Chapter 3Criminal trial process

In this chapter, you will study the process of a criminal trial. You will look at the criminal jurisdiction of NSW courts, the nature of the adversary system of trial, and the legal personnel in a criminal trial. You will also learn about pleas, legal representation, evidence, defences and the role of the jury.

There are many factors that determine which court has the proper jurisdiction to hear a case. These include:• whether it is a criminal matter or a civil matter• the case is being heard for the first time (original jurisdiction) or it involves an appeal (appellate jurisdiction)• the age of the accused (e.g. under 18 years old)• the seriousness and nature of the matter (e.g. summary, indictable or serious indictable offence)• the type of hearing (e.g. bail, committal, trial or sentencing).

Court jurisdiction: criminal courts

In NSW, the main courts that deal with criminal offences include:• lower courts

– Local Court and Children’s Court– the Coroner’s Court and the Land and Environment Court can also deal with some aspects of

criminal matters

• intermediate courts– District Court

• superior courts– Supreme Court (Trial Division) and Supreme Court (Court of Appeal)– in rare cases, the High Court of Australia can also hear appeals on points of law from the state

Supreme Court, if it grants special leave to appeal.

Court jurisdiction: criminal courts

Local Court:• the first point of call for most criminal matters in NSW• jurisdiction to deal with summary offences and indictable offences

triable summarily• limits on sentences it can impose• also conducts bail and committal proceedings• matters heard by a magistrate without a jury• cases usually processed faster with less expense.

Lower courts

Children’s Court:• specialised court dealing with criminal matters involving young

offenders (who were under 18 years old at the time of the alleged offence)

• also deals with civil and administrative matters concerning the care and protection of young children

• it is a closed court, with matters presided over by a magistrate with specialised training in children’s matters.

Lower courts (continued)

Coroner’s Court:• investigates the cause and manner of a person’s death, as well as

fires and explosions where property has been damaged or a person has been injured.

Land and Environment Court:• specialist court responsible for interpreting and enforcing

environmental law in NSW.

Lower courts (continued)

District Court:• a trial court where matters can be heard before a judge and a

jury

• can hear appeals of decisions made by the lower courts like the Local Court and the Children’s Court

• hears indictable offences, except for the most serious crimes like murder or treason

• processes are more formal than the Local Court.

Intermediate courts

Supreme Court:• hears the most serious criminal

cases

• sits in Sydney, with matters also heard in regional centres if the need arises

• hears the most serious criminal matters, like murder and manslaughter, or major conspiracy or drug-related charged.

Superior courts

Superior courts

Court of Criminal Appeal:

• branch of Supreme Court and the state’s highest court

• can hear appeals from the District Court or Supreme Court.

The High Court of Australia is the highest court in Australia.

Federal courts

High Court of Australia:

• mandated under section 71 of the Australian Constitution• original jurisdiction in limited Commonwealth matters • appellate jurisdiction to hear appeals from all state and

territory Supreme Courts• must grant special leave to appeal, and only does so in rare

cases.

Federal courts

• Australia’s criminal justice system is based on an adversary system of trial– this involves two opposing sides responsible for presenting their case to an impartial

court– the judge or jury hears the evidence presented by the parties and comes to a conclusion– common in common law countries like the UK, US, NZ, Canada.

• It is different from an inquisitorial system of trial– involves a judge who directs the case and calls for evidence– common in civil law countries like Japan, Indonesia, continental Europe and most of

South and Central America.

The adversary system

• Judiciary: judge or magistrate.

• Prosecution: police prosecutor or prosecutor of the Director of Public Prosecutions (DPP).

• Defence: barrister and solicitor.

Legal personnel in a criminal trial

• A plea is a formal statement of guilty or not guilty entered into by the accused.

• Plea bargaining involves negotiation between the defence and the prosecution about the charges against the accused.

• It might result in certain charges being withdrawn if the accused pleads guilty to others, or in a lesser sentence being imposed.

Pleas and charge negotiation

• Adequate access to justice is crucial to ensure the legal system functions fairly and equally for all parties who come before it.

• Not everyone has the finances or skill to seek proper legal representation.

• In Dietrich v the Queen the High Court recognised a limited right to legal representation in Australia.

• Legal Aid NSW provides legal assistance and representation to people who are socially and economically disadvantaged to ensure that they have equitable access before the law.

Legal representation and Legal Aid

• In criminal matters, the burden of proof rests with the prosecution to prove the case against the accused.

• The standard of proof is the level of proof required for a party to succeed in court.

• In criminal matters the standard of proof is beyond reasonable doubt.

• This requires prosecution to show there is no reasonable doubt that the accused committed the offence.

Burden and standard of proof

• Police will need to gather enough evidence to support a charge against the accused in court.

• The use of evidence in court is bound by the Evidence Act 1995 (NSW), which defines when evidence can be admissible.

Use of evidence, including witnesses

Different types of evidence include:• real evidence – including physical evidence and documentary evidence• witness testimony – can include ordinary witnesses and expert witnesses.

Use of evidence, including witnesses

• A defendant may have a legal defence available in order to defend a charge in court.

• There are complete defences, which result in the complete acquittal of the accused, or partial defences, which may result in the charge or sentence being reduced.

Defences to criminal charges

Depending on the nature of the offence, complete defences to a charge can include:• mental illness or insanity

• involuntary behaviour or automatism

• mistake

• self-defence or necessity

• duress

• consent.

Complete defences

There are some partial defences that relate specifically to the crime of murder, that can reduce murder to manslaughter:• provocation – the defendant claims that the victim’s actions caused them to lose self-control• provocation is a controversial defence and has been abolished in some jurisdictions• diminished responsibility – this defence is used when the accused is suffering from a mental impairment that they claim caused them to commit the crime.

Partial defences

• Juries are used to hear most indictable offences where a plea of ‘not guilty’ is entered, and may be used in either the District Court or the Supreme Court.

• A jury is a panel of citizens, selected at random from a jury list compiled from the electoral roll.

• The jury’s role is to reach a verdict on the guilt or innocence of the defendant based on the evidence presented to them at trial.

The role of juries

• Either party can challenge selection of a juror based on either a peremptory challenge or a challenge for cause.

• Australian citizens 18 years or over are eligible to sit on a jury once enrolled on the electoral roll.

• In NSW, majority verdicts have been permitted since 2006, allowing verdicts of eleven or ten to one where the court is satisfied that a unanimous verdict will not be reached.

The role of juries