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Legal Studies > Resolving Disputes with Trial (Criminal) > Flashcards

Resolving Disputes with Trial (Criminal) Flashcards

1
Q

What is the criminal justice system?

A

The criminal justice system is made up of all principles, institutions and procedures used to investigate crimes, arrest and interview suspects, conduct court committal, trial and sentencing proceedings and supervise custodial orders. This includes parliament and law enforcement agencies.

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2
Q

What are some law enforcement agencies?

A

Police, Prosecuting authorities (DPP), Correctional services, courts

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3
Q

What role does the police play in the criminal justice system?

A

Investigate, collect evidence and arrest suspects

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4
Q

What role do prosecuting authorities including the DPP play in the criminal justice system?

A

Prove guilt beyond a reasonable doubt at trial

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5
Q

What role do correctional services play in the criminal justice system?

A

manage and supervise custody of prisoners in jail, remand and parole

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6
Q

What role do the courts play in the criminal justice system?

A

Hold the preliminary hearings, trials and appeals

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7
Q

What does criminal reliability require?

A

“Actus reus” and a “mens rea”

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8
Q

What is the Actus reus?

A

guilty act

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9
Q

What is the mens rea?

A

guilty mind

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10
Q

What are the exceptions when determining criminal reliability?

A

If it is a strict liability offence or if it is a guilty act as the intent is not relevant

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11
Q

What are the three levels of criminal offences?

A

Summary offences, minor indictable offences, indictable offences

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12
Q

Where can summary offences be heard?

A

Can only be heard and decided by a magistrate in the magistrates court

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13
Q

What is a summary offence?

A

Less serious than indictable offences and the penalties that can be imposed are not as great. Maximum fine is less than $120,000 and maximum imprisonment is two years.

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14
Q

What are some examples of summary offences?

A

disorderly behaviour, driving under the influence of alcohol or a drug and minor criminal damage to property.

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15
Q

Are juries involved in summary offence trials?

A

No jury trial

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16
Q

What is the time limit within which a complaint for a summary offence may be laid?

A

Time limit of two years to lay a complaint for a summary offence or six months if an expiation notice may be given for the offence [Criminal Procedure Act 1921 (SA) s 52.

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17
Q

What act defines summary offences?

A

the Criminal Procedure Act 1921 (SA) s.5

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18
Q

How are summary offences resolved if defendant pleads guilty?

A
  • Prosecution summaries facts to the court
  • Accused admits the facts
  • Magistrates hears submissions (plea in mitigation)
  • Accused attempts to explain reasons and circumstances behind the offending- with a view to receiving a lighter sentence (may inc. character statements)
  • Magistrate hands down sentence –ex tempore (then and there). In some cases Magistrate may take time to deliberate on a matter. Sentence will Inc. court costs, victims of crime levy, and a sanction (loss of personal freedom).
  • Possibility of an appeal (if error in law or fact).
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19
Q

How is a summary offence resolved if the defendant pleads not guilty?

A
  • Following a not guilty plea, matter is referred to trial. Time allowed depends on the complexity of the matter and no. of witnesses
  • Police prosecutor presents case- examines witnesses.
  • Accused cross-examines witnesses and the prosecution re-examines.
  • Accused presents case by examining witnesses.
  • Prosecution cross-examines and the accused may re-examine.
  • Closing addresses by parties.
  • Magistrates verdict and sentence.
  • Possibility of appeal (if error in law or fact).
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20
Q

What are the two categories of indictable offences?

A

Minor and major

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21
Q

Where are minor indictable offences dealt with?

A

In the magistrates court unless the defendant chooses to have the charge dealt with in a superior court.

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22
Q

Who prosecutes a minor indictable offence in the magistrates court?

A

prosecuted by the police until a charge determination is made.

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23
Q

Who prosecutes a minor indictable offence in a trial by jury?

A

From this time on, and if the defendant elects for trial by jury, solicitors from the State Director of Public Prosecutions (DPP) takes over the conduct of the matter at the magistrates court.

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24
Q

Who prosecutes a minor indictable offence if it reaches the district or supreme court?

A

The DPP has the conduct of the matter once it reaches the District or Supreme court.

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25
Q

Where are minor indictable offences defined?

A

In s. 5 of the Criminal Procedure Act 1921 (SA)

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26
Q

What are minor indictable offences defined as?

