Issues in the Criminal Justice System PDF

Preview

Summary

Exam Notes...

Description

Issues in the Criminal Justice System Week 1 Kept in custody without being charged with a crime - Flight, Interference with other witnesses & endangering the community/other witnesses Sexual Intercourse with a child under 10 years of age - Child committing the act Eunn Case - Scruntising of evidence Parente - Criminal Lawyer Exam 1. Group Presentations 2. Textbook Question 3. How to classify charges, plea negotiations & prosecution guidelines work - Open book exam Agencies involved in the Criminal Justice System • DPP - Prosecutions of indictable offences • Police prosecutors - local court - grossly underfunded • ALS - legal support • Consider applications for legal aid - means tested • Plea of convenience • Legal Aid - Disadvantaged person (means testing) • Victim Support Groups • FACS - removal of children from situations • Courts & Tribunals • Mandatory Reporting - Teachers etc. • Community Correctional Services - post sentencing • Private Defence Counsel • Mental Health Professionals y • Forensic Investigations - analysts etc. • Private Investigators • Rehab facilities • Process Server • Sheriff Office • Parliament • Law Reform Commission (LRC) • Crime Commission • investigative body - compel people to turn up and answer questions • Can not be used against you in trial • Judicial Commission • Juvenile Justice Role of Prosecutor Prosecution Guidelines - What the role is AG does not tell us how to prosecute Whitehorn v The Queen - Helping to ensure that the accused trial is a fair one Test to prosecute - Guideline 4 Charge negotiation (plea bargains) - Guideline 20 Process of criminal prosecution

Issues in the Criminal Justice System Classifying Charges - Criminal Procedure Act - Part 1 - 5, 6, 7

Strictly Summary - Usually less strict charges - s6 • Always prosecuted in the Local Court • Magistrate - 5 years PAE • Instant appeal in Local Court • If you appeal and they might give you a higher penalty so you can withdraw Parker • 2 Year jurisdictional limit • Charara - District judge only reads transcript so has take their credibility • 28 Day limit to appeal (3 months maybe) Indictable Offenses - Table Offences • Someone making a decision with that charge • No election - default position is LC • What table in the Criminal Procedure Act • T1 - summary if no one elects - Section 260 • Plea deal might be better heard - DPP step in • DPP - Guideline 8 - Increase charge • T2 - Only prosecutor can elect Tables - Schedule 1 How to find out the class of charge Law Codes NSW - check answer • Check the legislation e.g.. Crimes act what type of offence • Criminal Procedure s5 • s6 - if lower amount of time in jail less than 2 years • Section 260 • Tables • Nothing there than strictly indictable S112(2) In Company - Indictable/T1 Knowing people are home - Strictly Indictable Section 105 - Crimes act s98 Strictly indictable - not a table offence s117 T1 or Strictly indictable depending on threshold s11(1) s5 - it may not be dealt with because of legislation s61a - Summary Offense

Classifying charges s5a - default position that the offence is indictable unless it permitted by an act or required to be dealt with summarily. s6 - offences must be dealt with summarily - presumption rebutted

Issues in the Criminal Justice System - Described as a summary offence - Max is more than 2 years - Excluding table offences

s260 - listed in T1 it is summarily unless election - listed in T2 it is summarily unless election by prosecution

Drugs - Section 30 of the act Strictly Indictable • Must be dealt in finality in DC or SC - Starts in LC until briefs are ready • Murder, Terrorism SC • Others DC - Drugs, Armed Robbery • Judge to rule without jury • Media influence • Accused can request for just a judge to hear - Belgar Cultural prejudice • Judge has to give a summary which can be appealed - Lazarus • Court of Criminal Appeal the decision on the error in fact of law • Court of Criminal Appeal the sentence - Davies mixed error of law • Manifestily Inadequate - only grounds for Crown to appeal

Tendency Evidence • Not rely on evidence for a tendency purpose - evidence generally needs purpose Context Evidence • Jury can understand the events are not isolated - explains why she didn't exist

