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Criminal Trial Process Court jurisdiction: criminal courts
State lower courts Local Court The jurisdiction of the local court is to deal with minor criminal and summary offences, civil
matters with a value up to $100 000, limited family law matters such as property settlements and
residence orders for children. In indictable offences, committal hearings are held where the
magistrate listens to an outline of the evidence and determines if there is enough evidence
against the defendant to warrant a trial in a higher court. The local court hears appeals against
decisions of the RMS related to drivers licence. Cases are heard by a magistrate and no juries are
present. The court is open to the public.
- Deals with minor criminal issues and summary offences that have a penalty of no more
than 5 years (e.g. PCA, driving offences, common assault, breach of AVO)
- AVO - Apprehended Violence Order
- ADVO - Apprehended Domestic Violence Order
- APVO - Apprehended Personal Violence Order
- Magistrate hears and decides the matter (guilt or innocence) and sets punishment for
criminal offences
- Most criminal offences are heard in the local court
- Civil disputes encompassing a monetary value between $5,000 and $100,000
- Magistrate Court of ACT can decide civil matters up to $250,000
- Also hear bail hearings and for indictable matters.
Coroner's Court of NSW
A specialist court that ensures that all deaths, suspected deaths, fires and explosions are properly
investigated. Cases are heard by a magistrate called the Coroner.
The jurisdiction to investigate the circumstances of a fire or explosion requires the fire or
explosion to have occurred in NSW.
•The coronial jurisdiction is inquisitorial and the Coroner is principally concerned with finding
out what happened and how it might be prevented from happening again.
- Jurisdiction is investigate unexplained/suspicious/preventable phenomena (deaths,
suspected deaths, fires, explosions etc.).
- Do not prosecute offenders.
- Presided over by a magistrate and can subpoena any evidence that is needed.
- Subpoena: writ ordering a person/evidence to attend a court.
* “Coronial inquests” refer to public hearings conducted by a Coroner. It is useful for the
Coroner to make conclusions from the event and comment on it (for example, the Coroner might
make recommendations about changes to hospital procedures or to the design of equipment to
make it safer.)
The Children’s Court
The Children’s court deals with civil matters related to the care and protection of children and
young people. It deals with criminal cases involving persons under the age of 18 at the time of
the offence, or (in New South Wales) under the age of 21 when charged with a crime they
committed while under the age of 18.
•There are no juries in the Children's Court and the court is closed to the general public.
- Deals with civil matters relating to care, protection and custody of people under the age
of 18.
- Deals with criminal cases involving people under the age of 18.
- NSW Children’s Court deals with people under the age of 21 who committed more
serious crimes when they were under the age of 18.
- Closed court
Intermediate courts
District Court of NSW
It deals with more serious criminal matters including larceny, manslaughter, sexual assault and
large-scale drug importation as well as assaults, sexual assaults, robbery, breaking and entering,
fraud and forgery.
It deals with civil matters such as breach of contract, defamation and personal injury. The
District Court cannot deal with murder, treason and piracy. A judge and sometimes a jury will
hear cases tried in a district court. It has unlimited jurisdiction in claims for damages for personal
injuries arising out of a car accident and a limit of $750 000 or other civil cases. It has appellate
jurisdiction, which is the ability to hear appeals from a lower court and it is open to the public.
- Deals with criminal matters such as:
- Manslaughter
- Sexual assault
- Large-scale drug importation (supply drugs)
- Fraud offences (passing valueless cheques, forgery etc.)
- Property offences (robbery, breaking and entering, larceny)
- Headed by a judge and sometimes jury.
- Jury decide the facts (guilt or innocence) and the judge decides the sentence. If
the defendant wishes they can apply for a judge only trial (summary trial).
- Unlimited jurisdiction in claims for damages for injuries out of motor vehicle accidents
- Civil cases below $750,000
- Limit can be raised if agreed to by both parties wanting to decide case in District
Court
- In the District Court barristers for the prosecution (plaintiff) and defence present their
cases. In these courts they tend to rely upon expert evidence.
- Maintains “Appellate jurisdiction”
Superior courts
Supreme Court
The supreme court deals with more serious indictable matters and has criminal jurisdiction over
the most serious indictable offences such as murder and manslaughter, attempted murder,
kidnapping, drug related charges and breaches of corporation law. All criminal and civil cases
are heard before a judge and there is a presence of a jury in all criminal cases and some civil
cases depending on the circumstances. In civil matters, there is no upper limit to monetary
damages.
