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Yr12 Legal Studies > The Criminal Trial Processs > Flashcards

The Criminal Trial Processs Flashcards

1
Q

Which section of constitution outlines the division of power

A

s51

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2
Q

What are the main factors influencing a court case

A
  • The seriousness of the matter (summary or indictable)
  • Whether the matter is being heard initially or on appeal
  • The nature of the offence
  • The age of the accused
  • Type of hearing (bail, committal, trial)
  • Whether the matter falls under state or federal law
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3
Q

What is local courts original jurisdiction

A
  • Hear summary offences
  • and conducts committal proceedings
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4
Q

What are summary offences

A
  • Offences that can be dealt with by a single judge
  • without a jury and
  • do not require preliminary (committal) hearing
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5
Q

What’s a committal hearing

A

Is a an inquiry held in the Local or Magistrate’s Court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court (establish prima facie)

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6
Q

What are the three categories of indictable offences under Criminal Procedures Amendment (Indictable Offences) Act 1995 NSW

A
  • Table one offences – offences dealt with summarily unless accused or prosecution elects to have the matter dealt with by a judge and jury
  • Table two offences – offences which are dealt with summarily unless the prosecution decides to have offence dealt with by judge and jury
  • Strictly indictable offences – offences which are most serious and must be dealt with by a judge and jury
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7
Q

What is appellate jurisdiction

A

Is the power for a court to hear appeals of the decisions of lower courts and to reject affirm of modify those decisions

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8
Q

What civil matters can local court hear

A

Matters up to value of $100,000

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9
Q

What are the advantages of local court

A
  • Matter is heard much faster
  • Cost of hearing is lower
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10
Q

What’s the role of the coroners courts

A

Handles inquiries into deaths under certain circumstances

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11
Q

What is original jurisdiction of the District Court

A
  • Serious criminal matters i.e. all indictable offences except murder and other very serious crimes.
  • Offences such as sexual assault, robbery and serious driving offences.
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12
Q

What civil matters does District Court hear

A

Up to $750,000

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13
Q

What is the District Court’s appellate jurisdiction

A

Over Local Court

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14
Q

What is original jurisdiction of the Supreme Court

A

very serious indictable offences such as murder

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15
Q

What is cap on civil matters in Supreme Court

A

No cap

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16
Q

What must appellant show for appeal to succeed

A
  • Appellant (person bringing appeal) must show that the lower court judge either wrongly used or misinterpreted the law.
  • No new evidence or fact can be heard
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17
Q

What is the purpose of appeals

A

Appeals seek to minimise the effects of wrong decisions made by a judge or magistrate

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18
Q

What matters does the Federal Court hear

A
  • Specialist court and deals with criminal matters that fall under Commonwealth law
  • Such as breaches of Competition and Consumer Act 2010 (Cth)
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19
Q

What matters does the Family Court

A

Deals with family law matters such as divorce applications and parenting disputes

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20
Q

What is the original jurisdiction of the High Court

A
  • Over matters involving Commonwealth laws or concerning the interpretation of the Constitution of Australia and the
  • Constitutional validity of laws
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21
Q

What is the appellate jurisdiction of High Court

A

Hear appeals from all state and territory Supreme Courts, such as appeals from the NSW Court of Criminal Appeal as well as the Federal Court of Australia

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22
Q

Purpose of Crimes (sentencing procedure) Amendment Act 2018

A
  • Introduced discounted sentences for early guilty pleas
  • 25% if before committal hearing
  • 10% if 14 days before first day of trial
  • 5% otherwise
  • Improved resource efficiency
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23
Q

What are the Drug Courts

A

Specialist courts that deal with offenders who are dependent on drugs

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24
Q

Why were Drug Courts introduced

A
  • Emerged in late 1999 due to disenchantment with traditional criminal justice approaches
  • Seeks to provide solutions to the cycle of drug use and crime
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25
Q

How are offenders referred to Drug Court

A
  • Offenders are referred to the Drug Court from the District and Local Court on entering a guilty plea (Diversionary measure).
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26
Q