Guest Speaker - Chad Mardini [email protected] Plea guilty just to save costs Negotiations • Plea bargaining • Representations to the police • Fact Sheets • Reputation • Section 89A - accused without a lawyer • Court must not sentence someone if there are other options available • Browne v Dunn - advocacy of fairness

Group Letter - Group D - Morning Session Lesson 3 - Crimes sentencing procedure act 3a 21a Chapter 7

Issues in the Criminal Justice System

Lesson 4: Murder - go to jail, police refuse bail Magistrate - for first mention - bail application or plead 25% discount will still get if later on Committal process - prosecutor to give all the evidence to magistrate then asked to consider it Evidence available to establish each element of each charge (prima facie) if no they must dismiss If there is a prima facie - is there a reasonable prospect of conviction? If no must dismiss Committal Hearing - NSW 30 years it went away. It is hard to call a witness Charge certification - New Process Senior Prosecutor - charge certifier - they decide if it is prima facie & reasonable prospects Disclosure by the police (certificate) If they sign the certificate they are supposed to run the trial Required to meet with defence counsel - accused has been available Director of PP - Can present an ex fiche indictment if magistrate dismisses and DPP disagree Before committal just a solicitor for crown and usually just legal aid or solicitor on assignment If magistrate agrees to proceed then the brief to the crown prosecutor or trial advocate CP files indictment and gets a trial date 2 weeks before trial barrister is briefed same as CP Negotiations ramp up closer to the trial David Tate - Humanities School - Research into Juries / Technologies Court of the future technologies Distributive Court Video court - what is the benefits Cyberlaw & Justice Larissa - Advisor to the Attorney General EAGP - Terms of reference Appropriate is a key word to ensure fairness etc. Backlog of criminal matters - specifically the district court Increase of prison population due to people on remand Obstacles Late brief services Defence held belief that the charges would be lessened closer to trial Defence belief of proportionally of sentencing was quite flexible - less incentive to plead early Discontinuity of legal representation Simple brief of evidence - Police disclose to the DPP (DPP do not do any investigation) - not everything is in admissible form - removal of the formalities Brief protocol no committal test - removed - 1% of matters dismissed charge certification - offences evidence available is capable to establishment each element of the charge received a certificate of police disclosing information

Issues in the Criminal Justice System introduction of case conferencing - case is adjourned until a conference occurs If you are unfit to plea no CC or self represented or guilty plead to everything certificate is filled out after the conference statutory sentencing discounts - accused’s solicitor has to disclose all the statutory discounts

(a) 25% if PG at Local Court (b) 10% max. post committal - PG up to 14 days prior to trial commencing

(c) 5% maximum where the above do not apply extreme culpability - exceptional matters where no discount is applied 25E - Sentencing Act Practice Note - procedural timeframes with matters Group Presentation - Sentencing of Juvenile Offenders Dolix Incapax - children under 10 can not be prosecuted it is irrefutable - statutory presumption Rebuttable if they are between 10-14 year old - test employed Childrens Court Juvenile Justice - Diversionary Programs, justice centres & community based programs Koori Court - Parramatta - informal Aboriginal Court Their future matters Non custodial sentencing community service order good behaviour bonds detention

Sexual Assault Sexual Intercourse W/O consent Knowledge Law Reform do the benefits outweigh the consequences Presentation - Presumption of Innocence Presumption of Innocence Sentencing - relevant circumstances 3a - the sentence imposed must deter the individual from committing it again 21a (5aa) - drunk is not a mitigating factor Aggravating factors make it more serious Mitigating factors make it less serious Graeme - Strike Force Sacoya LEPRA Has to follow the legislation to ensure that evidence is ruined etc.

