Alice Paige s5191169 Court Report PDF

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Par tOne( 15mar ks ) 1.

What does the prosecution need to prove in the courtroom for a person to be convicted of a criminal offence? (2 marks) The prosecution needs to prove that an individual is guilty beyond all reasonable doubt for an accused to be convicted. This also includes the prosecution proving whether the crime was committed with intent or negligence, also known as Mens Rea and Actus Reus. And if there was intent behind the crime, or whether it was committed as a reflex (Burdon of Proof, 2010).

2.

What are the differences between summary and indictable offences? (3 marks) According to Section 3 of the Criminal Procedure Act 1986 (NSW), and indictable offence is one that may be prosecuted on an indictment. This is also known as a formal document that the prosecution files. This document is a brief description of the charges facing the accused. Also, under Section 3 of the Criminal Procedure Act 1986 (NSW), a summary offence is one that cannot be an indictable offence. Indictable offences typically occur with a more severe penalty, presented in a higher court in front of a jury (Holmes, 2012). And summary offences are held in a local court without a jury and will hold a sentence of two years or less (Nedim, 2013). Furthermore, it is also stated that the line between the two offences may not always be obvious, but as a rule, a summary offence is less serious (Shrubb, 2016). For example, a summary offence may include crimes such as traffic offences, drug possession, and theft. Whereas an indictable offence includes more serious crimes such as homicide, sexual assault, or physical assault (Nedim, 2013).

3.

What is a legal ‘defence’? Describe two common defences in criminal law. (3 marks) A legal defence is an attorney representing an accused individual, with the representation arguing against the prosecution (Gerald, 2005). The attorney may refer to a defence in order to assist their argument, such as self-defence, or duress.

Self-defence is found under the Crimes Act 1900 (Australian Criminal Lawyers, 2015) and is a form of defence used to state that at the time of the offence being committed, the prosecuted used means to protect themselves as a necessary act in response to the actions against them (Australian Criminal Lawyers, 2015). For example, a woman involved in a domestic violence situation killed her husband in self-defence during an attack.

Duress is where a person has committed a crime because of threats and the crime committed was an act in order to protect themselves, or the party being threatened (Australian Criminal Law Group, 2019). According to the Judicial Commission of New South Wales, duress is made of three elements. Firstly, the actions were performed because of threats of death or serious injury to either themselves or a member of their family. That the threats are of such a nature that a person forced the person to act as they did. And thirdly, was the accused able to render the threat ineffective, for example by contacting police (2018)

4.

Explain the different courts that exist in your State or Territory’s criminal court hierarchy. (3 marks) In Tasmania, there are only two levels within the court structure. The Magistrates Court, and the Supreme Court. Above that, Tasmania also is a part of the Australian judicial system, and therefore also includes the

Federal Courts. These are the Family Court of Australia, the Federal Magistrates Court, the Federal Court of Australia, and the High Court (Courts Tasmania, 2019).

The Magistrates Court is part of the judicial arm of government and has fifteen magistrates throughout the state. The Chief Magistrate, the Deputy Chief Magistrate, and Magistrates are formally appointed by the Governor of Tasmania (Magistrates Court of Tasmania, 2020).

The Supreme Court in Tasmania has unlimited jurisdiction in civil matters under Tasmanian law (Supreme Court of Tasmania, 2020). The Supreme Court also has jurisdiction to deal with criminal matters and some civil matters arising under federal law. This, however, is not exclusive. In Tasmania, the Supreme Court acts as the appeals court, and consists of the Chief Justice, five judges appointed by the Governor, and the Executive Council (Hobart Community Legal Service, 2019).

5.