What is the process after offenders have been reffered to Drug Court

A
  • They then spend a minimum of 2 weeks in custody to detoxify and for their individual treatment plan to be prepared.
  • Offender returns to the Drug Court to receive sentence for the charges and this is then suspended on entering into their ‘Treatment and Case Plan’
  • Plan involves drug testing three times per week, weekly home visits by Parole Officer, weekly counselling, pharmacotherapy if prescribed
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27
Q

What are some of the criteria that offenders must meet to be eligible for the Drug Court

A
  • Be highly likely to be sentenced to full-time imprisonment if convicted
  • Have indicated that he or she will plead guilty to the offence
  • Be dependent on the use of prohibited drugs
  • Reside within the specified catchment area
  • Be referred from a court in the catchment area
  • Be 18 years of age or over
  • Be willing to participate
  • Not be charged with a violent, sexual offence or an offence under Division 2 Part 2 of the Drug Misuse and Trafficking Act (1985)
  • Not be suffering a mental condition that could prevent or restrict participation in the program.
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28
Q

What are the advanatages of the Drug Court

A
  • Less expensive than imprisoning offenders (resource efficient)
  • Introduction driven by community concerns (responsive)
  • Lower re-offending rate (achieving just outcomes)
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29
Q

What are the disadvantages of the Drug Court

A
  • Currently only two in NSW therefore many people don’t get access
  • People may argue that someone on drugs will get off easier for committing the same offence as someone who wasn’t
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30
Q

Media article on Drug Court

A

The Guardian art 2015 ‘Justice done differently how the NSW Drug Court transforms lives’

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31
Q

What is the adversarial system of law

A

Adversarial system of law is where two opponent sides present their case to an impartial judge or jury who then determine the truth in the case

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32
Q

What is judges role in the adversarial system

A

Judge ensures procedural fairness and decides on the sentence if guilt is determined

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33
Q

What are the pros of the adversarial system

A
  • It is a fairer system because it allows each party equal opportunity to present their case and is less prone to abuse or bias by the official determining the case
  • Cases are carefully prepared before trial and lawyers have equal opportunity to present the truth to an impartial jury
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34
Q

What are cons of the adversarial system

A
  • In many cases, the competing sides are not equal before the law, with potential imbalances in resources, skills or knowledge
  • Judge cannot request additional evidence or testimony which would assist the case and potentially achieve justice
  • High standard of proof such as hearsay, opinion and relevance may limit all evidence being shown
  • Use of Jury’s (mentioned later
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35
Q

Who are the main legal personnel

A
  • Magistrate
  • Judge
  • Police prosecutor
  • Director of public prosecution
  • Public defenders
36
Q

What is the Magistrates role

A
  • Ensuring rule of admissibility of evidence are being followed
  • Deciding the verdict
  • Handing down a sentence
37
Q

What is Magistrates role in committal proceedings

A
  • They must decide if there is enough evidence to warrant a case in a higher court (establish prima facie)
  • If there is enough evidence a date is set for accused to stand trial in a higher court, if there is not enough evidence accused may leave
38
Q

How do committal proceedings help CJS

A
  • Highlights role of discretion in CJS and promotes resource efficiency (court cases are expensive)
39
Q

What is the role of the judge

A
  • Judges oversee proceedings and makes decisions about points of law
  • Give instructions to the jury (act as unbiased referee)
  • Once a jury reaches a verdict, the judge hands down the sentence.
40
Q

What act allows defendant to have a judge alone trial

A
  • Defendant can apply to the court for a judge-alone trial Criminal Procedure Act 1989 amended in 2011,
  • (NSW govt amended this removing the requirement for the prosecutor to consent) and the court now decides if it is in the interest of justice for a defendant to be tried by a judge alone
41
Q

Whats an example of a defendant applying for a judge alone trial

A

R v Gittany 2013 NSWSC

42
Q

What is benefits of holding a case without a jury

A
  • Ability to hold case without jury also means cases involving narrow and technical issues would be understood and resolved faster. (Resource efficiency).
  • Also stops juries being influenced by media.
  • ROLE OF LAW REFORM IN ACHIEVING JUSTICE – BALANCING THE RIGHTS OF THE OFFENDER AND THE COMMUNITY
43
Q

