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HSC LEGAL STUDIES: CRIME CRIMINAL TRIAL PROCESS

Assess the effectiveness of the criminal trial process as a means of achieving justice The criminal trial process is effective to a moderate extent as a means of achieving justice as it is often limited by accessibility, enforceability and compliance issues. Whilst legislative frameworks are present, its limited accessibility to disadvantaged groups due to the costs involved and the ‘loopholes’ present in the system undermines its ability to achieve justice for all. This is seen when considering the courts, legal personnel such as the DPP, charge negotiation, legal representation, use of evidence and the jury system. Thus, the criminal trial process has been effective to a moderate extent in achieving justice. Role of the Courts The courts have been effective to a moderate extent in achieving justice, however this is often undermined by time delays and expenses involved which limits its accessibility and enforceability. Ø Court system provides a hierarchical structure, allowing individuals to be tried in separate courts depending on the seriousness of the crime, whether it’s being heard for the first time or on appeal, the nature of the offence, etc o Imposition of an appeals process which allow injustices to be overturned: § Darby v R [2016] NSWCCA: Appealed conviction in a case of inconsistent verdicts, which were unreasonable- sentence quashed and ordered a retrial Ø However, the courts can often be time consuming with explicit time delays due to resource inefficiencies, inhibiting the ability to achieve justice for victims and the offender o Law Society of NSW President Gary Ulaman said there was a “serious backlog of cases”, particularly in the Federal Circuit Court. Mr Ulman said judges were being forced to look after between 400 and 600 cases each, leading to lengthy delays (Daily Telegraph, March 2016) Ø In addition, court trials are expensive as well, limiting its ability to achieve justice for individuals who cannot afford it o R v Gittany [2013] NSWSC- Gittany had to result to judge-only trial since wasn’t covered by legal aid and 6 week trial with jury cost $330,000- undermines the ability for the court system to achieve justice for all Ø Furthermore, court process can be confronting and traumatising for victims, especially those of domestic violence and sexual assault à cross examination reform o 2015 Australian of the Year Rosie Batty along with Women’s Legal Services Australia are calling on the law to be reformed so victims cannot be cross examined by the accused, since it prolongs the trauma (ABC News, May 2016) § George Brandis has since announced in May 2017 that cross examination of domestic violence victims will not be allowed to ensure a more accommodating process. o Senior Magistrate, Mr Wallington says “The emotional and psychological impact of sexual assault can be so damaging that it affects the ability of complainants to give their evidence” (The Age, October 2016) o Attorney General George Brandis in May 2017 pledged that cross-examination will not be available for domestic violence and sexual assault cases, in response to community lobbying Ø Recent Reforms have aimed to lessen the burden of court delays to ensure justice is more successfully achieved:

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Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016- Introduced to provide faster and more accessible justice to victims, witnesses and accused persons by allowing four property-related criminal offences that currently must be dealt with in the District Court to be dealt with in the Local Court

Thus, the courts have been effective to a moderate extent in achieving justice within the criminal trial process since it is often inhibited by enforceability and accessibility issues.

Legal Personnel: DPP Whilst the DPP represents and prosecutes cases on behalf of the state, its discretion as an independent authority means it is only effective to a moderate extent in achieving justice for individuals involved in the criminal trial process Ø When commencing operations, DPP must follow Prosecution Policy and Guidelines, which were revised in 2007- DPP prosecutor must represent the interests of the community Ø Four Corners revealed that NSW DPP under scrutiny after they did not prosecute Mr Attwater and Mr Maris, who were charged with manslaughter and manslaughter accessory after the fact charges respectively after killing Aboriginal Woman Lynette Daley (ABC News, May 2016) Ø DPP undertaking audit process after victims believe DPP are not following their own guidelines with “no formal mechanism” for victims to challenge or seek review of procedural discretion. Justice Peter McClellan believes there is a lack of external scrutiny or oversight in DPP procedures with greater transparency needed (9 News, April 2017) Ø However, the unprecedented caseload of the DPP undermines the ability of the Prosecutor to legally represent every case, degrading its effectiveness and ability to achieve justice o Shadow attorney-general Paul Lynch said this was "consistent with anecdotal stories of delay in the DPP Office" and "this significant underspend just adds to the unease that some have felt about the Office of the DPP". (SMH, October 2015) o Reports of matters being adjourned since not enough DPP lawyers to effectively represent all awaiting cases Ø Hamzy v R [2014] NSWCCA- Justice Robert Shallcross labelled the office of the Director of Public Prosecutions “incompetent” and “inefficient”, saying he has no confidence in its ability to bring serious criminal trials in a timely fashion (SMH, September 2015) o Crown Prosecutor failed to disclose “a deal of information which is clearly relevant and which should have been disclosed long ago”. Ø Matthew Levenson Case: DPP struck unprecedented deal with Michael Atkins, in response to comply with procedures after outcry from Levenson’s family Thus, the DPP in the criminal trial process has been effective to a moderate extent in achieving just outcomes.