Issues in the Criminal Justice System Caution the suspect Section 90 of the evidence act - talks about being unfair Table 1 and above must be electronically recorded Lines of enquiry Lack of updated of new precedents 2 day program to understand mental health in suspects Lack of training in the police academy Exam

3Qs Textbook Classification of charges and understand the prosecutors guidelines charge negotiation and decision to prosecute 3 Group Presentations

Partial Defences to murder - lowers from murder to manslaughter Criminal trial bench book - 6400 directions to the jury Substantial Impairment - R v Voglu - Underlying condition - Abnormality to the mind - Condition impaired their understanding of the events - So impaired that the liability is reduced - Purpose of punishment - Should be abolished but seen as a mitigating factor Provocation - 2014 provocation was repealed with extreme provocation - Must of been non violent sex advance - Conduct of the deceased has to be a serious indictable offence Loss self control and form intent to kill ordinary person would have loss self control in that situation Excessive Self Defence - Not a reasonable response in the circumstances - Battered women syndrome - cycle of violence Onus on the crown to prove that it was not self defence Self inflicted intoxication can not be taken into account Taking Instructions / Function of a Lawyer What do we know about Crims: Correlaiton between low IQ and criminal offending ESL for many offenders People with mental illness or cognitive impairments are over represented More intelligent individuals are less likely to get caught Do not plead guilty unless in their best interests

Issues in the Criminal Justice System Crown - social workers - Witness assistance service to held with the above issues Witness Assistance Service - Lauren - Not available to the defence lawyers 70 - 80 average case load for each WASO Child sexual assault / historical sexual assault - key areas Families in homicide matters Domestic violence matters They prioritise which matters they attend to The WASO is usually the first person who will contact the complainant ABoriginal people are quite reluctant to come to them

Work with peoples counsellors Managing the complainants expectations in relation to time frames etc. Trauma is usually a shut down not relive and recount the the story Involved in the preparation of the witness in terms of cross examination etc. Guidelines - termination for domestic violence complaints they have to liaise with WAS and get their opinion on the matter If a person does not want the matter to continue (retraction of the statement) the prosecutor can continue to run the case but for the community. They would have to weigh up the if the community interest outweighs that of the individual Communication between lawyer and client - what do they want to achieve, what will they settle with and how do we communicate that to them Death by reckless driving - Death Drive - question about the families and if they want to prosecute etc. - not a lot of support after the event Child victims of assault is now recorded and also their evidence in cross examination and closure. They do not need to actually be in court. They can just play the recording Witness intermediaries - police can get them to come to the first police interview and guide the police on any issues that the complainant may have. If they do not understand questions that are being asked etc. no double negatives. A report can be completed for the trial as well regarding the way the trial should be conducted (breaks, support animals etc.) They can also be present in cross examination they can stop the defence and make them ask questions in a certain way. Lawyers could object but it doesn’t really help. It was not working and hence the introduction of the intermediaries. It can help guide the prosecutors and defence lawyers to ask the right kind of questions Censorship in a sense where evidence is prejudicial and not able to be used in court X7 v Australian Crime Commission (2013) Lee v NSW Crime Commission (2013) HCA 39 Group Presentation - Joint Criminal Enterprise Complicity - extends liability - not codified in staute but in common law - no uniformity in application Test - one or more person must agree to commit an act and the participation of the act The agreement is not expressed but can be implied - does not need to made before the offence is committed

Issues in the Criminal Justice System Being present, committing, assisting or knowing the act is being committed Withdrawal from a JCE - acts not being reasonable in failing to stop the act from proceeding A person must expressly communicate the withdrawal. They must also take reasonable action to persuade the others from committing the crime. It also has to be timely and to undue the events Miler v Queen - foresee the possibility that the offender would commit the offence SIlence amounted to agreement

HCA the doctrine is unjust R V AH NSW (2013) CCA 32 - child charged with murder under the joint criminal enterprise precedent. He then pleaded to down Group Presentation - Mental Health in the Criminal Justice System Veen case Mental Illness If they are metnally ill during the trial there is a question about how they can participate in the trial fitness - whether they can comprehend, capable of evidence, understanding the process, give proper instructions R v Presser 1958 - paragraph 48 - minium standard to be fit Does the accused understand what they are charged with Are they able to plead guilty or not guilty Exercise a right of challenge General nature of the proceedings Follow the general course of proceedings Understand substantial effect of any evidence given against him Make a defence to the charge Sufficient capacity to be able to decide the defence Kesavarajah v R 1994 - length of the trial Fazah v R 2012 NSW SC 231 - unfit to be tried Not fit - Special hearing Mental health review tribunal Settree no2 - not guilty by mental illness Media interaction with the Criminal Law