What cases do police prosecutors usually prosecute

A
  • Police prosecutors are specially trained police officers who present the prosecution’s case in the Local Court (resource efficiency)
  • Usually prosecutes summary offences in Local Court and Children’s Court
44
Q

What is the role of the DPP

A
  • For indictable offences, cases will be prosecuted by DPP on behalf of the community
  • DPP’s role is solely to prosecute the case they do not collect evidence
45
Q

Who are the people employed by the DPP

A
  • Prosecutors employed by the DPP are barristers (represent client in court) or solicitors (provide legal advice and occasionally appear in Local Court)
46
Q

What are public defenders

A
  • Barristers who appear in serious criminal matters for an accused who has been granted legal aid
47
Q

What is benefit of Public Defenders

A
  • Ensures all have access to justice (accessibility)
48
Q

What is charge negotiation

A
  • Charge negotiation (also known as plea bargaining or case conferencing) is where the accused agrees with the prosecution to plead guilty to a particular charge or charges.
49
Q

What does plea bargaining usually involve

A
  • Usually involves pleading guilty to a lesser charge in exchange for other higher charges being withdrawn, or pleading guilty in exchange for a lesser sentence.
50
Q

What is purpose of charge negotiation

A
  • Purpose of a plea bargain is to increase cooperation with legal proceedings
  • When a person pleads guilty it saves community the time and cost of a trial (resource efficient)
  • Pleading guilty demonstrates that accused shows accountability for their actions and the benefit for accused would be a discounted sentence up to 25% (use of discretion in balancing rights of offenders and society)
51
Q

What are arguments against charge negotiation

A
  • Charge negotiation is unfair as defendants forfeit some of their rights, including the right to trial by jury (for indictable offences) (reduces procedural fairness)
  • Lighter sentences as a consequence of charge negotiation results in the victim feeling as though justice has not prevailed (Impact on the victim)
  • Charge negotiation raises the possibility that innocent people may plead guilty to crimes they didn’t commit so that the guilty person is still out in society (i.e. Impact on the accused and on society)
  • The charge negotiation process may result in occasions when prosecutors may threaten more serious charges to intimidate the accused into pleading guilty to lesser charges. (i.e. Impact on the accused and on the integrity of the criminal justice process and hence society)
  • SMH art 2011 ‘Top judge outraged by plea bargain deals’ charge of attempted murder reduced to be triable summararily
52
Q

`What are arguments for charge negotiation

A
  • Charge negotiation is an administrative necessity – without it, courts would be flooded and the justice process would get bogged down and become inefficient (responsiveness and resource efficiency)
  • Reduces time delays and costs (Impact on the victim, the accused and society as a whole)
  • Charge negotiation saves the victim from the ordeal of giving evidence and being cross-examined (Impact on the victim)
  • Charge negotiation increases the rate of criminal convictions the accused more likely to confess for lesser crimes if they feel their sentence will be less severe –> a jury may not have handed down a guilty verdict due to inadequate evidence so conviction on a lesser charge is better than no conviction at all (Positive result for the victim and society)
  • 73% of cases end in a guilty plea
53
Q

What is example of charge negotiation

A
  • Shine v R 2016 (NSWCCA)
  • Mr Shine pleaded guilty to grievous bodily harm with attempt to murder and claimed he was suffering from delusional beliefs
  • Delayed entering guilty plea while waiting for psyche evaluation
  • Found guilty of attempted murder à however judge only issued a 20% discounted sentence for guilty plea on basis Shine ‘knew what he was doing’
  • Decision was appealed as it was deemed manifestly excessive and in contrary to psychiatric evaluation à shine was awarded 25% discount
54
Q

Media article for plea bargaining

A

SMH art ‘Top judge outraged by plea bargain deals’ Sept 2011

55
Q

What is legal aid

A

Legal aid is the provision of free or cheap legal services to people on limited incomes

56
Q

What is the aim of legal aid

A

Aim of legal aid is to redress inequalities of access to legal system by providing legal assistance and for those on low incomes, legal representation

