Criminal Pre Trial Procedure Flashcards
Crime
A crime is defined as an act or omission that is against the law, harmful; to an individual or society as a whole and is punishable by law.
Main difference between civil and criminal
The main difference between criminal and civil law lies in the consequences of the cases brought before the courts. A criminal case is aimed at punishing the offender, whereas a civil case is aimed achieving a civil remedy (usually compensation) for the person whose rights have been infringed.
Elements of a crime
actus reus (wrongful act) and mens rea (guilty mind)
Age of criminal responsibility
Under 10 cannot be charged, between 10-14 years mentally incapable of committing a crime, this can be overturned if it can be shown that the child understood that what they were doing was wrong.
Summary offences
minor criminal offences heard in the Magistrates’ Court.
Indictable offences
are serious crimes heard before a judge and jury
Parties involved
Prosecution and accused.
Right to silence
During questioning and at trial
Accused has the right to remain silent both during the investigation of the crime and during the court proceedings. Suspects are entitled to remain silent when being questioned by the police – other than giving their names and addresses when required.
Suspects also have the right to stay silent when being questioned, or cross-examined, during their trial. At the trial a judge must inform the jury that they must not conclude that the accused is guilty because he or she has chosen not to speak, although the jury might ignore this advice. The prosecution or trial judge must not make any inference about the fact that the accused has chosen to remain silent.
Pre trial criminal procedures
Bail
Remand
Committal proceedings
What is bail
Bail is when the accused is released from custody after being charged on condition that they appear in court at a later date. A person charged with an offence has the right to apply to be released on bail until their trial. If bail is refused, then they will be held on remand (in jail awaiting trial).
When may bail be granted
Bail may be granted at various stages of the criminal process – at the time of arrest, during the trial and while awaiting sentencing or an appeal. These procedures are the same regardless of which court an accused person will be tried in.
What happens when bail is granted
Most accused are granted bail and released on their own undertaking (a promise to appear in court when required). Alternatively the accused may be released if a surety promises to pay a sum of money if the accused fails to attend court. A surety is another person over the age of 18 who is prepared to guarantee that the accused person will attend court.
Who can grant bail
- a POLICE OFFICER at the police station when a person is charged
- a MAGISTRATE at a bail hearing in the Magistrates’ Court – court registrars also have the power tofix bail in some criminal cases (the Supreme Court hears bail applications for murder charges)
- a BAIL JUSTICE– a bail justice is appointed by the attorney-general to decide whether an accused person is eligible for bai.
Conditions of bail
Such as
• reporting to a police station
• residing at a particular address
Purpose of bail
The main aim of granting bail is to allow an accused person to go free until the hearing or trial, as a person is presumed innocent until proven guilty. Granting bail also allows the accused person time out of custody to prepare their case.
When may bail be refused
Situations such as if the person is
- charged with murder or treason (although bail is given in some exceptional circumstances)
- considered to pose an unacceptable risk to society
Remand
Someone who is refused bail will be held on remand until the case comes to trial, or until bail is granted in the future. This means they are held in custody.
Purpose of remand
To protect the community against the actions of an accused person. The community is protected as the accused is prevented from reoffending or committing any further offences while awaiting trial. The purpose of remand is also to ensure the court that the accused will appear at the next hearing. Remand also prevents an accused from interfering with witnesses or obstructing the course of justice. This will ensure a fair hearing by allowing witnesses the freedom to tell their story.
Committal proceedings
Indictable offences are more serious criminal offences, such as rape and murder, which can be tried before a judge and jury. One of the steps to take place before a criminal case is tried in the County Court, or Supreme Court, is a committal proceeding, which involves different types of hearings in the Magistrates’ Court to determine whether a case is ready for trial.
4 purposes of committal proceeding
Sufficient evidence
Fair trials
Clarify the issues
Pleading
Sufficient evidence
To determine whether the evidence is of sufficient weight to support a conviction by a jury at trial, often known as establishing whether a prima facie case exists (prima facie means at first sight)
Fair trial
To ensure a fair trial (if the matter proceeds to trial), for instance by ensuring that the prosecution’s case against the accused is adequately disclosed, enabling the accused to hear or read evidence and cross-examine prosecution witnesses, put forward a case at an early stage if the accused wishes to do so, and adequately prepare and present a case.
Clarify the issues
To clarify the issues before attending trial and thereby avoid taking a matter to trial when the evidence is flimsy, saving the time and resources of higher courts.
Pleading
To determine how the accused proposes to plead to the charge or charges.
Pre trial procedures
Criminal pre-trial procedures commence one the suspect has been found. These procedures include police investigation and questioning, bail and remand and committal proceedings (or preliminary hearing).
Purpose of pre trial procedures
ASSIST POLICE in identifying evidence for the prosecution
Protect the rights of the accused (INNOCENT UNTIL PROVEN GUILTY)
Provide POLICE RIGHTS to investigate
Provide an opportunity for the RELEASE OF ACCUSED pending trial
CLARIFY ISSUES
Determined whether the TRIAL SHOULD PROCEED
Determine if the accused wants to PLEAD guilty or not guilty.
Alternative outcomes for a person brought into custody
Released
Given a cautioning notice
Released pending summons
Charged and released on bail
Remanded
Summons
A Summons is a document commanding a person
attend court on a given date. It is issued if it is believed that the accused will voluntarily attend court, does not pose a danger to the community or will not commit further offences.