A
  • Offences not punishable by imprisonment and having a maximum fine exceeding $120 000;
  • offences with a maximum imprisonment of five years;
  • offences with a maximum imprisonment greater than five years, being one of the following:
    • interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000;
    • threat to interfere with, damage or destroy another person’s property where if the threat had been carried out, the loss resulting would not have exceeded $30 000;
    • recklessly causing harm
      indecent assault (where the victim is 14 years of age or older)
    • dishonesty offences where the amount involved is $30 000 or less (but not robbery or offences of violence); and;
    • serious criminal trespass where the intended offence involves dishonesty (not being an offence of violence) involving $30 000 or less
    • interference with, damage to or destruction of property involving $30 000 or less.
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27
Q

What are some examples of minor indictable offences?

A

theft and receiving, deception, serious criminal trespass, illegal use/interference with a motor vehicle, aggravated assault causing harm, indecent assault, stalking, gross indecency, property damage

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28
Q

What is a major indictable offence?

A

Generally the more serious crimes, and penalties are generally greater than for other offences.

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29
Q

What right is guaranteed within a major indictable offence?

A

Guarantees the defendant the right to a trial by jury

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30
Q

Where are major indictable matters dealt with?

A

Wherever the defendant is pleading, in the District or Supreme court. The most serious offences, murder, attempted murder and treason, are dealt with in the Supreme Court. Other major indictable offences are dealt with in the District court.

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31
Q

What are some examples of major indictable offences?

A

murder, robbery, rape, unlawful sexual intercourse, dishonesty and damage property offences (including arson) where the amount involved exceeds $30 000.

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32
Q

What happens before a person charged with an indictable offence goes to trial?

A

There is usually a committal (preliminary) hearing in the Magistrates Court at which the prosecution’s evidence is presented to see if there is enough evidence (prima facie) upon which a conviction could be founded.

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33
Q

what is prima facie?

A

evidence

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34
Q

How are indictable offences resolved?

A
  • Police investigate the crime, collect evidence and accept responsibility to prepare and arrest suspects
  • Prosecution carries the burden of proof.
  • Need to reach standard of proof beyond a reasonable doubt
  • Defendant presents their own case at trial
  • The judiciary (judge) controls the conduct of the trial to determine guilt
  • Jury = determiner of fact (deciding whether the accused is guilty or not)
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35
Q

What is the process for a guilty plea for a minor indictable offence?

A
  • Guilty plea
  • District or Magistrates Court for sentencing
  • District Court for trial (jury possible)
  • Guilty verdict -> sentencing
  • not guilty verdict
  • no verdict -> retrial possible
36
Q

What is the process for a not guilty plea for a minor indictable offence?

A

-> Preliminary hearing
-> prima facie case established
-> district or magistrates court for trial
-> guilty verdict -> sentencing
OR
-> not guilty verdict

37
Q

What is the process for a guilty plea for a major indictable offence?

A
  • Preliminary hearing in magistrates court
  • Prima facie case established
  • Guilty plea
  • District court or supreme court for sentencing
38
Q

What is the process for a not guilty plea for a major indictable offence?

A
  • Preliminary hearing in magistrates court
  • Prima Facie case established
  • Not guilty plea
  • District or supreme court for trial (jury possible in both)
  • guilty verdict -> sentencing
    OR
  • not guilty verdict
    OR
  • no verdict -> retrial possible
39
Q

What is the criminal trial process?

A

pre-trial -> trial -> post-trial

40
Q

What happens during the pre-trial process?

A
  • Incident reported
  • Police investigation
  • Arrest/charge
  • Bail application
  • Preliminary hearing
41
Q

What is involved when an incident is reported?

A
  • Not all crimes are reported
  • Generally no requirement on public to report
  • Exceptions: mandatory notification – e.g. child or elderly abuse
42
Q

What is involved in the police investigation?

A
  • Police required to investigate, arrest and charge, collect evidence that the DPP can use to prove guilt beyond reasonable doubt at a trial
  • Can question people but can’t insist on answers
  • Police have certain rights to search
  • Suspect can be detained for questioning at police station for 4 hours (or longer if Magistrate’s approval given)
43
Q

What is involved in an arrest/charge?

A
  • Police gather evidence for DPP
  • Suspect must be advised of rights and cautioned
  • Suspect can be detained for questioning at police station for 4 hours (or longer if Magistrate’s approval given)
  • Suspect must be informed of the charge
  • Once charged, there’s obligation to bring accused to a Magistrate as soon as practicable so that accused can be indicted and he is able to apply for bail. Police can grant bail but unlikely if someone is about to be charged with serious indictable offence
44
Q

What are the rights of a suspect on arrest?