57
Q

What is source of legal aid in NSW and what is its role

A
  • Source of legal aid in NSW is the Legal Aid Commission of NSW
  • (Legal Aid Commission act 1979 (NSW)
  • Role is to provide a legal practitioner who prepares a case and/or represents the accused in court
  • Serious matters a Public Defender may be appointed
58
Q

To receive legal aid what must a person pass

A
  • Means test – must show that his/her disposable income is less than a specified amount
  • Merit test – person applying for legal aid must have a good chance of winning their case (usually only applied in criminal appeals and Supreme Court bail applications)
  • Jurisdiction test – legal aid will only be granted for certain offences (granted for most except motor traffic offences, unless there is likelihood of prison sentence)
59
Q

Which case establishes right to legal aid

A
  • Dietrich v The Queen 1992
  • Dietrich was charged with several drug offences but was refused legal aid unless he pleaded guilty
  • Dietrich ended up defending himself in court but stated he did not understand the court system
  • Appealed to the high court on the basis that legal representation is necessary to ensure procedural fairness
  • High court found that a judge should refuse to hear a case where a poor person has been accused of a crime and has been refused legal aid
  • Right to legal aid only established for serious crimes
60
Q

What is media article on legal aid

A
  • Guardian art July 2019 ‘Lawyers warn legal aid at breaking point after NSW murder trail derailed’
  • Legal aid funding crisis is at a “breaking point” states Law Council of Australia President Arthur Moses à following the derailment of a high-profile murder trial in NSW
  • Three men due to face in NSW Supreme Court à court was forced to vacate four-month trial because legal aid rates were woefully inadequate for suitable barristers for lengthy and complex case
  • “chronic legal aid underfunding undermines the criminal justice system”
  • à results in trials being vacated or delayed “which not only has an impact on the accused, but also on the victims and witnesses.”
  • SMH art August 2019 ‘Absurd: NSW government ignored report on looming legal aid crisis’
  • Funding decreased from $379 million in 2018 to $362 million in 2019
  • Requires extra $59.2 million funding increase to avert legal aid crises
61
Q

What are fundamental principles of CJS to ensure accused person has a fair trial

A
  • Presumption of innocence
  • Burden of proof
  • Standard of proof
62
Q

What is presumption of innocence

A
  • The notion that accused people are innocent until proven guilt
  • Prosecution must prove guilt; accused people do not need to prove innocence
63
Q

What is burden of proof

A
  • The burden of proof means the responsibility for proving something
  • Due to presumption of innocence the burden of proof is on the prosecution to prove the accused committed an alleged crime
64
Q

What is standard of proof

A
  • The standard of proof means the weight or value given to the evidence
  • An accused person must be proved guilty beyond reasonable doubt à if there is reasonable doubt, he/she should be acquitted.
  • (in civil trials standard of proof is balance of probabilities)
65
Q

What are types of evidence

A
  • Real evidence
  • Documentary evidence
  • Witness testimony
66
Q

What are the three examinations that witnesses must face

A
  • Examination in chief (questioned by the side that called the witness to court)
  • Cross examination (questioned by the other side)
  • Re-examination (by the original side)
67
Q

Which act outlines rules regarding evidence

A

Evidence Act 1995 (NSW)

68
Q

What are grounds for objection of evidence

A
  • Relevance – evidence must prove a fact that is in dispute
  • Opinion – opinions of witnesses may not be given as evidence
  • Hearsay – when a witness gives evidence of what they heard someone else say
  • Character evidence – evidence of bad character is not allowed
  • Illegally obtained evidence – evidence that police have obtained illegally is not admissible in a court of law
  • Cautioning prior to interrogation by police – if a caution is not issued evidence may be deemed not admissible
69
Q

What is a defence to a crime

A
  • A defence to a crime is a legally acceptable reason for committing an act or omission
  • A defence will usually involve some denial, justification or excuse for the accused’s act
70
Q