Issues in the Criminal Justice System Textbook Summaries Chapter 2 - Police Investigation Balancing public interests - Knee jerk reactions to isolated incidents - 6A of LEPRA Search & Seizure - some is common law while other states have codified in statute NSW - LEBRA - reasonable power of powers based on reasonable suspicion Case Study - Gundy Case - What happens if it is an unlawful search? Arrest should be a last resort - large number of deaths in police custody Royal Commission into Aboriginal Deaths in Custody Interrogation - Verbals - move to recording of interviews Compulsion - Article 14(3)(g) - not compelled to confess guilt Right to silence - they can be cautioned and therefore inferences will be drawn from the silence

Chapter 4 - Pre trial

Discretion Police pre trial decision making - charges can be added, dropped amended thoughout pretrial stage Bail - depends largely on the seriousness of the crime - some crimes no entitlement to bail Prosecution pre-trial decision making (noll prosequi - decision not to prosecute, alternative charges, plea bargain, witness selection) DPP Guidelines Test to prosecute - Guideline 4 Charge negotiation (plea bargains) - Guideline 20 Duty of disclosure Defence pre trial decision making Magisterial pre trial decision making ( issue of warrants, case to answer) Sentencing discretion in the selection of penalties decsions on appeals discretion during punishment Abuse of process in pre-trial Presumption of innocence right up until the verdict is delivered NSWLRC Into bail - wanted to create a fairer bail regime - bail be the rule not the exception June 2012 - 23% of prisoners are on remand Use of the dock - referred to as the accused not their name - remain on the seat of the floor Ensuring a fair trial of the accused Directions given to jurors ignored or do not understand complex (tax fraud case) Punishment Principles of punishment - retribution, rehabilitation, deterrence, community protection and reintegration/restoration Different options available - NSW - Our group press Sentencing What are the aims of sentencing - refer to principles of punishment Agreed facts - plea bargaining What is presented at the sentencing hearing drastically effects the sentence given Crown can appeal a sentence - very rare

Issues in the Criminal Justice System Facts concerned when handing down sentence - gravity of the offence (how bad is it, mental state of offender, harm to and involvement of the victim, prevalence of the offence Facts concerned with the offender - character, age, gender, cultural background, disabilities, cooperation with authorities, remorse & guilty pleas Facts concerned with the effect of the offence & penalty - hardship to the offender, hardship to others, parity with sentences of co-offenders Consistency in sentencing - kill your wife get life Ambiguity of sentencing aims, lack of legislative guidelines, lack of judicial guide lines, non integrated criminal justice system Remedies for achieving just sentencing - address the above point - pg 262 Mandatory sentencing - blanket reaction does not take into account individual circumstances Read pages 309-329 (Aboriginal People, Women, Intellectually Disabled) Why are Indigenous Australians statistically over represented in the criminal justice system? • 2.5% of Population - account for 25% adult prison population • Subjagation of Aboringal people by powerful groups in the community • Police initiate confrontation with Aboriginals rather than reactive approach with the whites • Instiutional racism - overpolicing • Children were stolen from families then they rebell against the police • ABoringials received harsher punishments than the white folk • Bugmy V Queen - considered the childhood in determining their moral culpability •

Police attitude towards aboriginals - train to be peace keepers not enforcers • Koori Court - Victoria • Circle Sentencing • Sentencing Judges trained in cross culture + mitigating factors (childhood etc.) How are women deal with differently compared to men in the criminal justice system? • Provocation - does not take into account prolonged abuse - has to be the event prior to the murder • Self Defence - Can only be when the attack is about to begin - Proportionality • Battered woman syndrome In what ways are intellectually disabled people discriminated against in terms of criminal law and procedure? • Compliant with officers requests or become belligerent • Normalisation • Inability to determine if a person has an intellectual disability Given what you have read, is there an argument for different criminal laws and/or procedures for different people? Read Chapter 2 - Police Investigation Discuss the competing public interests in the process of police investigation. Refer to examples. Discuss the use of discretion by police and prosecutors. Can the process be seen as punishment ?...