CRIMINAL TRIAL PROCESS

Question 1

Court Jurisdiction

Answer 1

• area over which court has authority
• divided between state and federal courts

Question 2

Role of Local Court

Answer 2

hear minor criminal cases (summary offences), hear comital hearings, conduct colonial inquires, children court hearings, divert some drug offenders from court system in order to receive treatment.

Question 3

Summary and Committal Hearings

Answer 3

• Summary hearing - heard in local court by magistrate, no jury, maximum penalty $22000 fine and or 2-year imprisonment.
• Committal hearings - preliminary proceedings for trial by jury (prosecutor prove prima facie meaning sufficiently strong enough case against accused to put matter before jury)

Question 4

Indictable Offence 3 Categories

Answer 4

• Table One offences- dealt with similarly unless either side elects to have matter heard in higher court
• Table two offences- dealt with summarily unless only prosecution decides offence dealt with by judge
• Strictly indictable offences- most serious judge and jury.

Question 5

 Children’s court hearings

Answer 5

most charges for individuals under 18 however murder and manslaughter will go to supreme court.

Question 6

 Coronial inquiries/ Coroners court

Answer 6

• if unnatural death or fire coroner will hold inquest into circumstances.
• a local court that deals with the manner and cause of a person’s death, and with fires and explosions where property has been damaged or a person has been injured.

Question 7

 Drug court NSW 1999

Answer 7

non-violent cases by offenders’ dependant on illegal drugs aim to get offenders of drugs -> reduce drug related crime and addiction. Offer drug court program includes judicial and probationary supervision, drug treatment, support services if offenders break conditions -> tried under normal judicial process

Question 8

Role of District Court

Answer 8

hear indictable offences e.g., manslaughter, armed robbery, hear appeals from local court
- table one and two offences could be heard by judge alone

Question 9

Role of Supreme Court

Answer 9

very serious indictable offences e.g., murder, manslaughter and arson.
- sits as criminal court of appeal

Question 10

Role of the Criminal Court of Appeal

Answer 10

hears appeals from the district and supreme courts about the severity of sentence or on questions of fact or law, hear appeals from local court on questions of law (from local district and single judge decisions of supreme)
- ensure effects of wrong decision made by judge or magistrate when exercising discretion are minimised.

Question 11

Role of the High Court

Answer 11

hear appeals from the NSW court of criminal appeal on questions of law, hear appeals from federal courts of criminal matters.

Question 12

State Courts

Answer 12

• Federal Court of Australia- some criminal matters must be heard by federal court e.g., those under the Competition and Consumer act 2010
• High court of Australia- hears appeals from deferral court and NSW court of criminal appeal.

Question 13

Adversarial system

Answer 13

a system of law where two opposing sides present their
cases to an impartial judge or jury

Question 14

Inquisitorial system

Answer 14

a system of law where two sides present their cases to a
judge who directs the cases and can call for particular
evidence

Question 15

Legal Personnel - Police prosecutors

Answer 15

present case on behalf of state, specially trained who usually prosecutes in local court, calls in witnesses examines them and proves evidence.

Question 16

Legal Personnel - Director of Public Prosecutions

Answer 16

holder of a government office responsible for prosecuting indictable offences, either barrister or DPP prosecutes case.
- issue prosecution guidelines, to guide them and inform public about actions taken in its name.

Question 17

Legal Personnel - Public Defenders

Answer 17

legal practitioners appointed by NSW government to represent accused people in the district court and supreme court. only available to those given access to legal aid. Appointed under Public Defenders Act 1995 (NSW)

Question 18

Solicitors

Answer 18

A person charged with an offence will usually contact a solicitor, who will be able to give the accused advice on a range of matters, including the charge, the alleged offence and the procedures surrounding a trial, and will assist in interactions with the police investigating the case. A solicitor will usually prepare a brief for a barrister to present in court.

Question 19

Barristers

Answer 19

provide legal advice for the accused on the likely outcome of the case and to present that case in court. Public defenders are paid public barristers who are independent of the government and perform the same duties as other barristers. They will appear or advise in relation to criminal trials, sentencing matters and appeals in the District Court or Supreme Court, and may be briefed (instructed) by a private solicitor, through the Legal Aid Commission or through a community based legal group

Question 20

Plea

Answer 20

a formal statement of guilt or innocence by the accused.
once charged the accused has the option to either plead innocent or guilty. If they plead guilty this may then allow them to receive a reduction in charged and ultimately a reduction their sentence.
- this results in no criminal hearing and the judge must only impose a punishment

Question 21

Charge negotiation

Answer 21

an agreement between the Director of Public Prosecutions and the accused that involves the acceptance of a guilty plea, usually in exchange for something else

Question 22

Legal representation including legal aid

Answer 22

• ensures a fairer process as court proceedings can be difficult for non-lawyer to deal with.
• ## there is no legal right to legal representation expect in serious criminal cases. This was established in Dietrich vs the Queen 1992

Question 23

Legal aid

Answer 23

provision of free or cheap legal services to people on limited incomes. Aim is to redress inequalities of access to legal system by providing legal assistance. Primary source of this is legal aid commission of NSW.