HSC LEGAL STUDIES: CRIME CRIMINAL TRIAL PROCESS Charge Negotiation Charge negotiation in the criminal trial process has been effective to a moderate extent in achieving justice. Whilst it can lead to the benefit of a faster and less expensive trial, victims are often ignored and at times, the offenders’ convictions do not match their culpability. Ø Under Section 35A of the Crimes (Sentencing Procedure) Act 1999, the accused can agree with the prosecution to plead guilty to a particular charge in exchange for a lesser sentence. This allows for the benefit of a faster and less expensive case, which goes straight for sentencing Ø However, victims are often ignored in plea bargaining, especially since witness and victims impact statements are not required, undermining the rights of victims to present their side of the case o Victims are left feeling “disempowered, “disenfranchised” and with a sense that justice hasn’t been done when they see a criminal plead to a lesser charge and receive a discount on their sentence (Daily Telegraph, July 2015) o NSW Law Reform Commission Report recommended the ODPP should give “victims the opportunity to put their views in writing about any proposed negotiations with the defendant” (Daily Telegraph, July 2015) o VOCAL INC NSW- Non-government organisation representing/protecting victim’s rights in criminal processes- do so through advocacy, media campaigns as Victim Support Unit, providing crucial services to victims impacted by the crime and the criminal trial process § Executive Director of Victim’s Support Unit of VOCAL says urgent need for systematic change to the justice system, “not committed to the idea of an open conservation that takes the victims views on board” Ø Across most Australian jurisdictions, charge negotiation/plea bargaining is not recognised or controlled by any legislation, which limits public understanding with the risk that the offenders’ conviction may not match their culpability o NSW District Court Judge Peter Berman said judges are being misled about the true facts of crime; including rapes being downgraded to indecent assault to get guilty pleas and save court time, (Daily Telegraph, November 2016) o Legal Aid’s Submission to NSW Law Reform Commission “Encouraging appropriate early guilty pleas: Models for discussion”, suggests there needs to be “published guidelines that set out the principles and procedures for charge negotiation” o R v Koch (2009): In NSW, Karl Koch was charged with the attempted murder of his former girlfriend Nanette May, who was beaten so severely that she has ongoing motor co-ordination problems. However, in reaching a deal with the DPP, plead lesser offence of malicious injury with intent in 2009, despite significant evidence suggesting he committed Ø However, by saving up to $10,000 per day and increasing rate of criminal conviction, it is arguably better for the victim and society to get a lower conviction than none à however lack of transparency leaving offenders unpunished/insufficiently punished Thus, charge negotiation in the criminal trial process is only effective to a moderate extent as a means of achieving justice.