It hears matters on claims for damages for personal injury, breach of contract, professional
negligence, possession of land and defamation.
The supreme court also hears appeals from lower courts and cases can be appealed to High Court
with special permission. It is open to the public.
- Civil jurisdiction has no monetary limit (>$750,000)
- Deals with the most serious criminal offences such as:
- Murder, attempted murder
- Reckless indifference / intent to kill
- Manslaughter
- Terrorism
- Kidnapping
- Major conspiracy
- Drug-related charges
- Serious breaches of corporations law
- Deals with serious civil matters such as:
- Defamation
- Breaches of contract
- Professional negligence
- Usually just a judge will deal with civil matters
- Equity cases - these are cases where the common law will not provide a “just” decision.
- Headed by a judge and jury
- Maintains “Appellate jurisdiction”
Court of Criminal Appeals
The court of criminal appeals is the the State's highest court for criminal matters. A person who
has been convicted or who pleaded guilty and been sentenced by a Supreme Court or District
Court judge, may appeal to the Court of Criminal Appeal.
Appeals are generally heard by three judges, although five judges may sit when significant legal
issues need to be considered. If the judges do not agree, the majority view prevails. When
sentence appeals do not involve a dispute on any issue of legal principle, only two judges need to
sit. To appeal to the High Court from the Court of Criminal Appeal, an applicant must first
obtain special permission from the High Court.
Court of Appeal (within the Supreme Court)
- Highest court of appeal in each state for civil and criminal
- Commonly, appeals are heard by three judges. If judges cannot agree, majority prevails.
Equity Division
- Hears equity, probate, commercial, admiralty and protective matters.
Court of Criminal Appeal
- The Court of Criminal Appeal is the State's highest court for criminal matters. A person
who has been convicted or who pleaded guilty and been sentenced by a Supreme Court or
District Court judge, may appeal to the Court of Criminal Appeal. Appeals may also be
brought from decisions of the Land and Environment Court in its criminal jurisdiction.
- Errors of law can be overturned (legislation applied incorrectly)
- They can also for more evidence if they feel the evidence is not enough to convict.
Land and Environment Court
A specialist court responsible for interpreting and enforcing environmental law in NSW
It has a wide jurisdiction and deals with matters related to environmental planning (e.g. zoning of
park lands), environmental offences (e.g. illegal polluting or dumping) and appeals against local
council rulings
- Land use disputes. Most of its work involves businesses and local government although
individuals can take action in this court.
- Interprets and enforces environmental law including:
- Environmental planning (zoning of parklands)
- Environmental offences (illegal dumping/pollution)
- Appeals to local council rulings
Federal Courts
The hierarchy court is split into three general levels: - High Court - Federal Court & Family Court - Federal Circuit Court (formerly Federal Magistrate’s Court)
Note that although the High Court is at the top of the hierarchy of federal courts, it is also the top of the hierarchy of the state courts as decisions from the Supreme Court may be appealed to the High Court if special permission is granted by the High Court.
The Federal Circuit Court The Federal Circuit Court is established by the Commonwealth Parliament and the Federal
Circuit Court of Australia Act 1999. It was established to relieve caseload of the Federal and
Family Courts and reduce the cost and time required to deal with more minor federal matters.
The jurisdiction includes family law and child support, administrative law, bankruptcy, human
rights, consumer protection and trade practices, privacy, migration, copyright, and industrial law.
It does not deal with criminal matters and consists of a Chief Judge and other judges. It shares its
original jurisdiction with the Family Court and Federal Court; matters can be transferred between
these courts depending on the complexity of legal issues.It deals with over 90 percent of
migration and bankruptcy applications.
Established by the Commonwealth Parliament towards the end of 1999 as the Federal
Magistrates Court. It was renamed to Federal Circuit Court in 2013.
- No criminal matters, mainly uncontested matters of Family and Federal Court
- Deals with:
- Family law and child support (uncontested), Administrative law, Bankruptcy,
Human rights, Consumer protection and trade services, Migration, Copyright and
industrial law
- Presided over by a judge it has its own appeals division (called the Full Bench) that has 3
judges hearing the appeal.
