The Criminal Trial Process Flashcards
How does the court hierarchy indicate a lack of respect for customary law?
Australia’s Indigenous population had developed diverse systems of customary law for thousands of years prior to European arrival
Today, common and statutory law processes take precedent over customary law precedent
While Western Australia has an Aboriginal Community Court to deal with Indigenous offenders, there are no such practices in NSW
As such, the rights of Indigenous accused are not recognised and Ingdigenous Australians are, per capita, the most incarcerated group in the world (27% of NSW prison population)
What is plea negotiation?
The justice system encourages defendants to plead guilty by offering a 25% reduction on the prison sentence if the plea is entered in the local court before committal
This protects the rights of victims by sparing them the ordeal of giving evidence
It balances the rights of society by avoiding the costs and time of expensive trials
It gives the offender an opportunity to express remorse and reduce their sentence but also places pressure on them to admit guilt
What is charge negotiation?
This is when the accused agrees with the prosecution to plead guilty to a lesser charge in exchange for higher charges being withdrawn
This balances the rights of society by securing convictions at a lower cost and with less time
It protects the victim by securing a conviction and recognising their loss BUT some victims may feel aggrieved that the offender is not charged with a higher crime
This balances the rights of the defendant by giving them the option to reduce their punishment BUT puts great pressure on them to plead guilty and forfeit their right to trial
What are issues surrounding legal representation in Australia?
The High Court case of Dietrich v The Queen (1992) established a limited right to legal representation for serious indictable offences
In 1979, the NSW Government created the Legal Aid Commission Act 1979 (NSW) which provides legal assistance and representation to people who are socially and economically disadvantaged
The threshold to access aid is out of the reach of many - they must be means-tested to determine whether or not they have the means to pay for legal representation
In 2015, The Productivity Commission released a report estimating that only 8% of Australian households were eligible for Legal Aid, despite over 14% living below the poverty line
What issues arise when provocation is used as a defence to criminal behaviour?
Provocation is a controversial defence, as it implies that the victim had some level of responsibility for their death
Provocation as a defence has been abolished in WA, Victoria & Tasmania, but still exists in NSW
It has been used in some cases to defend husbands killing their wives, such as the case of R v Singh (2007) in which the defendant killed his wife after she threatened to leave him - reducing his sentence to manslaughter and only six years non-parole
Cases such as these have led many women to claim that the law on provocation is outdated and protects the interest of male offenders over female victims
What have been recent changes to the role of juries in the courtroom?
In 2006, NSW Parliament amended the Jury Act 1977 to the Jury Amendment (Verdicts) Act 2006
This act allowed majority verdicts (11 jurors instead of unanimous) where reasonable time for deliberation had passed and the court is satisfied a unanimous verdict would not be reached
This act was passed despite the NSW Law Reform Commission arguing against it, as it was found that most hung juries were split 7-5 or 8-4, and would not apply under the act
What is the role of statutory and judicial guidelines?
The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in NSW
The act clearly states that a court may not impose a prison sentence unless it is satisfied that no other penalty is appropriate
The maximum penalty that an offender can receive for an offence is usually decided by parliament and listed in NSW
Ultimately it is up to the magistrate or judge to determine the most appropriate sentence - judicial discretion
Judicial officers can also be guided by precedents in cases with similar facts
What has been recent controversy surrounding mandatory minimum sentences in Australia?
In 2014, following the sentencing of Kieran Loveridge, NSW introduced an eight-year minimum sentence for one-punch killers under the influence of alcohol, amending sections 25 A & B of the Crimes Act 1900
Mr O’Farrell also claimed that deterrence was the motive behind the mandatory sentences for killing police officers “ensuring that there is the strongest possible message”
In response to the one-punch laws, NSW Bar Association President Phillip Boulten stated that by removing judicial discretion, mandatory sentences “result in penalties that are often disproportionately harsh”
What are the four purposes of punishment?
Deterrence
Passing a higher sentence in the hope that fear of punishment might help prevent future offences
Multiple studies have shown that deterrence is ineffective in preventing crime
Retribution
Punishment considered to be morally right/deserved because of the crime’s nature
Its purposes are to ensure that the offender is adequately punished for the crime, make them accountable for their actions and recognise the harm to the victim
Rehabilitation
Attempting to reform the offender so that they do not commit future crimes
Encourages offenders to eliminate the factors that contributed to their punishment
May include a number of sentencing options and programs, such as drug counselling, educational training, and anger management courses
Incapacitation
Making an offender incapable of re-offending by restricting their freedom
Requires a thorough assessment of whether the offender will re-offend
What are common aggravating factors?
Offence; if the offence involved cruelty, was motivated by hate or prejudice, or was committed in company
Victim; if the victim was vulnerable or if there were multiple victims
Offender; if the offender abused a position of trust, has prior convictions
What are common mitigating factors?
The offender is of good character/youthful
The offender pleaded guilty or assisted police
The offender has shown honest remorse/has good rehabilitation prospects
What is the role of the victim in the criminal trial process?
The victims of crime can impact sentencing by providing a victim impact statement
Section 26 of the Crimes (Sentencing Procedure) Act 1999 allows the victim an opportunity to participate in the process by letting the court know how the crime has affected them
They are only permitted for serious offences involving violence and at the judge’s discretion
Victim impact statements are controversial, as some critics argue that (in the case of murder or manslaughter) sentences could be impacted depending on how much a victim was loved
Reform was made to the role of victim impact statements in sentencing following controversy about their lack of importance in the R v Loveridge case
The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) 2014 allowed for “a victim impact statement given by a family victim… to be considered and taken into account by a court in connection with the determination of the punishment”
What are two forms of alternative sentencing?
Circle Sentencing - for some adult indigenous offenders where sentencing is conducted in a circle made up of local community members and a magistrate
Recognises indigenous customary law and improves understanding
Restorative Justice - a form of sentencing involving a voluntary conference between the offender and the victim of the crime
Provides an opportunity for offenders to take some responsibility for their actions and for victims to heal