HSC LEGAL STUDIES: CRIME CRIMINAL TRIAL PROCESS Legal Representation, including Legal Aid Legal representation is essential in ensuring justice is achieved within the criminal trial process, however with resource inefficiencies leading to a lack of accessibility, this is only effective to a moderate extent. Ø Dietrich v The Queen (1992) established a limited right to legal representation in Australia. Under the Australian legal system, supported by the Convention on Civil and Political Rights, the defendant has the right to a fair trial. However, this can be undermined if the accused does not have access to adequate legal representation Ø Government created the Legal Aid Commission under the Legal Aid Commission Act 1979 (NSW) to provide legal assistance and presentation to socially and economically disadvantaged à however means tested, presenting a lack of accessibility, especially since the court system is quite costly o Many individuals experience the “Justice Gap”, that is they cannot afford a private lawyer but are ineligible for Legal Aid, undermining their ability to obtain adequate legal representation needed (Sydney Criminal Lawyers, April 2017) o Federal Government was planning to cut 30% of funding to community legal centres between 2017 and 2020, which would have led to CLCs forced to turn away a further 36,000 disadvantaged individuals (SMH, November 2016) o However, these funding cuts have been reversed as a result of lawyers and community groups lobbying the government for their dismantlement. Instead Attorney-General George Brandis has promised $55.7 million in extra funding in the 2017 Budget which will prioritise victims of domestic violence and ATSI o More recently, NSW Government has announced a review of NSW Government’s support of Community Legal Centres. Its purpose is to audit funding for CLCs to ensure legal services are directed to those most in need and ensure the improvement of CLC service provision to assist in funding allocation o However, still a short fall from the $200 million funding increase recommended by the Productivity Commission in 2014 to aid the legal assistance sector nationwide. o Law Council of Australia says extra $350 million needed as serious cases are not proceeding, causing backlogs and inaccessible platform for justice (ABC News, May 2016) Thus, the lack of accessibility to legal representation as a result of resource inefficiencies means the criminal trial process is only effective to a moderate extent in achieving justice

Burden and Standard of Proof Ø Burden of Proof = Prosecution; Standard of Proof = Beyond Reasonable Doubt Ø The Queen v Kritsigh Dookheea [2017] HCA: High Court held that a “reasonable doubt” is what a reasonable jury considers to be a “reasonable doubt”, as the trial judge had instructed the jury in the trial that the prosecution had to prove an element of the crime, “not beyond any doubt, but beyond reasonable doubt”. Consequently, as the judge misdirected the jury, there was a miscarriage of justice Ø However, as outlined by the ‘Rule of Law’, one problem is that it is not always clear what is meant by a ‘reasonable doubt’, limiting the ability to achieve justice for the offender

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2008 NSW BOCSAR study found 55.4% of jurors believed the phrase meant they needed to be “sure” that the person was guilty while 22.9% believed it meant “almost sure”

Use of Evidence The use of evidence in the criminal trial process is only effective to a moderate extent in achieving justice for parties involved. Ø Under the Evidence Act 1995 (NSW), evidence is only admissible if it is relevant and legally obtained under the provisions outlined Ø Rise in the use of expert witnesses who have ‘specialised knowledge’, however increasingly worried about the credibility of such evidence- suggested in Makita (Australia) Pty Limited v Sprowles (2001) NSWLR that the court be supplied with ‘criteria enabling evaluation of the validity of the experts conclusions’ Ø R v Wood [2012] NSWCCA 21: highlighted the fallibility of expert witness testimony as on appeal, it was found that the testimony was flawed with reasonable doubt about the scientific proof related to Ms Byrne’s Death Ø R v Keogh [No.2] SASCFC (South Australian Case): Upon appeal, it was found that the forensic evidence presented at Mr Keogh’s was flawed. Mr Keogh did not kill Anna Jane Cheney in the bath tub but rather she drowned. Consequently, Mr Keogh spent 20 years in jail for a crime he did not commit Ø Nikki Francis-Coslovich Murder Trial: John Torney was found not guilty of murdering Nikki Coslovich, even though there was evidence from a neighbour’s witness statement that he saw Torney abusing Nikki hours before her death and Torney had previous assault and drug charges. Due to the rules of evidence, these key persuasive bits of evidence were not shown to the jury, undermining the ability to achieve justice for the victim Ø Evidence (Tendency and Coincident) Model Provisions, a draft bill recommended by the Royal Commission into Institutional Responses to Child Abuse, aims to amend the Evidence Act, allowing for the broader admissibility of tendency and coincidence evidence o The proposed amendments would mean person standing trial could have their prior convictions and acquittals made admissible as evident, so they can be presented before a jury and judge. However, can undermine the presumption of innocence Ø As revealed by ABC 7:30 Program, new court pilot program aims to reduce trauma for child sex abuse victims to give evidence in court. This involves pre-recording children’s evidence and assigning witness intermediaries to assist children o District Court Judge Kate Traill says program has had “amazing results” so far o Since March 2016, more than 700 children have been through the NSW pilot program, which has 44 trained witness intermediaries- particularly important since victim testimony is crucial in child sexual abuse cases as prosecutors rely on it heavily, however is often concealed due to traumatic circumstances which undermine presentation of evidence § This follows recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse Thus, the fragility of the use of evidence in the criminal trial process means it is only effective to a moderate extent in achieving justice for individuals.