A
  • Remain silent
  • Presumption of innocence
  • Bail
  • Legal representation
  • Phone call
  • Know what you are being arrested for
45
Q

What is bail?

A

Bail: lawfully enforceable undertaking by a charged person that he can be released from custody on conditions:
- Attends all court hearings
- Complies with conditions – e.g. report to Police Station, surrender passport, residence
- Forfeits sum of money if fail to comply with any of the above

46
Q

What is bail based on?

A

Based on presumption of innocence – a person’s liberty should only be removed for very good reason.

47
Q

What is considered when granting bail?

A

Factors taken into account:
- Seriousness of offence
- Probability of absconding/re-offending
- Need to protect victims, witnesses or the Accused
- Past bail record
- Strength of the evidence

48
Q

Who can grant bail?

A
  • police
  • magistrate
  • superior court judge
49
Q

What is a preliminary hearing?

A

Judicial screening mechanism. Occurs in magistrates court to determine whether a prima facie case exists. DPP has to produce adequate evidence to suggest a conviction could be sustained at a trial in the superior court.

50
Q

What are the 2 reasons for having a preliminary hearing?

A

(a) Avoid putting an accused through stress and financial/personal hardship if the matter is frivolous or where there’s little likelihood of a conviction
(b) Ensure scarce time and resources of the State are not wasted by poorly prepared or weak cases

51
Q

What happens at the preliminary hearing?

A
  • DPP must file all documentation and evidence in the Court and to the Accused at least 14 days before preliminary hearing – conforms with the right of Accused to know details of the alleged offence and the evidence against him, so he can prepare a defence.
  • Information (charge) is read and Accused asked to plea
  • If Accused admits the charge -> commit for trial in superior court
  • If Accused pleads not guilty -> preliminary hearing continues
  • Refusal to plea is taken as ‘not guilty.’
  • Failure to attend can result in warrant issued for arrest by the Court and enforced by the Police
  • DPP presents evidence and can be challenged by defence
52
Q

What are the options for a magistrate in a preliminary hearing?

A

(a) Reject the Information (charge) – no prima facie case – discharge the Accused. Note: double jeopardy does NOT apply and new charges could be laid later.

(b) Decide that a prima facie case exists -> commit Accused to trial in higher court – District or Supreme (for murder).

(c) Can commit to trial in Magistrates Court if Accused agrees and offence is not a major indictable offence

(d) Bail can then be continued or Accused remanded in custody.

53
Q

Are court proceedings open to the public?

A

Court proceedings are generally open to the public. Judge can close the court and conduct the trial in a closed court (in camera) if it is in the interests of justice - e.g. to protect a minor/child

54
Q

What is the trial process?

A
  • Arraignment
  • Jury empanelled
  • Prosecution case
  • Defense case
  • Summing up
  • Verdict
55
Q

What principles/rights underpin trials?

A
  • Right to be heard
  • Right to trial by jury
  • Right to remain silent
  • Presumption of innocence
  • Burden of proof with the prosecution
  • Right to test and challenge evidence
  • Strict rules of procedure and evidence
56
Q

What is the role of the parties at trial?

A

Present own case. Prosecution has the onus (burden) of proof

57
Q

What is the role of lawyers at trial?

A

Prosecution = present evidence and call witnesses
Defence = represent client, present evidence and call witnesses (not to prove innocence)

58
Q

What is the role of witnesses at trial?

A

“Viva voce” form to answer questions put to them (penalties exist for deliberate untruth - perjury). Oath or affirmation

59
Q

What is the role of the judge at trial?

A

Enforce rules of evidence and procedure
If no jury – determiner of fact
Sentences guilty party

60
Q

What is the role of the jury at trial?

A

Listen to and evaluate admissible evidence to determine facts – beyond reasonable doubt

61
Q

What is involved in the arraignment?

A
  • A formal reading of a criminal charge in the presence of the accused to inform the accused of the charges. In response to arraignment, the accused is expected to enter a plea.
62
Q

What is involved in empanelling a jury?

A
  • pool of 25 from whom the jury will be selected are present
  • 12 will be selected
  • each side has challenges - peremptory and for cause
63
Q

What is a case example where jurors were excused because of bias?