Briefly describe the following court hearings. What is the main purpose of each? (4 marks) a. Summary hearing A summary hearing is handled in lower courts and is when evidence is presented and a final decision is made in front of a judge or magistrate with no jury (Commonwealth Director of Public Prosecutions [CDPP], 2020). According to the Judicial College, a summary hearing consists of entering a plea, opening addresses, conduct of both defence and prosecution cases, opening and evidence from the defence, closing address, and finally verdict and reasoning (2014). Here, the nature of the case is determined by the magistrate, as to whether the accused will be convicted, dismissed, or some other order will be made for the accused (Anderson Boemi Lawyers, n.d.).

b. Committal hearing A committal hearing is when the offence must be dealt with by a higher court, such as the Supreme Court. The accused must be committed to that higher court first by a magistrate, where the prosecution case is considered, and an assessment is made as to whether evidence is sufficient for trial (Magistrates Court of Victoria, 2019). According to Fernanda Dahlstrom (2018), the purpose of a committal hearing is to prevent serious criminal prosecutions from being initiated indiscriminately. In Victoria, a committal hearing must be held when the accused is charged with an indictable offence, unless the charge is heard in summary at the Magistrates Court, or where a direct indictment is filed. c. Jury trial A jury is a collection of twelve people from within the general public who will ultimately decide whether the accused is guilty (Federal Court of Australia, 2019). A judge still presides over the trial and will assist the jury where required as well as make rulings on legal issues (Fricke, 1997). d. Sentencing hearing According to the District Court of New South Wales, a sentencing hearing is held if or when the accused has plead guilty (2018). This hearing is presented in front of only the judge, and the prosecuted and defence state their wishes for the sentence. It may also be referred to as a plea in mitigation or plea hearing (County Court Victoria, 2019). During this hearing, the facts of the case, the offender’s circumstances, sentencing principles, and sentencing examples are provided. During this time, a Victim Impact Statement may also be heard (County Court Victoria, 2019).

Par tTwo( 2 5mar ks ) 6.

Which court did you attend, and what kind of hearing did you observe? (2 marks)

I observed a video of a mock jury hearing.

7.

What were the charges against the defendant? Were these summary or indictable offences? How did you know this? (3 marks) The accused was charged with participating in a conspiracy to commit a terrorist offence. These offences were indictable, as stated by Hilmes (2012), this is the type of offence usually considered more serious and presented in front of a jury. Furthermore, summary offences consist of a two year or less sentence if the accused is convicted (Nedim, 2013), where in this case, the accused was likely facing a longer sentence

8.

Identify who was present in the courtroom and describe the role you observed them perform. (4 marks) The courtroom consisted of the judge, the prosecutor, council for the accused, the accused, and the jury. Throughout the case, witnesses were also called to the stand who presented statements for both the prosecution and the defence. The judge oversaw the trial and assisted the jury with definitions and clarification of information. The prosecution acted on behalf of the crown in the case against the accused. The council for the accused argued a case as to why the defendant was not guilty. The jury listened to and considered all facts of the case in order to create a verdict.

9.

Briefly describe the physical layout of the courtroom. How did this reinforce the role and status of the judge, jury, lawyers and/or accused? (4 marks) The judge is positioned at the head of the room, overlooking everyone in attendance. This is a position of power and reinforces the status of the judge within the court. Down a level, and to his right, was the witness stand. Down, and to his left, sat the court reporter who would record everything within the courtroom. This is another position of power, as the

court recorder responds directly to the judge. On the floor to the right of the judge is the prosecution. And on the floor to the left, is the council for the accused. During this recording, the accused was presented in different ways, including in a separate glass room, on a defendant stand to the right of the council, and on the same table as the council. The defendant is always kept opposite side of the room to the jury. The jury sit on the side of the room, to the right of the judge. From here, they can see all people within the room, to ensure they have a vantage point of view,

10.

Describe the courtroom procedures that took place, including the giving of evidence and arguments. Were these easy to follow? Why/why not? (4 marks) The clip was edited so that not all moments within the courtroom are observed, so I cannot confidently say all court procedures were followed. Upon first viewing, it was not easy to follow due to the cut and change editing of the video clip. Upon the judge entering the courtroom, all people inside are asked to stand. This is a mark of respect and acknowledges the judge’s powers over the courtroom. The members of the courtroom are introduced, and then the clip cuts to the defence questioning a witness. The remainder of the video cuts and changes between the defence and prosecution speaking with different witnesses, both to receive statements and ask further questions.

