Module 10: Criminal courts and the judiciary Flashcards
Function of courts
factual
legal
operative
Function of courts - factual function
ascertain the facts of a matter through evidence
Function of courts - legal function
apply the law to the evidence
Function of courts - operative
to ensure courts opertations are effective and efficient
Criminal court powers
direct and forbid people to do things
order punishment
order people they suspect to be mentally ill to be detained for assessment and treatment
Courts
high court court of criminal appeal supreme court district court magistrates court
Court of Criminal appeal
appeals from district and supreme
grounds of appeal are typically error of law has been made
Supreme court
serious cases
highest court
District court
more serious offences
Magistrates court
most matters
no jury
deal with summary offences
restricted ability to impose penalties
The two systems of courts
adversarial
inquisitorial
Adversarial Process
system in australia
state as procecutor vs the accused
contest between the comnatants, judical officer as unbiased referee
prosecutor wins if accused pleas or is found guilty
judical officer than selects from available punishments for sentencing the offender
Adversarial process - safeguards
to ensure fairness
presumption of innocence in favour of accused
must be proven guilty beyond reasonable doubt
right to trial by jury
Prima facre case
serious offences are initially heard in magistrates court to determine if the jury could, based on evidence, find guilty
if so , defendant is commited for trial in higher court
Inquisitorial Process
european system from civil legal systems
judge is central to proceedings, controls who is called and how evidence is provided
aim is for judge to find the truth
lawyers assist judge rather than advocating for client q
Sentencing
upon finding guilty, criminal courts are responsible for punishment
Aims and purpose for punishment
retribution restitution deterrence rehabilitation Denunciation Incapacitation
Aims and purpose for punishment - retribution
offender to receive just desert
Aims and purpose for punishment - restitution
to compensate victims
Aims and purpose for punishment - deterrence
to deter other people or offender from engaging in behaviour
Aims and purpose for punishment - Rehabilitation
to help offender change and be better
Aims and purpose for punishment - Denunciation
to make strong statement on behalf of society that behaviour is unacceptable
Aims and purpose for punishment - Incapacitation
to prevent offender from performing other offences
Specialist courts
have limited or exclusive jurisdiction in a field of law presided over by a judicial officer with expertise in field
Problem oriented courts
seek to use the authority of courts to address underlying problems of individual litigants, the structural problems of justice system and the social problems of communities
court interventions
idea is that ordinary courts can adjourn proceedings to enable defendant to undertake some treatment program to address behaviour
successful completion is taken into account at time of sentencing
elements of criminal offences
prosecution must prove elements of an offence beyond reasonable doubt
elements divide into physical and fault elements
elements of criminal offences- physical elements
actus rectus
elements of criminal offences- fault elements
referred to as mental elements Mens Rea
Criminal courts
beyond reasonable doubt, if guilty accused can be incarcerated and fined
civil courts
on the balance of probabilities if guilty defendant has to compensate plantiff
extending criminal responsibilty
attempt, conspiracy,complicity
Trial process
Arrest Pre charge detention charge bail trial sentencing
Summary offences ( less serious)
less than two years,
in magistrate court
of law and fact
Indictable offences ( more serious)
more than 3 years in district or supreme court full jury trial judge determines question of law jury determines question of fact
Principles of sentencing
proportionality parsimony totality consistency individualised justice
Aggravating factors
factors that suggest a high level of criminality
Mitigating factors
factors that suggest a low level of criminality
Due process: Protecton of accused
right to silence privileged against self incrimination notice publicity standards of proof evidence impartionality trial of jury rights to appeal legal representation adversarial procedure