A

R v Bird (1991) - two accused were Hell’s Angels members - jurors excused because of their bias against motorcycle club members

64
Q

What is involved in the prosecution case?

A
  • opening address to jury
  • evidence in chief
  • cross-examination by defence
  • re-examination
65
Q

What is involved in the defence case?

A
  • opening address
  • evidence in chief
  • cross-examination by prosecution
  • re-examination
66
Q

When can the defense challenge the evidence submitted by the DPP?

A

The defense can at any time challenge the evidence submitted or about to be submitted by the DPP. When this happens, a legal argument about the admissibility of the evidence is conducted by the judge, in the absence of the jury.

Judge rules on whether the evidence is allowed or excluded

67
Q

Is the defence obliged to call witnesses or submit evidence?

A

No obligation on defense to call witnesses or submit evidence – can cross examine prosecution witnesses. Can rely only on rebutting prosecution evidence under cross-examination

68
Q

When can the prosecution rebut?

A

If the defense raises evidence of which the prosecution was not aware (an alibi) the prosecution has the opportunity to rebut it

69
Q

What is involved in the closing address?

A
  • Both sides sum up their case in light of the evidence prosecution first then the defence
  • Defence always has the last word
70
Q

What is involved in the judge’s summing up for the jury?

A

After the closing addresses the judge sums up:

  • Burden of proof and standard of proof
  • The role of the jury to weigh up the evidence
  • Might compare and contrast evidence – come to a conclusion about the facts
  • Gives information about the relevant law and how it applies to the facts
  • General duty of the jury regarding types of verdict and need for secrecy
71
Q

What is involved in the verdict?

A
  • Jury retires to consider their verdict - in private
  • Judge considers their verdict
  • Verdict announced in court
72
Q

What happens when the judge concludes the trial?

A
  • Discharge an acquitted person “you are free to go”
  • Remand a convicted person (the prisoner) in custody (or continuing bail) for sentencing
  • Thank and dismiss the jury
  • Set a date for sentencing submissions and sentencing
73
Q

What is involved in the post-trial process?

A
  • sentencing hearing
  • sentencing
  • appeal
74
Q

What is involved in the sentencing hearing?

A
  • Prosecution and Defence Counsel make submissions to the judge
  • Judge may ask for reports – e.g. psychiatric, medical
  • Victims of crime heard – victim impact statement
  • Character witnesses – e.g. employer, church, school
  • A sanction will not be decided at this stage. Judge will adjourn to consider submissions.
  • At a later date matter will be re-convened. Judgement (including sentencing) read to the defendant.
  • Sentencing posted to Courts Administration Authority website within in 24-48 hours
75
Q

What are the different theories of sentencing?

A
  • punishment - retribution
  • protection of society
  • deterrence
  • rehabilitation of the offender
76
Q

What is involved in the sentencing?

A

Factors a court will consider when determining a sentence are listed in s10 of the Criminal Law (Sentencing) Act 1988 (SA)

These factors include:
- Circumstances of offence
- Personal circumstances and effect on victim
- Other offences
- Injury, loss or damage caused to victim
- Personal circumstances of the victim
- Remorse or contrition shown
- Guilty plea and co-operation in investigation
- Effect on offender’s dependents
- Need to protect community
- Deterrent effect
- Punishment is adequate
- Character, previous history, age, means, mental and physical condition of the defendant
- Prospects of rehabilitation
- Any other relevant matter

77
Q

What are the two types of sentences?

A

custodial and non-custodial

78
Q

What does custodial sentencing involve?

A
  • Head sentence
  • Non-parole period
79
Q

What is a head sentence?

A

The period a prisoner will spend in jail if parole is denied by the parole board

80
Q

what is a non-parole period?

A

the period of time a prisoner must serve in prison before they are eligible to apply for parole

81
Q

What is involved in a non-custodial sentence?

A
  • home detention
  • community service order
  • fines
  • good behaviour bond
82
Q

What are the grounds for appeal?

A

issues of law and issues of fact

83
Q

Are appeals a re-trial?

A

No, the Court of Criminal Appeal reviews the conduct of the case to ensure it was a fair trial

84
Q

When can a case not be appealed?

A

When it is a jury verdict of not guilty

85
Q

What are the two options of an appellate court when ruling on an appeal?

A
  • Find for appellant
  • Find for respondant
86
Q

How is an appeal heard in the high court?

A

special leave needs to be sought to appeal to the High Court of Australia - not automatically granted

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