Arrest
An arrest allows the police to take a suspect into custody. A person may be arrested with or without a warrant. Reasonable force may be used when making an arrest and, under common law, if a suspect cannot be arrested without being killed, then the suspect may be lawfully killed. The coroner investigates all police killings.
Plea/charge bargaining
Agreements being made between the accused and the prosecutor, on an informal basis, about the charges to be laid. May lead to some charges being dropped in exchange for a guilty plea to the main charges or in exchange for evidence being given. Advantages of plea bargaining include reduced case time, but may lead to innocent people being pressured into pleading guilty.
Burden and standard of proof
The accused is INNOCENT until proven guilty. The STANDARD OF PROOF required is BEYOND REASONABLE DOUBT. The BURDEN OF PROOF lies with the PROSECUTION unless the accused is pleading a one of the recognised defences.
Commencing committal proceedings
The committal process begins with a filing hearing. The Magistrates’ Court will set down a date for the filing hearing once a charge sheet containing a charge for an indictable offence that is not able to be heard summarily is filed by the police informant.
Hand up brief
Committal proceedings are generally conducted with the use of written statements. Using written statements speeds up the process of committal proceedings and means the witnesses and the accused only need to explain the events once, in open court at the trial. The written statements are contained in a hand-up brief.
purpose of hand up brief
Eliminates the need for oral evidence as written statements are taken from witnesses unless the parties request oral evidence. A hand-up brief contains a copy of the charge sheet, copies of evidence such as witness statements and a list of exhibits gathered together which is handed to the magistrate. The brief also informs the accused of future hearing dates and their purposes.
Plea brief
At any time before the hand-up brief, if the accused decides to plead guilty, the informant (the member of the police force who is bringing the charge against the person accused of the crime) may serve a plea brief on the accused. The plea brief outlines the charge, states the material facts of the case and includes a statement by the victim.
5 hearings in the committal proceedings before the committal hearing
Filing hearing
Compulsory examination hearing
Special mention hearing
Committal mention hearing
Committal case conference
Filing hearing
At this hearing, the Magistrates’ Court may fix a date for a committal mention hearing and a time for the service of a hand-up brief. The court can also make any order or give any direction as it considers appropriate.
Compulsory examination hearing
The informant may apply to the Magistrates’ Court for this hearing to examine a relevant person, or to require that person to produce a document or other item, to assist their investigation of the offence. This must occur after the charge sheet has been filed and before the committal hearing commences. This step is optional.
Special mention hearing
Optional. Held on the application of a party or the court. Mainly a case management procedure. The Magistrates’ Court may set a timetable for efficient progress of the committal hearings. If the accused is pleading guilty to all charges, or they request it, the magistrate can immediately commit him or her to sentencing or a trial without continuing with the committal proceedings.
Committal mention hearing
Definition
Outline 5 things that may happen and explain one in detail
The informant and the accused must attend this hearing, unless excused. At a committal mention hearing, the Magistrates’ Court may take the following courses of action.
- The committal hearing may be conducted immediately.
*May determine whether the case should be dealt SUMMARILY - May hear an application for leave to CROSS-EXAMINE a witness. If the court allows particular witnesses to give oral evidence and be cross-examined, the matter will proceed to a contested committal mention hearing where the witness will appear and give oral evidence. If the application is not successful the matter will proceed using the hand-up brief.
- May fix a DATE for a committal hearing,
- May hear and determine any OBJECTION to disclosure of material.
Plea at a committal mention
The court must ask the accused how he or she pleads. If the accused pleads guilty and the court is satisfied that the evidence is of sufficient weight to support a conviction at trial, the court must commit him or her for sentencing and inform the accused that the sentencing court may take into account a plea of guilty.
Committal case conference
Optional tool that provides a more informal opportunity for the prosecution, accused and court to discuss the case and attempt to identify the key issues. The committal case conference should be held on same day as the mention hearing. Any statements/actions made are not admissible in any later proceedings, with the aim of promoting open discussion of case.
Committal hearing
The hearing is conducted in accordance with rules of evidence and procedure. At the conclusion of all the evidence and submissions, if any, the magistrate must make a determination about whether or not there is evidence of sufficient weight to support a conviction at trial.
If the magistrate finds that there is sufficient weight
If the magistrate finds there is evidence of a sufficient weight to support a conviction at trial, the accused is committed to stand trial and released on bail or held in remand. The evidence collected during the committal proceeding forms the depositions. The depositions are then sent to the (OPP) for the trial to be prepared.
If the magistrate decides that there is insufficient weight
If the magistrate decides that there is insufficient evidence, the accused is discharged and is allowed to go free; that is, he or she is not committed for trial. If further evidence is found in the future, the accused can once again be brought before the court as the committal proceedings are not a trial and the accused has not been found guilty or not guilty.
What happens once an accused has been ordered to stand trial
Once an accused has been ordered to stand trial, an indictment is drawn up. This is a written statement containing the details of the charge or charges against the accused. The indictment (formerly called a presentment) is usually filed in court at the commencement of the trial.
OPP
Office of public prosecutions
Depositions
A collection of all the evidence given by the witnesses under oath that can be used in court at a later date