*The Federal Circuit Court of Australia, The Family Court of Australia and The Federal Court
of Australia share the same original jurisdiction and thus matters can be transferred between
these courts.
The Federal Court of Australia
The Federal Court is established by an Act of Parliament in 1976. The Court’s jurisdiction covers
almost all civil matters (except for family law matters) and some summary and indictable
criminal matters. It hears appeals from decisions of single judges of the Court and from the
Federal Circuit Court in non-family law matters. The court consists of a Chief Justice and other
judges as appointed. The Chief Justice is the senior judge of the Court and is responsible for
managing the business of the Court.
- Established by an Act of Parliament in 1976
- Deals with:
- Civil disputes governed by federal law (excluding family law)
- Some summary criminal offences
- Equal to Family Court of Australia and superior to the Federal Magistrates Court in the
hierarchy.
The Family Court of Australia
It is a superior federal court that deals with the most complex family law matters. It was
established by the Australian Parliament in 1975 and the main function is to rule on cases related
to specialised areas in family law, such as divorce, parenting orders, the division of property and
spousal maintenance. In its appellate jurisdiction, it can hear appeals from a decision of a single
magistrate or a federal Family Court judge.
- Established by the Australian Parliament in 1975
- Family Law Act
- Main function:
- Deal with cases related to specialised areas in family law such as:
- Divorce
- Parenting orders
- Division of property
- Spousal maintenance
- Jurisdiction extends to the dissolution of marriage, the welfare of children and the issue
of domestic violence.
- Contested matters.
- Maintains appellate jurisdiction that extends to appeals from a decision made by a federal
magistrate or a single Family Court judge
High Court
The highest court in the Australian judicial system which was established in 1901 under section
71 of the Australian Constitution. The High Court deals with appeals from the Federal Court of
Australia, the Family Court of Australia, and the highest state and territory courts. It also deals
with cases concerning the interpretation of the Australian Constitution and the constitutional
validity of law. The subject matter of the cases heard by the Court traverses the whole range of
Australian law. It includes arbitration, contract, company law, copyright, criminal law and
procedure, tax law, insurance, personal injury, property law, family law, trade practices etc.
- 2 main functions:
- Constitutional interpretation
- Appellate jurisdiction from Federal Courts and State Supreme Courts
- Established in 1901 under section 71 of the Australian Constitution.
- Consists of 7 judges - drawn from the States and territories. Significant constitutional
interpretations have been:
- In its appellate jurisdiction the High Court must give leave to appeal. This means that the
court hears an appeal based on:
- A legal definition or question must be resolved
- A miscarriage of justice
- An injustice has occurred (e.g. Dietrich v R 1992),
- Deals with:
- By special leave (granted permission), appeals from Federal, State and Territory
Courts
- Interpretation and application of law in regards to cases of federal significance
such as:
- Challenges to constitutional validity of laws
The adversary system
Adversary system- a system of law where to opposing sides present their cases to an impartial judge or jury. The adversary system relies on a two-sided structure of opposing sides, each presenting its own position, with an impartial judge or jury hearing each side and determining the truth in the case. Two sides try to prove their version of the facts and disprove the other side. Inquisitorial system - a system of law where two sides present their cases to a judge who directs the cases and can call for particular evidence. In an inquisitorial system of trial the magistrate of judge collects the evidence from both sides in cooperation with the prosecution after inquiries have been made. Some features of an adversarial system of trial make it different to an inquisitorial system. These include:
- There are strict rules of evidence, such as those involving hearsay and opinion - There is a presumption of innocence - Witnesses are examined orally and can only answer the questions asked - The past record of the accused may only be examined during sentencing
There however some problems with the adversarial system, such as: - Due to the high standard of proof required and the rules of evidence, there might be a
smaller chance to discover the truth - It was developed for juries, which are infrequently used today, causing systematic
inconsistencies - Oral examination of witnesses, and allowing them to respond only to questions asked,
may prevent the full truth being known. Valuable information may never come to light. - The skill of barristers and solicitors may differ; therefore the person with the better
lawyer could be advantaged - Witnesses, though they may be truthful, can give a bad impression, so they may be
disbelieved - The past record of the accused is generally only admissible during sentencing, not during
the trial process itself. However, it has served common law countries really well as it achieves justice because the judge ensures both sides of the case follow the rules of evidence to ensure a just outcome.
