Underlying Principles of the Criminal Law System Flashcards
What are the principles of criminal law?
- Independence of the judiciary
- Presumption of innocence
- Rights of the accused
- Right to silence
- Double jeopardy
What is meant by independence of the judiciary?
- Courts need to be seen as separate from the other branches of government- this helps the public to have faith in the courts.
- Judges must be free from any conflicts.
- Their only interest in the trial should be ensuring that it is conducted in accordance with the rules and procedures of the adversary system of trial.
What is meant by presumption of innocence?
- All defendants have the presumption of innocence.
- Prosecution carries the burden of proof.
- Trials are conducted to attempt to prove to a judge or jury that the accused is guilty beyond a reasonable doubt.
- An individual should not be punished for a crime unless they have been found guilty by a court.
- Presumption of innocence is not protected in the Constitution-but is strongly enshrined in Common Law.
- Has been upheld by the High Court on several occassions.
What treaties is Australia a signatory on which cover the right to the presumption of innocence?
Article 14 (2) in ghe International Covenant on Civil and Political Rights (ICCPR). “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty, according to law”
Article 4 of the ICCPR has a derogation clause allowing the signatory country (in this case Australia) to suspend or restrict any of the clauses in the treaty- but only in an emergency.
It is also a human right- outlined in the Universal Declaration of Human Rights.
What are the rights of the accused?
- Presumption of innocence
- Right to remain silent
- Right to challenge the admissibility of evidence in a trial
- Right to cross-examine prosecutions witnesses
- Right to trial by jury
- Adherence to strict rules of evidence and procedure to ensure a fair trial
- Principle of double jeopardy
- Right to be heard
- Right to legal representation
What questions must an individual answer despite the right to silence?
An individual must answer questions to establish their identity. Other than this an individual does not need to answer any questions from police.
An individual only needs to provide their name and address if they are suspected of being involved in the commission of a crime, or are in the process of committing a crime, or they believe you are able to assist them in investigating an offence (Summary Offences Act 1953 S, s 74A).
Refusing to give your name and address to a police officer is an offence under s 74A (3).
What does s74AB od the Summary Offences Act 1953 say police are allowed to do?
Seek the name and address of the driver or passenger of a vehicle if they are suspected of being involved in the commission of a crime or are in the process of committing a crime, or they believe you are able to assist them in investigating an offence.
What is the right to silence?
A defendant can’t be compelled to give evidence in a criminal trial, in case they accidentally incriminate themselves.
What is double jeopardy?
A person cannot be convicted twice for the same offence, and therefore be a risk of being punished twice for the same incident.
How are Australians protected against double jeopardy?
- This is protected by International Law
- The International Covenant of Political and Civil Rights (ICCPR)
- Article 14 (7) “no one shall be liable to
be tried or punished again for an
offence which he has already been m
finally convicted or acquitted in
accordance with the law and penal
procedure of each country.”
- Australians are currently protected against double jeopardy under s4C of the Crimes Act 1914 (Cth).
Why have changes been recommended to double jeopardy laws around the country?
Initially, under state laws is someone was tried, and then acquitted of an offence they could not be brought before the courts again for the same incident.
Individual states have taken different approaches concerning these recommendations.
There are several high profile cases that highlight the different issues surrounding double jeopardy and its application in Australia.