HSC LEGAL STUDIES: CRIME CRIMINAL TRIAL PROCESS Use of Defences (Complete and Partial) Complete Defences Ø “Self Defence” à contentious/ fine line in the law o Under Section 418 of the Crimes Act 1900, a person is not criminally responsible for the conduct which they believe is necessary to defend themselves, another person or property, provided their actions are a reasonable response to the circumstances as they perceive them § However, the law of self-defence can have serious limitations for a person who kills an intruder. If that’s the case, self-defence is not available if the person uses excessive force against the intruder, or if they acted to protect their property etc o The Queen v Brown [2017]- man stabbed his brother once to the chest, after the brother threatened violence against family members- victim had long history of violence against family and was affected by drug ice, including alcohol. Despite pleading self-defence, convicted of manslaughter and act was found to be “excessive self-defence” o Case of Benjamin Batterham (SMH, March 2016)- reflected the complexities in the defence of self-defence since Batterham, in protecting his family from an intruder was charged with murder, illustrating that the defence is not always successful o Sydney Barrister Stephen Odgers SC, chair of the NSW Bar Association’s Criminal law Committee, said the legislation was “not simple” and “everything will depend on the particular circumstances of the case” (SMH, March 2016) Ø Mental Impairment o Under section 38 of the Mental Health (Forensic Provisions) Act 1990, a person cannot be found guilty of a criminal act, where they lack the mental capacity or reasoning to understand their wrong doings o R v Jacob Bradley Holland [2017] NSWDC- Man was found not guilty of breaking into nearby home while naked and assaulting woman in her bedroom, since he was deemed to be sleepwalking. The defence successfully argued that he was suffering from a state of “automatism, namely somnambulism”. Therefore, defence argued that accused did not have the “adequate mens rea” to commit the offence, and cannot be found guilty of the crime o In dealing with mental impairment, the courts rely on the M’Naghten test, a case originating in England in the mid-19th century, which classified mental illness as ‘a defect of reason, from disease of the mind, as not to know the nature and quality of the act the defendant was doing, or if he did know it, that he did not know he was doing what was wrong’. However, the NSW Law Reform Commission has recommended an overhaul of the old M’Naghten test, to bring in line with modern understandings of mental illness o Influence of the media in informing shown through the ABC NEWS article, “Explainer: The metal impairment defence in homicide cases” (SMH, June 2016)considers both offenders and victims rights o R v Tannous [2016] NSWSC: accused bashed wife to death with broom handle, after believing she was cheating- deemed not guilty by reason of mental illness Ø “Battered Wife Syndrome” o A mental disorder that develops in victims of domestic violence, because of serious, long-term abuse

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R v Silva [2015] NSWSC: Defence sustained that Silver had suffered from battered wife syndrome, a form of post-traumatic stress disorder significantly lessening her moral culpability. She was acquitted of murder but found guilty of manslaughter.

Partial Defences Ø Provocation o Under section 23 of the Crimes Act 1900, provocation refers to the deceased’s conduct or actions alone which caused an individual to ‘lose control’. In determining whether the deceased’s conduct alone caused you to lose control, the court will look at things such as the amount of provocation experienced, things said or done, history of relationship, etc § However, this is often considered a controversial defence and over recent years, there has been a shift in public opinion towards more personal responsibility in murder cases o In 2012, a NSW Legislative Council Partial Defence of Provocation Inquiry was established to determine whether the defence should be abolished or amended. This inquiry was launched following the high-profile case of Sydney man Chamanjot Singh (R v Singh (2012)), who was sentences to just 6 years in prison for manslaughter after killing his wife § From the recommendations of the inquiry, the Crimes Amendment (Provocation) Act 2014 was passed by NSW Parliament. This replaced the partial defence of provocation with a new “partial defence of extreme provocation”, which imposes a higher test of types of conflic...