Introduction to Judicial Process

Question 1

What is the model adopted in all criminal trials in NSW?

Answer 1

To see if the prosecutor is able to prove their case BEYOND A REASONABLE DOUBT.

Question 2

Until a defendant is proven guilty beyond a reasonable doubt, what are they?

Answer 2

The presumption is they are Innocent.

• They have a right to silence.
• They are under no obligation to assist in a criminal case.
• They cannot be called as a witness in a prosecution case against them.

Question 3

What are the three Court types that deal with criminal matters in NSW?

Answer 3

• Local Court
• District Court
• Supreme Court

Question 4

What is the purpose of the Local Court in NSW?

Answer 4

• Deals with 96% of all criminal cases.
• A single judge or magistrate dishes out the law as both tribunal of fact and tribunal of law in the jurisdiction.
• The jurisdiction deals with summary, table 1, table 2 and indictable offences at committal.
• Commital hearings establish prima facie for trial.

Question 5

What is the purpose of the District Court in NSW?

Answer 5

• Exercises original jurisdiction (single judge) where it hears indictable matters for the first time usually with a jury.
• Hears matters from committal, or ex-officio.
• Exercises appellate jurisdiction for appeals.

Question 6

What is the purpose of the Supreme Court in NSW?

Answer 6

• Highest NSW jurisdiction
• Has original jurisdiction dealing with the most serious indictable offences.
• Can deal with appeals direct from local court via ‘stated case’ where a magistrate may of erred at law.
• Can deal with appeals.

Question 7

What are the 5 standards of proof?

Answer 7

• Reasonable suspicion
• Reasonable belief
• Prima Facie
• Balance of probabilities
• Beyond a reasonable doubt

Question 8

What are ‘Facts in Issue’?

Answer 8

The facts in issue in a criminal hearing are the proofs of the offence.

Question 9

What is ‘Direct Evidence’?

Answer 9

Evidence that establishes a fact itself without reference to any other fact.

Question 10

What is ‘Circumstantial Evidence’?

Answer 10

Evidence which establishes a fact by inference or indirectly.

Question 11

In accordance with Section 55 of the Evidence Act - Relevance; explain what relevant evidence is?

Answer 11

Evidence is relevant if it directly or circumstantially can prove the likelihood as to the existence of one or more proofs of the offence.

Question 12

What is ‘Probative Value’?

Answer 12

It is a measurement of relevance. It is a judgement of the degree of relevance. Something that has a high degree of evidentiary weight will have a high degree of Probative Value.

Question 13

What is ‘Reliability’?

Answer 13

It is a measure of accuracy. Evidence that is reliable is more likely to be associated with the truth.

Question 14

What is ‘Fairness’?

Answer 14

Fairness incorporates preventing a miscarriage of justice and is concerned with maintaining the integrity of the hearing.

Question 15

What is a ‘Prejudicial Effect’?

Answer 15

It means the improper effect the evidence may have on the jury.

Question 16

In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule the EXCLUSION of the evidence depends on what?

Answer 16

-That on the Balance of Probabilities; the party seeking its inclusion has acted in contravention of an Australian law or in a manner of impropriety.

IE; was a law broken or an improper method used to obtain the evidence.

Question 17

In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule the INCLUSION of the evidence depends on what?

Answer 17

• That on the Balance of Probabilities, the party seeking inclusion of the evidence, establishes that the desirability of admitting the evidence outweighs the undesirability and therefor should be admitted.

Question 18

What 7 points must a court take into consideration when assessing whether to admit evidence following an application to exclude under section 138 of the Evidence Act 1995?

Answer 18

• the probative value
• the importance of the evidence
• the gravity of the impropriety or contravention (to obtain the evidence)
• whether the impropriety or contravention was deliberate or reckless.
• whether the impropriety or contravention was contrary to UN international covenant on civil and political rights.
• the difficulty of obtaining the evidence without impropriety or contravention of an Australian Law.

Question 19

Draw the structure of a criminal trial/hearing in NSW

Answer 19

Refer to ‘the structure of a criminal trial/hearing in NSW’

In ‘Introduction to JP summary’