Legal personnel in a criminal trial
Magistrate - decides cases in local courts (ensure trial is conducted legally and is fair, decide on
questions that arise about law, impose punishment for guilty verdicts). Specialised magistrates
also hear cases in the Children’s Court. In criminal law, magistrates will hear summary
proceedings in the Local Court, as well as indictable offences triable summarily where the
accused has consented to the case being heard by a magistrate.
Judge
A judicial officer that decides cases in higher courts ie. District or Supreme court (ensure trial is
conducted legally and is fair, decide on questions that arise about law, impose punishment for
guilty verdicts). They oversee proceedings, maintain order in the courtroom and ensure court
proceedings are followed. They will make decisions about points of law and give instructions to
the jury to make sure they understand the proceedings and evidence presented to them.
Police prosecutor
A NSW Police Force officer trained in prosecution, usually used to prosecute summary offences.
A specially trained officer who usually prosecutes a case in the local court (examine witnesses,
presents evidence and proves alleged offender guilty). Police must undertake an intensive and
exhaustive investigation of the matter and gather all the evidence and information that will be
used at trial to form the case against the accused. Police prosecutors are members of the NSW
Police Force with specialised legal training to conduct prosecutions. They prosecute summary
offences in the Local Court and Children’s Court, and they handle most summary cases in New
South Wales. Most serious offences are dealt with by the public prosecutors.
Director of Public Prosecution (DPP)
The holder of a government office responsible for prosecuting indictable offences heard
summarily or in front of a jury
Public prosecutor - a legal practitioner employed by the DPP, usually used to prosecute
indictable offences.
It is an independent authority that prosecutes all serious offences on behalf of the NSW
government. Prosecutors employed by the DPP are barristers or solicitors and have numerous
years of experience in the criminal justice system. It is their job to prosecute the case using
evidence gathered by the police. The DPP does not investigate crime - that is the responsibility
of the NSW Police Force - but it prosecutes cases once sufficient evidence has been gathered.
Public Defenders - legal practitioners appointed by NSW government to represent accused
people in District or Supreme Court (only available to those granted legal aid)
Pleas and charge negotiation
- At the start of a trial, an accused is asked how they plead. This is undertaken during an arraignment or case conferencing. They have three options:
- Guilty: a plea of guilty means that the case will be dealt with quickly. As there is now no question about the accused’s guilt, the matter goes straight to sentencing.
- Not guilty: a plea of not guilty means that the guilt of the accused is not assured. Therefore, the case must go to trial and the prosecution is left to convince the jury of the accused’s guilt, while the defence argues that the accused did not commit the crime.
- Silence: (this is taken to be a plea of not guilty). Charge Negotiation Charge negotiation refers to the negotiation of charges between the defence and the prosecution. A plea bargain is used to get the accused to plead guilty to an offence. There are three common ways in which this is done.
- If the accused is facing several charges in relation to the same crime, the prosecution may drop some charges if the defendant agrees to plead guilty to the remaining charges.
- Judges may sometimes give an indication of what a likely verdict will be and this then prompts defendants to plead guilty.
- The charge may be reduced to a lesser charge if the accused pleads guilty, for example from murder to manslaughter.
Advantages Disadvantages
Decreases costs that can be incurred in a lengthy trial as well as time delays that can arise from potential multiple trials and hearings.
Prosecutors can threaten more serious charges to intimidate the accused into pleading guilty to the lesser charge. An accused may plead guilty to a crime of which they are innocent, to avoid the stress and hassle of a trial.
Increases the rate of criminal convictions and still guarantees a conviction.
Some crimes may go unpunished or the admitted crime may be insufficiently punished.
It is easier for the accused to plead guilty if they have committed the crime and is willing to accept the penalty.
It may lead to bullying or manipulation of the accused to forfeit their right to a trial.
A quicker way to achieve justice for the victim without the lengthy process.
Reducing the charges means that there is no consideration of the victim.
