the criminal trial process

Question 1

what is court jurisdiction?

Answer 1

court jurisdiction is the system that refers to the type of legal matters that each court has the power to hear and make decisions on, based on the court hierarchy

Question 2

what courts fall under the category of ‘lower courts’?

Answer 2

• Local Court
• Coroner’s Court
• Children’s Court

Question 3

what courts fall under the category of ‘intermediate courts’?

Answer 3

• District Court

Question 4

what courts fall under the category of ‘superior courts’?

Answer 4

• Supreme Court
• High Court

Question 5

what is the adversary system?

Answer 5

the adversary system (or adversarial system) is the court system followed in Australia, which relies on two opposing sides each presenting their own positions, with an impartial judge or jury hearing each side and determining the truth in the case, as opposed to the inquisitorial system, in which a judge or group of judges play a role in investigating the case

Question 6

what are judges and magistrates?

Answer 6

a judge is a judicial officer who presides over intermediate and superior courts, overseeing proceedings, maintaining order in the courtroom and ensuring that the procedures of the court are followed, and eventually reaching a verdict and handing down sentences and rulings; magistrates hold the same role as judges in lower courts

Question 7

what are prosecutors?

Answer 7

prosecutors are the representations of the state or the ‘Crown’ who bring the action against the accused, with the intention of obtaining an appropriate form of sanction or punishment for the offence

Question 8

what is a police prosecutor?

Answer 8

a police prosecutor is a member of the NSW Police Force with specialised legal training to conduct prosecutions, and who typically appears as a prosecutor in a summary offence

Question 9

what is the Director of Public Prosecutions (DPP)?

Answer 9

the Director of Public Prosecutions (DPP) employs public prosecutors to appear in court for indictable offences and for some summary offences

Question 10

what are public defenders?

Answer 10

public defenders represent accused persons who cannot afford to pay for a barrister or solicitor, in circumstances in which the offender has been granted legal aid

Question 11

what are pleas?

Answer 11

a plea is a formal statement of guilt or innocence by the accused

Question 12

what are charge negotiations?

Answer 12

a charge negotiation is an agreement between the Director of Public Prosecutions (DPP) and the accused that involves the acceptance of a guilty plea, usually in exchange for something else

Question 13

what is the role of legal representation in the criminal trial?

Answer 13

criminal trials are complex and involve the potential loss of liberty for the accused, and therefore it is essential for an accused person to be represented by a legal professional who understands the law and can provide effective advocacy, leading to the right of legal representation held by all suspects of a crime

Question 14

what is the burden of proof in the criminal trial?

Answer 14

aka. the ‘onus’, the burden of proof is the responsibility of the prosecution, to prove the case against the accused

Question 15

what is the standard of proof in the criminal trial?

Answer 15

the standard of proof is the level of proof required for a party to succeed in the court, that being ‘beyond reasonable doubt’

Question 16

how is evidence used in the criminal trial?

Answer 16

in order for evidence to be admissible in court it needs to be relevant to the case and legally obtained by the investigating police; evidence can exist in the form of real evidence, documentary evidence and witness testimony

Question 17

how are witnesses used in the criminal trial?

Answer 17

when giving evidence, witnesses are required to take an oath, and will then be asked a series of questions regarding their factual first-hand knowledge or eyewitness testimony

Question 18

what is the difference between complete and partial defences to a crime?

Answer 18

a complete defence to a crime is used to justify the defendant’s actions, and, if successfully proven, results in either dropped charges or an acquittal, whereas partial defences only apply to murder charges and, if proven, will result in the charges being lowered to manslaughter

Question 19

what is the complete defence of mental illness/insanity?

Answer 19

the defence of mental illness or insanity requires the defendant to prove that they were mentally incapacitated when they committed the offence, meaning that they did not hold the mens rea to commit the offence eg. psychosis

Question 20

what is the complete defence of involuntary behaviour/automatism?

Answer 20

the defence of involuntary behaviour or automatism similarly relates to the offender’s mens rea, requiring the defendant to prove that they committed the offence due to involuntary behaviour eg. an epileptic fit

Question 21

what is the complete defence of mistake?

Answer 21

the defence of mistake is difficult to prove, but can be used if it can be shown that the accused’s action was an honest and reasonable mistake, meaning the defendant did not hold the mens rea necessary

Question 22

what is the complete defence of self-defence/necessity?

Answer 22

the defence of self-defence or necessity requires the defendant to prove that they committed the offence whilst trying to defend themselves or another person against the victim, which can be risky as what the defendant sees to be ‘reasonable force’ against the victim may be different to what is seen as reasonable by the jury eg. fighting back against an assault

Question 23

what is the complete defence of duress?

Answer 23

the defence of duress requires the defendant to prove that they committed the crime against their own free will, and were pressured into doing so eg. disposing of a body under pressure

Question 24

what is the complete defence of consent?

Answer 24

the defence of consent is typically used in cases of sexual assault, in which the defendant must prove that the victim consented to what happened to them

Question 25

what is the partial defence of provocation?

Answer 25

the defence of provocation requires the defendant to prove that their actions were a direct result of the other person’s actions, causing them to lose control eg. continued abuse leading to the abuser’s murder

Question 26

what is the partial defence of diminished responsibility?

Answer 26

the defence of diminished responsibility is similar to the complete defence of mental illness or insanity, in which it must be proved that the defendant killed a person out of mental impairment, resulting in a lack of mens rea

Question 27

what is the role of juries in the criminal trial?

Answer 27

juries reflect the right of an accused person to be impartially judged impartially by their peers, based on evidence presented at a trial; it is the jurors’ roles to remain fair and open-minded, and to not be influenced by outside media or their own personal beliefs, before ultimately coming to a verdict of either guilty or not guilty

Question 28

what are some acts of legislation associated with the criminal trial process?

Answer 28

• Criminal Procedures Act 1986 (NSW) - sets out procedures for criminal trials in NSW
• Evidence Act 1995 (NSW) - governs the admissibility of evidence in criminal trials
• Crimes Act 1900 (NSW) - defines various criminal offences, and outlines penalties for these crimes
• Bail Act 2013 (NSW) - outlines the circumstances in which a person accused of a crime can be granted bail
• Jury Act 1977 (NSW) - sets out the rules for the selection and empanelment of juries in criminal trials in NSW

Question 29

what are some cases associated with the criminal trial process?

Answer 29

• R v Loveridge (2014) - one punch deaths, law reform for mandatory sentencing, juries
• Dietrich v The Queen (1992) - right to legal representation
• R v Silva (2015) - complete defence of self-defence, statutory and judicial guidelines, judicial discretion
• R v Lazarus (2017) - judicial discretion
• Brittany Higgins case (2022) - juror misconduct
• R v Kemp (1957) - defense of automatism, defense of insanity

Question 30

what are some media articles associated with the criminal trial process?

Answer 30

• “Lynette Daley death: Adrian Attwater and Paul Maris jailed for brutal attack” (2017), ABC News

Question 31

what are some statistics associated with the criminal trial process?

Answer 31

Bureau of Crime Statistics and Research (BOCSAR):
* 65% of charge negotiations result in a guilty plea to a less serious charge/reduced charges
* 55% of sentence indications result in a guilty plea
* 44% of people who use provocation defence are found guilty of murder, 20% found guilty of manslaughter, and 35% acquitted
* 55% of those who use the mental illness defence are found not guilty
* conviction rate for defendants tried by juries is 72%
* defendants are acquitted 55% of the time in judge-only trials, compared to 29% in jury trials