduce the maximum penalty
- Can spare alleged victims and witnesses the trauma of having to testify
- Aids the court in dealing with case load
what are arguments against charge negotiation
- prioritising source efficiency over a fair trial can compromise victim rights eg. R v Koch (2009), victim Nanette May was unaware of the reduction of Koch’s charges from attempted murder to malicious injury with intent, an outcome of CN
- limited consideration for the victim
- police may overcharge accused to gain a conviction on something
- some crimes may go unpunished
- accused may plead guilty to a lesser charge they are innocent of
what is legal aid
the provision of free or cheap legal services to people on limited incomes - effective measure for achieving justice as it helps redress inequalities of access to the legal system by providing legal assistance, and for those on low incomes, legal representation in court hearings
why is legal aid important
Important way to provide access to the legal system - without it, the legal system becomes an avenue only available to those with considerable economic power
why is legal representation important in an adversarial system
the outcome depends on how well the prosecution and defence present a case
what is the standard of proof in a criminal trial
- Juries (or magistrates in summary offences) must be convinced beyond reasonable doubt that the accused has committed the offence beyond reasonable doubt
- All aspects of the crime have to be proved; actus reus, mens rea, causation
who holds the burden of proof in a criminal trial
- Rests with the prosecution meaning an accused in innocent until proven guilty be the prosecution
- HOWEVER, the BOP of proving a particular defence may be on the accused
which act governs the use of evidence in a criminal trial
Evidence act 1995 (NSW) - provides guidelines for what can be given, will be accepted as evidence in a court
what is inadmissible evidence
evidence that a can’t be considered by a judge or jury in court
- may be because it was obtained illegally by police, irrelevant or relates to a persons opinions
what are some rules of evidence
- hearsay evidence
- opinion evidence
- relevance
- character evidence
what is the right of silence
- an accused person doesn’t have to say anything in court at all though all corporations must submit documents even if such documents might incriminate them
- s.89 of the evidence act states that silence cannot be construed as unfavourable inference - a conclusion unfavourable to one party cant be drawn from evidence that the party or another person failed or refused to answer questions
what are the 3 steps of witness examinations
- Examination in chief - witness gives evidence, prosecution undertakes questioning
- Cross examination - defence lawyer can test the accuracy and objectivity of the evidence
- Re examination - both sides can re examine their own witnesses after CE in order to clarify any issues arising out of CE
what is a complete defence in a criminal trial
a justification that excuses the defendant’s action and results in an acquittal - if made out, they are completely exculpatory
what is a partial defence in a criminal trial
an excuse for the defendant’s action that might result in a reduction in the charge and/ or punishment - Sections 23 of the crimes act 1900 (nsw) allows 2 partial defences - seen as mitigating circumstances that caused the accused to carry out the act
what are the 5 complete defences
- mental illness
- self defence
- compulsion: necessity and duress
- consent
what are the 2 partial defences to murder
- provocation
- substantial impairment of responsibility
what is the role of juries in a criminal trial
Juries have the role of determining the verdict in criminal trials and must determine guilt ‘beyond reasonable doubt’
which act governs the law surrounding juries in NSW
Jury Act 1977 (NSW)
who isn’t eligible for jury service
convicted criminals, work in a legal profession or emergency services, are disabled, don’t speak english
when are judge only trials possible and which amendment stipulates so
Amendments to the Crimes (sentencing procedures) Act 1999 make it possible for judge only trials in the ‘interest of justice’ (eg. when the trial is highly publicised)
what are the requirements for jury verdicts in NSW and how does it differ from other states
federal juries must reach verdicts unanimously but there are different requirements for NSW state juries
- the 2006 Jury Amendment (verdicts) Act NSW amended the Jury Act 1977 to allow for 11-1 or 10-1 verdicts
- this aim was to reduce the number of hung juries
- reform was criticised heavily by those arguing that it is better to have retrials than the potential for innocent people to be convicted
what is the criminal trial process
the process which involves the prosecution and defence presenting their cases to a court whereby a verdict and sentence will eventually be decided
- involves legal rep, adversarial process, evidence, defences and juries
it is the second stage in the criminal justice system which also consists of the investigation process and sentencing and punishment
what are the main syllabus points for the CTP
JURIES are LACED
- legal representation
- adversarial system
- charge negotiation
- evidence
- defences
what is a jury
a group of typically 12 members
what is the coroners court
specialist court that conducts inquests into unusual deaths and suspicious fire; not bound by the same rules as other courts; does not conduct trials
what can prosecution appeal for in the court of criminal appeal
usually can’t appeal an acquittal but can appeal a leniency of sentence
eg. R v Loveridge
what can defence appeal for in the court of criminal appeal
the harshness of a sentence
eg. R v Skaf