PLEA CHARGES happen during arraignments. Example Case: R v Choi Tang Murder of David Laxale
- Showcases weakness of plea, charge negotiations - Role of DPP in the case that led to the outcome
Implications of Charge Negotiation The accused
- Puts pressure on accused to plead guilty to something they might not be found guilty of in court proceedings, potentially hindering probability of justice
- Might get a lighter sentence that they deserve - May plead guilty to a lesser charge because they can’t afford the cost of defending the
serious charge The victim
- Saves victim from ordeal of giving evidence and being cross-examined - Lighter sentence for accused may mean the victim of the crime feels that offender was
not punished sufficiently The community
- Saves witnesses in community fro ordeal of giving evidence and being cross-examined
- Efficient, quick, inexpensive, because there is no court hearing, except for a sentencing hearing
- Efficiency saves community from unnecessary expenses - Lighter sentence may mean that the accused will be more likely to reoffend, thus a
potential danger to community - It is a secretive process that prevents the court system being seen by the community to
operate to achieve justice
Legal representation and Legal Aid NSW - An accused person in Australia has no automatic right to legal representation - However, it is widely recognised that an accused person without legal representation is
unlikely to receive a fair trial in criminal law. Dietrich v The Queen (1992) - The Legal Aid Commission (LAC) was established in 1979 under the Legal Aid
Commission Act 1979 (NSW) to ensure that people unable to afford legal representation have access to a lawyer.
- Legal Aid NSW is largely funded by the Commonwealth and New South Wales Governments and the NSW Law Society, but funding is limited.
Dietrich v the Queen (1992) 177 CLR 292
Dietrich was charged with several drug offences but was refused legal aid unless he pleaded guilty.
During the trial, where he defended himself, he complained that he did not understand the court process.
Dietrich was found guilty and appealed it to the High Court. The High Court found that a judge should
refuse to hear a case where a poor person has been accused of serious crime and been refused legal aid if
injustice is likely to occur.
Criteria for Legal Aid
- Means test- applier must show that their disposable income is less than a specified amount
- Merit test- must have a good chance of winning their case. Only applied in criminal appeals and Supreme Court bail applications
- Jurisdiction test- only being granted for certain types of legal matters
Burden and standard of proof Burden of proof- in criminal matters, the responsibility of the prosecution to prove the case against the accused.
Standard of proof- the level of proof required for a party to succeed in court. The prosecution must prove the case beyond reasonable doubt. Prosecution will often bring a case to trial if they believe there is enough evidence to prove the guilt of the accused to the jury.
Use of evidence, including witnesses The use of evidence in a court case is bound by the Evidence Act 1995 (NSW). For evidence to be admissible in court it needs to be relevant to the case and legally obtained by the investigating police. Evidence that the police have obtained illegally is generally inadmissible. The different forms of evidence are witness testimony, real evidence, tape recordings, photographs, and documents from the crime scene. Evidence in chief: The first party to ask questions is usually the person who asked the witness to attend. Cross-examination: The witness is asked a series of questions from defence and prosecution to test the evidence. Subpoena: Given to witness to come to court and give evidence. Anyone who witnessed a crime or was interviewed by police may be subpoenaed to appear later in court. The witness will be cross examined by both sides of the adversary system. There are rules around the order and type of questions that a witness can be asked. The information the prosecution and the defence seek is about the witness’ factual first-hand knowledge or eyewitness testimony, and will often be supported by an earlier statement made by the witness and recorded. Witnesses must answer questions truthfully; if not, they may be guilty of perjury, which is telling an untruth to a court.
An expert witness may be called who is qualified in a specific area (DNA testing, mental health doctor etc).
Defences to criminal charges
Complete defences - if proven, charges are dropped, or there is an acquittal
Partial defences to murder (reduce murder to manslaughter)
Mental illness (‘insanity’) - M’Naghten’s Case (1843)
Infanticide s22A of Crimes Act
Self-defence - R v Marwey (1977) - R v McInnes (1971)
Provocation s23 of Crimes Act - R v Singel (1990) - R v Camplin (1978)
Necessity - R v Dudley and Stephens (1884)
Substantial impairment by abnormality of mind (aka ‘diminished responsibility’ or ‘substantial impairment of responsibility’) s23A of Crimes Act
- R v Falconer (1990) - BWS
Consent - S61HA of Crimes Act - R v Brown (1994) HL
Automatism - R v Karen Brown 2006
Honest mistake of act (only for some strict liability offences
Accident
Claim of right (property offences)
Majority of defences revolve around the mens rea of the offence; that the accused could not have had the level of intention required for the offence.
