Topic 3 - Criminal Law

Question 1

What is an Adversarial trial?

Answer 1

An adversarial trial is a contest between two teams in front of an impartial adjudicator to resolve conflicts

Question 2

What is an Inquisitional trial?

Answer 2

An Inquisitional trial is when the judge runs the trial (calls the witnesses, asks the questions is on a hunt for the truth), and the parties play a secondary role (don’t ask many questions and only get the chance to ask questions when the judge has finished)

Question 3

What are pre-trial procedures?

Answer 3

These are steps taken before a trial, including filing pleadings, holding preliminary hearings and conducting discovery to gather and exchange evidence.

Question 4

What is the purpose of pre-trial procedures?

Answer 4

To test the strength of evidence, and to see if the trial can be avoided. Save time and money.

Question 5

What is a ‘plea negotiation’?

Answer 5

A plea negotiation is the accused person negotiating with the prosecution around what type of sanction they will receive if they plead guilty.

Question 6

What is a committal hearing?

Answer 6

A pre-trial hearing is held for indictable offences that will be tried in the County or Supreme court where the accused has pleaded not guilty. Heard before a magistrate in the Magistrates’ court.

Question 7

Processes before a trial?

Answer 7

• commital hearings
• plea negotiation

Question 8

What are the key elements of a committal hearing?

Answer 8

• exchange of positions, evidence, arguments
• magistrates court
• magistrate witnesses, then decides whether or not to go to trial (saves time and money)

Question 9

Trial procedure

Answer 9

1. Entry of Judge; introduction of barrister’s plea to charges
2. Opening address by prosecution and defence
3. The prosecution calls each of its witnesses 3 stages of questioning (examination in chief, cross-examination, re-examination)
4. The defence calls each of its witnesses 3 stages of questioning (examination in chief, cross-examination, re-examination)
5. Closing submissions by prosecution and defence
6. Judge ‘charges’ the jury
7. Jury retires, deliberates and returns with verdict

Question 10

What evidence cannot be used in a trial?

Answer 10

Irrelevant Evidence, Hearsay Evidence, Improperly Obtained Evidence

Question 11

What is irrelevant evidence?

Answer 11

Things that are not relevant or material to the matter in dispute in the trial cannot be admitted as evidence, and can be objected.

Question 12

What is hearsay evidence?

Answer 12

‘A said to B “C stole a book’ - B cannot be asked about what A said in order to prove that C really did steal the book. The court wants to hear directly from the person who makes the claim.

Question 13

What is improperly obtained evidence?

Answer 13

Evidence that has been illegally obtained which is not called to be used in courts. Even if the accused confesses but has not been properly advised on their rights the confession will not allowed to be used in court.

Question 14

How many people are there in a criminal jury?

Answer 14

12

Question 15

Strengths of Juries?

Answer 15

1. Involves a broad cross-section of ordinary people with different backgrounds, so decisions should reflect community values
2. Helps to promote an understanding of the legal system to ordinary citizens
3. Having more than one decision-maker reduces the burden/pressure on any one person or on a judge alone deciding the verdict.
4. Gives the community confidence that they are being ‘tried by their peers’

Question 16

Weaknesses of Juries?

Answer 16

1. Lots of people get out of jury duty (disqualification and excuses) so it is not a true cross-selection of the community
2. Ordinary people might not be able to follow the case due to legal language or the complex details of some trials
3. Having juries adds to the time and cost of the trial
4. Juries do not give reasons for their decisions so there is no transparency
   Jurors can be swayed by charismatic and persuasive barristers

Question 17

What is the role of the jury?

Answer 17

Hears evidence, applies the law as directed by the judge, and decides if a person is guilty or not guilty of a crime, based on the facts.

Question 18

What is the examination in chief

Answer 18

They swear in each witness - not assigned to any party (belonging to the court, the principle of fairness)

Question 19

What is cross-examination?

Answer 19

Asking questions to a witness that is not yours

Question 20

What is re-examination?

Answer 20

An optional step after cross-examination is where you can reinterview your witness if needed.