11.

What was the most interesting thing you observed during your visit? (2 marks) Human behavior has always been something I have found intriguing. In this video clip, I found it incredibly interesting observing the accused and their behavior. He seemed nervous and would fidget with his clothing or hands a lot. If given the opportunity to physically view a case in the future, I again would find the behavior of the accused the most fascinating. Whether or not they show any remorse or guilt, or in some cases where the accused shows no emotion, or even an insensitivity to

those affected by the crimes.

12.

Define the concepts of due process and the rule of law. Discuss the extent to which these concepts were upheld or undermined in the courtroom you visited. (6 marks) Due process means to ensure a fair trial (Parliament of Australia, 2019). Any individual who is charged with an offence must know of their charges and have opportunities to seek legal representation and/or a trial by jury. According to the Liberty of Subject Act 134, it is stated that “none shall be condemned without due process of law”. Furthermore, the Observance of Due Process of Law Act 1368 states that “none shall be put to answer without due processes of law.” (Parliament of Australia, 2019). The rights held by due process include the presumption of innocence, right to silence, the right to confront accusers, open courts, no effective punishment without conviction, and proportionate rather than mandated sentencing (Gray, 2016).

The rule of law in Australia outlines that all within the country should be ruled (Rule of Law Education, 2019). It states that a punishment cannot be subjected unless the accused if found guilty of a breach of law. In Australia, the law must be abided by regardless of the position of power one holds (Rule of Law Education, 2019). The concepts of the law is viewed through the separation of powers, and maintained by representatives in power placed through democratic election. This maintains the fairness, to ensure that due process is upheld.

The concepts of due process and the rule of law were apparent in the clip I viewed. The accused was testifying in front of a jury, meaning he was receiving a fair trial, and at the beginning of the trial was reminded of all charges he was facing. When the judge was addressing the jury, it was made clear as to how the charges were laid and explained more

thoroughly how they would decide whether the accused was guilty or not guilty to the charges he was currently facing. There was time taken in the court for both the defence and the prosecution, leaving appropriate opportunities for both parties to gather statements and ask further questions if required.

Pa r tThr e e( 1 0ma r ks )

13.

Using the ISAAC method that we have previously used in class, provide an analysis of the following courtroom testimony given by Senior Sergeant Head during the fictitious trial of defendant George Silver. You should identify two issues and include the relevant sections of the Act for each issue as per the ISAAC method. (5 marks each)

“On 12 July 2018, Constables Davis and Right and myself were called to a rural property in the Gold Coast hinterland. We had received a report that a 42-year-old woman, Helen Silver, and her two children had been found dead. When the two officers arrived at the address, George Silver, Helen’s husband, was waiting at the front gate. While Constable Davis and Right secured the property, Senior Sergeant Head took George in the direction of the house which was some one hundred metres from the entrance to the property. They stopped at an open shed that was located just next to the house and went inside. Sergeant Head said to George ‘You belong to us now’. Without warning George to be careful of what he said, Head proceeded to ask George many questions about what had happened at the property. After listening to George’s answers, Head said he did not believe George’s story about the clothes that he had been wearing at the time of the alleged offence. He said to George several times ‘What did you do with the clothes?’ George, visibly distressed,

gave different answers each time the Sergeant asked the question. Again, Head said he did not believe George’s story. George then confessed to having killed his wife and five children.”