How to defences help achieve justice

A
  • Legal defences to criminal charges help achieve justice by allowing the court to consider circumstances that might justify the accused’s act or reduce their culpability.
  • They limit the risk of an unjust conviction by permitting reduced liability in certain situations, for example serious mental illness or involuntary behaviour by the accused (rights of the accused)
71
Q

When might defences be controversial

A

When there is a victim

72
Q

What are the two types of defences

A
  • Complete
  • Partial
73
Q

What are complete defences

A
  • Mental illness
  • Involuntary behaviour
  • Mistake or accident
  • Self defence
  • Duress
  • Consent
74
Q

What are partial defences

A
  • Provocation
  • Substancial impairment of responsibility
75
Q

When may provocation be used

A

Reducing murder charge to manslaughter charge

76
Q

What is case on provocation

A
  • R v Singh 2012 NSWSC
  • Chamanjot Singh was sentenced in June 2012 in the NSW Supreme Court to six years’ jail for slitting his wife’s throat with a box cutter
  • He was found guilty of manslaughter by provocation, not murder, having successfully argued that he was provoked to kill his wife, Manpreet Kaur, because of suspicions of infidelity amongst other things
  • In this case, the trial came to focus on the actions and behaviours of the victim of homicide not her undisputed killer.
  • SMH art June 2012 ‘Six years for killing sparks call for law review’
77
Q

What is law reform surrounding provocation

A
  • Crimes Amendment (Provocation) Act 2014 (NSW) replaced the partial defence of provocation with a new partial defence of extreme provocation à which imposes a far higher test on the types of conduct that can amount to provocation. Now the provocative conduct on the part of the victim must have been a serious indictable offence
  • Silva v R (2016) NSWCCA
78
Q

When can substantial impairment of responsibility

A

in murder charges

79
Q

Which act contains rules regarding juries

A

Jury Act 1977 (NSW)

80
Q

What is juries role in adversarial system

A

Juries are a central part of the adversarial system of criminal law à important role in reaching an impartial judgment by a group of peers, based on the presentation by the parties of evidence at trial

81
Q

What are the roles of jurors during the trial

A
  • Listen to the evidence
  • Make notes
  • Ask for clarification on matters from the judge where required
  • Remain unbiased and impartial
  • Not talk to anyone about the case except for fellow jurors when they are all together
  • Apply the law as directed by the judge
  • Jurors must remain fair and open-minded when reaching their decision, they:
  • Should not be influenced by the media or their own personal beliefs
  • Make a judgment based solely on the evidence and testimony they are presented with.
82
Q

What happens when a jury is unable to reach a verdict

A

A jury unable to reach a decision is a ‘hung jury’, case will be dismissed and a re-trial will be ordered, resulting in significant strain on all parties

83
Q

How has jury act been amended to limit hung jurys

A
  • Important to note that in 2006, Jury Act 1977 (NSW) amended to allow majority verdicts of 11:1 or 10:2 where reasonable time for deliberation has passed and the Court is satisfied that it is unlikely that the jury will reach a unanimous verdict (note: role of judge’s discretion)
84
Q

What are pros of jury system

A
  • “Juries perform a valuable role in connecting the community with criminal justice and in bringing into the process the community’s values and standards”. à Nicholas Cowdery retired Director of DPP
  • Many jurors are educated sufficiently to understand and can ask for clarification and do so
85
Q

What are cons of jury system

A
  • Many jurors do not fully understand directions given by judges or even the meaning of ‘beyond reasonable doubt’ à Media report SMH, 26/3/13 ‘Jurors need more direction’
  • Jurors might more likely to be guided by emotion than fact unlike judges in judge-alone trials
  • Cases involving narrow and technical issues might be resolved more quickly without a jury saving time and money. à Media report ABC 14/12/2011 ‘Judge wants to cut juries from complex trials
  • Jury trials are more expensive and take more time than judge alone trials. Hung juries result in expensive re-trials and delay in justice (‘justice delayed is justice denied’)
  • Higher possibility for jury misconduct à Bond University report published in April, 2013 showed some jurors conduct polls of their Facebook friends as to the guilt of defendants, research the case through google, and even exchange Facebook messages with the accused

Yr12 Legal Studies (9 decks)

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