Mental illness/Insanity Mental incapacitation at the time of the act, meaning the accused cannot have formed the mens
rea at the time of the offence. A defence only available if the defendant can prove that, when the crime was committed, they were of unsound mind - that is, suffering from a mental illness which either prevented them from knowing what the criminal action they committed was, or from knowing that it was wrong). It challenges the mens rea of the crime, that the necessary intent was missing. The defendant might have be admitted to a mental hospital for an indefinite period.
R v Porter (1936) 55 CLR 182
Porter was caring for his 11 month old son, and suffering from depression and sleeplessness. To reconcile
with his wife, he travelled from Canberra to Sydney, threatening to kill himself and his son. His wife
contacted police, who found Porter at home crying. The baby was dead and Porter was about to kill
himself; Porter was charged with murder. The jury found that he poisoned his son with intention, but did
not appreciate the wrongness of his action, because he was suffering from mental illness, and thus, Porter
was found not guilty on grounds of mental illness.
Achieves justice because it doesn’t place responsibility on someone for doing something they couldn’t understand was wrong. The test to prove mental illness is rigorous, and thus eliminates those who don’t understand what they’re doing without suffering from a mental illness. The community is also protected if the defence is successful, as the defendant is placed in a mental institution .
Self-defence
The defendant acted in defence of self, another, or property; only accepted in limited circumstances and only for reasonable force.
Crimes Act 1900 -s419 - Self-defence- onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the
onus of proving, beyond a reasonable doubt, that the person did not carry out the conduct in self-defence.
Risky because consideration of reasonable force by defendant and jury might be different. The force used must be proportional to the perceived threat and cannot be vengeful.
Zecevic v DPP (1987) 162 CLR 645
Zecevic had an argument with his neighbour, returned to his flat, got a gun and shot his neighbour. He
claimed self-defence, explaining that the neighbour was moving towards his car, where the accused
believed he kept a gun, when Zecevic shot him. The trial judge said the jury could not consider the
defence of self-defence because of unreasonable force.
Self-defence achieves justice because the High Court ruling constrains its use parameters of uses of reasonable force. Balances right of victim → through reasonable force, right of offender → people should be able to protect themselves from harm, right of society → preserves values. However, it can be very subjective with regards to what constitutes reasonable force. Necessity The defendant claims that the act or omission committed was necessary to avert serious danger.
The action taken must be in proportion to the danger that the defendant was trying to avert.
R v Dudley and Stephens (1884)
A group of men were adrift on a boat for 20 days with no prospect of rescue and a shortage of food. In
order to survive, they killed a boy close to his death and ate his flesh. The court found that the men would
have died had they not eaten the boy, and that the boy would have died anyways, but they ruled that
necessity did not apply for murder and hence convicted the defendants.
This defence does not deny actus reus or mens reus.
Necessity achieves justice since it is not available for murder (could be a downside, since there can be circumstances that necessitate actions leading up to murder) and the testing process is rigorous and in proportion, however this is also very subjective and circumstantial. Duress The defendant commits the act knowing that it was wrongful, but did so under unlawful pressure
applied to them into doing something against their will. The defence of duress does not deny mens rea or actus reus. It can be a complete or partial defence, and both duress and necessity are defences of compulsion. Threats to the accused’s family are as relevant to the defence of duress as threats to the defendant themselves. The threats need to be sufficient to cause an ordinary person of those circumstances to commit the crime. These last two sentences were established in the case below:
R v George Palazoff (1986) 23 ACrimR 86
Palazoff was cultivating marijuana for trading purposes, but claimed he was acting under duress because
another man, who had leased the glasshouses where the hemp was grown, threatened his family if he
objected, backing up the threat with a pistol shot to Palazoff’s feet. The judge at the trial found that
Palazoff was guilty, but he appealed, claiming that the trial judge didn’t direct the jury properly regarding
the defence of duress. The South Australian Court of Criminal Appeal found that the trial judge erred in
explaining the defence to the jury; the court upheld the appeal, quashed the conviction and ordered a new
trial.