An issue outlined from this testimony is that of no warning provided to George prior to being questioned. The sergeant must state the civilian’s rights, including the right to remain silent. This lessens the chance of selfincrimination. This comes under section 431 of the Police Powers and Responsibilities Act. This section states that a police officer must caution a person prior to questioning in the way required under the responsibilities code. By law, an individual must be told by the questioning police officer that anything they say may be used as evidence in the case. This also allows opportunity to confirm with the individual that they comprehend their rights. In the above scenario, George is asked questions “without warning”, which is unlawful. Although he may have been a person of interest in the case, due process means that George must be treated as innocent until proven guilty. George also should have been offered opportunity to have a support person present during questioning, or that anything he says may be used as evidence. This behaviour by the officer is unlawful, and it is necessary that all officers are aware why cautioning is so important, and that due process is required in all circumstances. Secondly, the method of questioning by the senior Sergeant is an issue. It is law that when a statement is being taken, it is given by the individual voluntarily, not by coercion. In this case, the officer uses language which can cause stress or discomfort to the individual, which in this case was George. Section 416

of the Police Powers and Responsibility Act states that statements are not to be taken by threat or promise, and section ten of the Criminal Law Amendment Act 1894 also states that a confession given and presented as evidence in a criminal proceeding should not have been taken under any threats or promises by the person in the position of authority. It is also stated in section ten that any statement taken by an individual who was threatened shall be treated as an induced statement unless proven otherwise. Confession through intimidation or abuse of power can lead to false confessions and be a highly unethical act. In this scenario where George was asked a question multiple times after being told by the officer that they did not believe his statement lead to George being placed in a stressful and uncomfortable position. It is human response to act in a certain way in order to deflect tension or remove themselves from the situation as quickly as possible. In this statement, it is said that George used different answers every time the question was asked. This was his method of reacting to panic and attempting to use different methods to get out of the situation. The officer asking the questions in this situation was reactive, and therefore his emotional state leading the questioning followed through to the unethical behaviours, and a figure of authority abusing their power. Although George confessed, it is important to note that George confessed to killing his wife and five children. Yet, the call was for the death of a woman and her two children. Therefore, it must be assumed that George’s “confession” was false, and George must be treated with due process unless further evidence can prove him as guilty. Gathering information through severe intimidation, abuse of power, or threats in an unlawful act. It will present unreliable results and question the ethicality and behaviours of those involved. The role of the authority figure may be questioned not only by those directly involved in the case,

but also the community. This can lead to further distrust and lack of belief in the justice system.

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Re f e r e nc e s Anderson Boemi Lawyers. (n.d.). What to expect when you go to court. Retrieved from http:// Anderson Boemi Lawyers. (n.d.). What to expect when you go to court. Retrieved from http://www.andersonboemi.com.au/criminal-offence/what-to-expect-when-you-go-to-court/ Australian Criminal Law Group. (2019). Duress. Retrieved from https://aclawgroup.com.au/criminal-law/defences/duress/ Australian Criminal Lawyers. (2015). Self-defence. Retrieved from http://sydney.australiancriminallawyers.com.au/defence/self-defence Burdon of Proof (n.d.). Prosecution. Retrieved from Burdon of Proof (n.d.). Prosecution. Retrieved from Burdon of Proof (n.d.). Prosecution. Retrieved from http://www.burdenofproof.org/prosecution.html Commonwealth Director of Public Prosecutions. (2020). Commonly used terms. Retrieved from https://www.cdpp.gov.au/prosecution-process/commonly-used-terms County Court of Victoria. (2019). Sentencing. Retrieved from https://www.countycourt.vic.gov.au/learn-about-court/sentencing Dahlstrom, F. (2018). What is a committal hearing? Retrieved from https://www.gotocourt.com.au/criminal-law/vic/what-is-committal-hearing/ District Court NSW. (2018). Criminal Cases. Retrieved from http://www.districtcourt.justice.nsw.gov.au/Pages/case_types/criminal_cases.aspx Federal Court of Australia. (2019). Information about jury service. Retrieved from https://www.fedcourt.gov.au/going-to-court/jury Fricke, G. (1997). Parliament of Australia. Trial by Jury. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Librar ...