Question 24

3 tests that person must pass for legal aid

Answer 24

• Means test- must show that disposable income is less than specified amount
• Merit test- person must have good chance of winning case (applied in criminal appeals and supreme court bail applications)
• Jurisdiction test- legal aid granted for certain types of legal matters.

Question 25

Presumption of innocence

Answer 25

innocent until proven guilty prosecution must prove guilt.

Question 26

Burden of proof

Answer 26

responsibility of proving something. Onus on prosecution. Burden of proof on proving defence e.g., mental illness on accused.

Question 27

Standard of proof

Answer 27

weight or value given to evidence. Accused proved guilty beyond reasonable doubt.
- Use of evidence including witnesses- witness (someone who knows something about the case).
- Examination of evidence- examined by prosecutor or defence orally
- examination in chief- witness giving his/her evidence- generally can only ask questions asked.
- Cross examination- after give evidence they can be cross examined by opposing side.
- Re-examination- re-examine witness after cross examination to clarify any issues.

Question 28

Rules of evidence

Answer 28

questions about what questions lawyers can ask and which must be answered by witness. Magistrate/ judge determines what is admissible or not

Question 29

Hearsay and Opinion evidence

Answer 29

• Hearsay evidence- what they saw not what someone heard
• Opinion evidence- witness cannot give opinion in court unless expert witness

Question 30

• Character evidence and Relevance

Answer 30

Character evidence - normally evidence about bad character of accused can be given.
Relevance- only evidence which relates to matter

Question 31

Right to silence, confessions and illegally obtained evidence

Answer 31

• Right to silence- accused does not have to speak in court
• Confessions- cannot be used unless voluntarily and normally be electronically
• Illegally obtained evidence- judge can refuse to admit any evidence which has been illegally obtained. Judge/ magistrate must consider communities interest and fair trail of accused

Question 32

Use of Evidence, including witnesses:

Answer 32

-In a criminal case, evidence is presented to the court through witnesses.
-Witnesses are people who know something about the case.

Question 33

• Examination of witnesses:

Answer 33

-Witnesses are called by both the prosecution and defence and are examined orally by the
lawyer.
-There have been cases to highlight the fallibility of expert witnesses, e.g., CASE - R v Wood
(2012).

Question 34

• Examination in Chief:

Answer 34

This is undertaken by the prosecution for prosecution witnesses and by
the defence lawyer for the defence witnesses. A witness can only answer questions that they’re
asked.

Question 35

• Cross Examination:

Answer 35

After a witness has given evidence, they can be cross-examined by the
lawyer from the other side. This gives the opposing side a chance to test the accuracy and
objectivity of the evidence.

Question 36

-Re-examination:

Answer 36

The prosecution and defence can re-examine their own witnesses after a
cross-examination to clarify any issues that may have risen.

Question 37

Defences to criminal charges

Answer 37

• legally acceptable reason for committing an act or omitting duty.
• complete defences completely clear accused, partial partially covers only available for murder.

Question 38

Complete or absolute defences

Answer 38

used to justify the defendant’s actions and, if successfully proven, will result either in charges being dropped or, if the defence is presented during a trial, an acquittal

Question 39

Acquittal

Answer 39

a judgment that a person is not guilty of the crime of which they have been charged

Question 40

Mental illness - complete defences

Answer 40

at the time the defendant was of unsound mind which resulted in them not knowing what they were doing was wrong, or them not knowing the criminal action they committed.

Question 41

Involuntary behaviour or automatism - complete defences

Answer 41

an act that cannot be controlled or is not voluntary, such as an epileptic fit

Question 42

Mistake - complete defences

Answer 42

the defendant acted under an honest and reasonable mistake and thus could not have formed the mens rea

Question 43

Self Defence - complete defences

Answer 43

defendant admits committing crime, but claims acting in self-defence, equal and reasonable force

Question 44

Necessity - complete defences

Answer 44

act or omission was committed was necessary to avert serious danger.

Question 45

Duress - complete defences

Answer 45

defendant admits to committing criminal act-> due to being frightened by threats of death/ serious bodily harm. Compulsion forced to act criminally due to circumstances.

Question 46

Partial Defences

Answer 46

reduce liability of defendant from murder to manslaughter

Question 47

Provocation

Answer 47

defendant claims he or she was aggravated by victim in such way it would cause actions of ordinary person to lose self-control. R vs Sing 2012 Mr sing killed wife due to her provoking him and angering him-> lost self-control.