Effective in achieving justice as it recognises different circumstances and pressure that can be applied to the accused, but the amount of reasonable pressure/threats applied is very subjective and can lead to inconsistencies in judicial decisions. Automatism
An act that cannot be controlled or is not voluntary, such as an epileptic fit. People who are unable to control their actions cannot be liable for a crime, unless they know there is a high risk/harm and continue regardless.
R v Karen Brown (2006)
Brown, a security guard, was beaten in the head and dragged along the ground by a robber. While reeling
from the attack with blood running down on her face, Brown walked to the victim’s car and shot him
dead. She had no recollection of her actions and suffered a 2-month concussion. In court, she was
completely acquitted of both murder and manslaughter charges because she applied automatism, since she
argued that was not in control of her actions due to the brain injury.
Achieves justice in recognising diminished capabilities such as epileptic fits, but can me abused and misused. As demonstrated in the case above, it can be very subjective, ambiguous, and chain of causation between brain injury and shooting someone is a massive ‘excuse me what the hell’. Lawful correction of a minor Section 61AA (1) and (2) of the Crimes Act (1900) allows for a child to be lawfully beaten beneath their neck to correct their behaviour, but there are limits to how much force can be used. Archaic and doesn’t achieve justice for contemporary society since values have changed. Migration might see this being more relevant, however, the legislation is extremely vague in its diction. Honest mistake of fact This defence can be applied to some strict liability offences only - such as if there is a change in speeding zones that has not been alerted or for drink driving offences. Consent
The defendant claims that they acted with the victim’s consent. It argues that there is no mens rea, and is often applied for sexual assault cases Section 61 of the Crimes Act (1900) outlines what entails sexual assault - there is an absence of consent from the victim, the accused is aware that there is no consent or was reckless to it. Consent must be ‘freely and voluntarily’ given.
R v Mueller (2005) NSWCCA 47
Mueller was a caretaker at a home for people with disabilities, and sexually assaulted a patient suffering
from Asperger’s syndrome. The accused admitted to some of these actions but claimed that the victim
consented. The NSW Court of Criminal Appeal held that the victim did not consent, claiming that silence
or absence of positive resistance to unaware sexual advances is not consent.
It allows people to consent to acts which may, in non-consensual circumstances, be illegal (e.g. intercourse, surgery). It also outlines that consent must be given explicitly and not obtained by force, and hence, achieves justice. Partial Defences These are termed such because their successful will generally reduce the liability of the defendant from murder to manslaughter, but does not completely free them of all liability. Provocation The defendant claims that their actions were a direct result of the victim’s actions, which caused
them to lose control and commit the relevant offence. It has been abolished as a defence in Victoria, Western Australia, and Tasmania, but still exists in NSW. For it to succeed, the accused must be able to prove that the victim caused the accused to act in a way any ordinary person would have acted. It is outlined in Section 23 of the Crimes Act.
The Queen v Damian Karl Sebo (2007) Supreme court of QLD
Damian Sebo admitted to killing his girlfriend but claims he was provoked by her bragging about
cheating on him with other men. The jury accepted that Sebo was sufficiently provoked by his girlfriend
to find him guilty of manslaughter not murder, receiving 10 years imprisonment.
DPP v Camplin (1978)
A 16-year old boy was violently raped by an older man and then provoked him by suggesting it was fun
and that they do it again. This incensed the distraught boy who then killed the man with a frying pan. His
defence for provocation was successful and his charge was reduced to manslaughter.
It is controversial because it implies that the victim has some level of responsibility for the criminal act that occurred. BWS (Battered Woman Syndrome)
- May arise when a woman kills her husband after years of suffering domestic violence - It is used in conjunction with other defences to assist them - not used by itself - Can lead to mitigation of the sentence or no prosecution
Abuse excuse - Recognised in NSW for violent crimes - Can result in acquittal, where defendants argued that they had suffered or were protecting
those who had suffered, from child abuse The Homosexual Advance Defence
- Defendant of a murder case claims they driven to murder due to unwelcome homosexual advances
- Recognised in several cases since 1993 and generally resulted in acquittal or reduction to manslaughter
- Both a complete and partial defence Positives - only provable is provocation is sufficient. In most cases, it doesn’t completely exonerate the offender. BWS allows for more specific circumstances taken into account and is a better deterrent for domestic violence. Negatives - homosexual advances do not constitute sufficient provocation- also discriminatory. BWS and abuse excuse has potential of allowing people to take the law into their own hands. Also, gender-specific diction for BWS. Diminished responsibility - substantial impairment of responsibility This defence claims that the accused person was not completely in control of their actions when
they committed the murder. The defendant must be able to prove that they suffer from an abnormality of mind that impaired their mental responsibility or that this was caused by disease/injury. Examples include a low IQ (just like you) and mental retardation. It’s used more widely than the insanity plea because it is easier to prove, and the person may be completely normal in every other aspect of health. It is outlines in Section 23A of the Crimes Act (1900), and does not take into account intoxication when determining liability (unless for prescribed medication).
