Criminal Law Criminal Pre-Trial Procedures

Learning Intentions Elements of an effective legal system Criminal pre-trial procedures I can describe the criminal pre-trial procedures and their purposes, including: bail remand and committal hearings Success Criteria

Introduction to Criminal Law What is a crime? Act or omission committed against the community at large that is punishable by the law. A person suspected of a criminal offence is prosecuted by the state. Two elements actus reus – guilty act mens rea – guilty mind

Types of Criminal Offences Summary Offences Minor crimes that are heard in the Magistrates’ Court and before a magistrate, but not before a jury. Eg drinking in a public Indictable offences Serious crimes that are heard before a judge and jury. Most serious are heard in the Supreme Court eg murder, manslaughter, treason and culpable driving. Others are heard in the County Court.

Criminal Procedures Once a crime has been committed, a range of processes and procedures may be used to investigate, prosecute and sanction an offender: Pre-trial procedures – gathering evidence Trial procedures – hearing an offence Post trial procedures – determining an appropriate sanction.

Commencing a Criminal Case Usually starts with a police investigation Accused is presumed innocent until proven guilty Accused has a right to remain silent Only courts hear criminal cases (not tribunals) Burden of proof is on the prosecution 6

Police Investigation While the police will investigate most crimes, not all crimes will be prosecuted. Depending on: The amount of evidence obtained to support a conviction The willingness of witnesses to cooperate with investigations The nature and seriousness of the offence The age of the offender/s The offender’s previous criminal history.

Police Caution I must inform you that you are not obliged to say or do anything, but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights; You may communicate with or attempt to communicate with a friend or a relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. If you are not a citizen or permanent resident of Australia, you may communicate with or attempt to communicate with the consular office of the country of which you are a citizen.

Police Questioning The right to remain silent Police can ask for a name and address Searches With a warrant Must prove they have reasonable grounds to believe that they will find stolen goods/goods that may be evidence/goods may be used in a crime/evidence Without a warrant If they believe a person is carrying illegal drugs, stolen goods, firearms or offensive weapons. Can also search anything the person is carrying and their car. Fingerprints Finger, palm, toe and sole prints Destroyed if not charged within 6 months – must be informed Videotaped – copy parent or guardian present or order from Children’s Court. Body Samples and DNA Person under the age of 10 cannot be forced to give a blood sample under order of Children’s Court

Police Interview

Criminal Pre-Trial Procedures Procedures that occur before a trial commences in a criminal case in the County or Supreme Court Purposes of criminal pre-trial procedures include protect the rights of the accused provide rights to the police provide an opportunity for the accused to be released pending trial clarify issues determine whether a trial should proceed determine if the accused wishes to plead guilty or not guilty Types of criminal pre-trial procedures Bail Remand Committal hearings

Bail Accused released from custody after being charged Must appear in court at a later date May be granted at various stages Most are granted bail and released on their own undertaking (a promise to appear in court when required) May be released if a surety promises to pay a sum of money Can be granted by: a police officer at the station when a person is charged a magistrate at a bail hearing in the Magistrates’ Court an honorary justice (formerly known as a bail justice)

Conditions that could be imposed along with undertaking or surety Reporting to a police station Residing at a particular address Submitting to a curfew Not contacting specified persons or classes of persons Surrender of passport Not drive a motor vehicle or carry passengers when driving Specifying locations or zones that the accused must not visit Purpose of bail Allow an accused person to go free until the hearing or trial Allows time out of custody to prepare case Upholds presumption of innocence

Remand If not on bail, accused is held on remand – kept in custody until trial Time on remand if person found guilty may be deducted from prison sentence Purpose Protect the community Ensure the accused will be at the next hearing Prevents interference with witnesses or obstructing the course of justice

Committal Proceedings Designed to establish whether the prosecution has a case against the defendant. Prosecution must establish that there is sufficient evidence against the defendant to support a conviction by a jury in a higher court. If not sufficient evidence, the defendant is discharged. Allows the defendant to hear the prosecutors evidence against them

Committal Mention Hearing Designed to identify those cases in which a defendant intends to plead guilty (avoids unnecessary delays) Defendant not required to enter a plea – approx. 30% indicate they will plead guilty. If contested magistrate will require information about: The number of witnesses to be called. Likely length of the hearing The court may hear an application for leave to cross-examine a witness. If the court allows particular witnesses to give oral evidence and be cross-examined, the matter will proceed to a contested committal mention hearing where the witness will appear and give oral evidence. If the application is not successful the matter will proceed using the hand-up brief. The court may fix a date for a committal hearing, and hear and determine any objection to disclosure of material.

Committal Hearing Prosecution presents case Use of hand-up brief Contains written statements, the charge sheet, copies of documents the prosecution intends to produce as evidence, interview transcripts, photographs and a list of exhibits Given to the magistrate and the accused Presented by the prosecution as their case May ask witnesses to attest to truthfulness of statements and give supplementary evidence- in-chief Accused may cross-examine witnesses if leave is given to do so Accused may present case Can call witnesses (examination process) Can make submissions May say nothing Determination by magistrate as to whether or not there is evidence of a sufficient weight to support a conviction

Strengths of pre-trial procedures Bail Upholds rights of accused Presumes an accused person is entitled to bail Can be granted with conditions (balance of rights and protection of society) Avoids exposure to influences of prison Remand Ensures justice can be done Protects society Ensures witnesses are protected and evidence not impeded Committal hearings Save time and resources Accused is informed of prosecution’s case Support notion that accused is innocent until proven guilty Charges may be withdrawn or combined – helps achieve a fairer trial and save time

Weaknesses of pre-trial procedures Bail Risk that the accused absconds Risk that the accused will reoffend or cause harm to society Accused may try to talk to witnesses, damage evidence or obstruct justice Bail process is very complicated, time-consuming and stressful Remand Does not uphold notion that the accused is innocent until proven guilty Exposure to jail – risk of reoffending Expensive Committal hearings Process is extremely complicated and expensive Can add to delays Can be stressful and inconvenient for many parties Could be considered unnecessary for stronger cases