Chayna v The Queen (1993) 66 ACrimR 178
Chayne killed her two daughters and her sister-in-law. The defence claimed substantial impairment of
responsibility, and conflicting evidence from seven psychiatrists was given as to hayna’s mental state at
the time of the killings. The trial judge summed up to the jury on the bases of evidence of only the last
psychiatrist, who supported a finding orf murder, and hence, the jury returned a verdict of murder. The
case was appealed in the NSW Court of Criminal Appeal, which substituted a verdict of manslaughter,
saying that the trial judge had wrongly summed up to the jury only based on one doctor, rather than all.
It achieves justice since people who aren’t fully responsible aren’t held fully responsible. It does not excuse intoxication as an excuse, and is only a partial defence. Even when successful, the community is protected from further harm since the acquitted is often placed in a mental institution.
The role of juries, including verdicts
- A jury is a panel of citizens, selected at random from a list compiled from the electoral roll, whose job it is to determine the guilt or innocence of the accused based on the evidence presented to the at trial. Their decision is called a verdict. It is a task that brings with it enormous responsibility. In most cases, a criminal trial involves a jury of 12 people.
- Role of juries, being a central part of the adversary system, is to hear most indictable offences and deliver a verdict under the Jury Act 1977 (NSW).
- Jury Amendment (Verdict) Act 2006 NSW allowed for majority verdicts. In NSW majority verdicts of 11:1 or 10:1 were allowed, after a reasonable time for deliberation (not less than eight hours) and where the Court is satisfied that is unlikely the jury will reach a unanimous verdict.
- Challenging Jurors
- Both the prosecution and the defence have the right to challenge either the selection of the entire panel of jurors, or individual jurors.
- Both sides can also exercise a certain number of peremptory challenges where they disqualify individual jurors without having to give a reason.
- Challenges for cause are based on the person not being qualified to serve on a jury- through being ineligible or disqualified, or because of being suspected of bias.
Eligibility of Jury Duty - Must be over 18 and on the electoral roll.
Some people can ask to be exempted-
- Those who are aged over 65 years
- Pregnant or care for children full-time. There are also some groups of people who are ineligible to sit on a jury. They include:
- People who do not speak English; emergency services workers (police, fire and ambulance)
- Convicted criminals - Members of the legal profession
For Majority Verdict Against Majority Verdict
Removing unreasonable jurors in the process Disagreements are rare
Avoid time delays and cost Discounting the possibility of finding a reasonable doubt decision
Saving the victim from a retrial May persuade the jury from the beginning that they only need to get an 11 court
Judge trials without Jury
- In 1990 following a recommendation from the NSW Law Reform Commission, the Criminal Procedure Act 1986 was amended to permit an accused to elect to be tried by a judge without a jury. This is an example of Law Reform.
Jury Act 1977 (NSW) Issues
- Hung jury - Mistrials- jury influencing, case/trial.
Amendment in The Jury Act (2006) Addition of 11-1, and 10-1, Issues with Jury Trials The jury system is said to be an application of the rule of law because it allows for a person to be judged by their peers. It also allows public access to courts for their participation in the dispensation of justice.
Due to the rising presence and availability of information/media, along with jurors no longer put up in hotels for the trial duration, jurors can access information about the case which can affect their judgement. Trial by media- the media can shape the public perception of a trial which can lead to prejudice. Complexity of evidence and use of expert witnesses - which can be misunderstood, distracting, and confusing to jurors. Concentration - jurors might lose concentration in the trial. Jury conducting researching of facts - sometimes, juries take it upon themselves to clarify the facts by potentially tampering with crime scenes or talking to individuals involved in either side of a trial outside of a court setting.
