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The Criminal Trial Process Assess the effectiveness of the criminal trial process as a means of achieving justice Introduction v Effective to an extent in achieving justice for victims, offenders and society v Meant to reflect the society’s best interests, even though community discontent is often shown through the media v Difficult for criminal justice system to balance the contesting rights and needs of all parties involved, which inhibits the effectiveness of the criminal trial process in achieving justice

Role of the Courts v The Criminal Courts are often seen as the most formal and official way in achieving justice, especially in the adversarial system due to its strict procedures. Courts are meant to represent the interests of society- victim but also bring the accused accountable v Court Jurisdiction- aims to achieve justice by assigning different cases to different courts specialised jurisdiction to ensure appropriate sentence proportionate to accused crime v However, many factors can undermine its ability to achieve justice for all parties involved v Court process can often be confronting and traumatising for victims, especially those who have experienced domestic violence or sexual assault: 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) 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) v Lengthy court procedures- at least a 2-month backlog, could be a year for indictable offences o “Delays in Court Matters in Parramatta fails families” (Daily Telegraph, March 2016)- 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 v Very expensive- E.g. the Gittany Case cost $330,000 for a 6 week trial with a jury, however since he couldn’t afford it, judge-only trial- this undermines the ability for the court system to effectively achieve justice for all (value in alternative courts) v Use of Alternative Courts: o E.g. Drug Court NSW for specialised drug and alcohol abuse offences to specifically achieve justice. More compliant (stats further down)

Controversial Charge Negotiation / Plea Bargaining v Section 35A of the Crimes (Sentencing Procedure) Act 1999 : accused agrees with the prosecution to plead guilty to a particular charge in exchange of a lesser sentence

v Benefit of a faster and less expensive case for both parties, going straight to the sentencing hearing at a higher court v However, victims are often ignored in plea bargains, which undermines the rights of victims to present their side of the story and allow for a harsher sentence which reflects its impact on them: o Witness and victim impact testimonies are not required 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) v Across most Australian jurisdiction, plea bargaining is not recognised or controlled by any legislation, which limits public understanding of the process and raise doubts motivations and legitimacy agreements v Risk offender’s convictions may not match their culpability. Concerning from the perspective of the victim since plea agreements can alter the seriousness of the conviction and the ability of the prosecution to prove its case on the evidence present: 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 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 v Lack of transparency: o Levenson Case: Due to Levenston’s Family plea to find Matthew’s body, the DPP has striked a deal with the accused, Michael Atkins, to tell the police where the body is in return for all charges being dropped unless there is “fresh and compelling evidence” (SMH, November 2016)

Legal Representation v Under the Australian legal system, defendant has the right to a fair trial however this can be undermined if the accused doesn’t have adequate legal representation. Access to justice is crucial in ensuring legal system functions fairly and equally. o One’s financial status can undermine their right to a free trial, to consequently result in injustices v Dietrich v The Queen (1992) 177 CLR 992- established a limited right to legal representation in Australia v Government has created the Legal Aid Commission under the Legal Aid Commission Act 1979 (NSW) to provide legal assistance and presentation to the socially and economically disadvantaged

However, often means-tested, presenting lack of accessibility since the court system can be quite costly, undermining the right to a fair trial and the ability to achieve justice o Recent Legal Aid cuts from the Turnbull government can further undermine the ability of the criminal justice system to achieve justice (SMH, November 2016) § Community legal centres face 30% cut to funding from July next year § This has prompted the presidents of every state and territory law society, representing 60,000 practising solicitors, to pen an open letter to Prime Minister Malcolm Turnbull urging him to reverse cuts (impact of community outrage) § Anti-Violence Campaigner and 2015 Australian of the Year, Rosie Batty has condemned the move: - “The legal system is a circus that a hardened few get used to.” - “Not being able to have legal representation disadvantages you from the very beginning” - “Our systems can barely cope” o According to an ABC News Report, “No Right to Justice” (ABC News, April 2015) § 70% of community legal centres have to turn people away because of a lack of resources v R v Gittany [2014] unable to receive Legal Aid but could not afford, and so had to accept a judge-only trial, would could influence the sentencing of the trial due to judicial discretion o

Role of Jurors v The jury system is a central part of the adversary system and reflects the historic right of an accused person to be judged impartially by a group or peers based on evidence presented, outlined in the Jury Act 1977 (NSW). Reflective of what the community deems to be criminal (also removes judicial discretion) v However, the ability to achieve justice can often be undermined by the actions of jurors: o Cesan v The Queen (2008)- miscarriage of justice since the jury fell asleep during parts of the trial o Gable Tostee Case- A juror discovered using Instagram to discuss the case, to which Tostee was not found guilty of murder or manslaughter. However, Justice Bryne later deemed the posts not serious enough throw verdict out v In addition, a ‘hung jury’ can often undermine an ability to sentence, putting strains on the courts but also to the accused and the victims and witnesses involved: o Introduction of the Jury Amendment (Verdicts) Act 2006 (NSW) which allows a majority verdict of 11:1 or 10:2 in some cases where there has been sufficient deliberation § Removes the power of unreasonable jurors unrepresentative of the community and avoids time delays, costs and stresses to both the offender and the victim, but

conflicts with the offenders rights to an assessment of ‘beyond reasonable doubt’ v Often don’t understand the complexity of evidence (‘Beyond Reasonable Doubt’) o A 2008 NSW Bureau of Crime Statistics and Research Study ‘Juror Understanding of Judicial Instructions in Criminal Trials’, surveyed on what people understood by the phrase “beyond reasonable doubt”: § 55.4% believed it meant “sure that the person is guilty” § 22.9% believed it meant “almost sure” Ø BOCSAR Report Commented: “That is quite a wide spread of opinion” o Under current law in Australia, guided by the High Court’s decision in Green v R 1971 126 CLR 28- judges are not supposed to give juries any clarification o Phrase is not explained beyond its words and is thus, up to the individual jurors’ interpretation, which can skew the decision-making process v Often not told the full evidence, and this can skew their sentencing: o John Torney in the Nikki Francis- Coslovich Trial, in which he was found not guilty for murder by the jury: Public outcry since key witness statement from Immediate Neighbour Jermayne Kennedy who saw Torney standing over Nikki and abusing her with foul language less than 24 hours before the murder, plus other key facts about Torney’s violent past and drug use, was kept from the jury (Herald Sun, November 2016) o However, this undermined the presumption of innocence. Though, this could have been key information which would have allowed to convict him. Consequently, this information in the media could skew the verdict o Sparked community outrage and needs for reform o “Family outraged after jury didn’t hear full version of events leading to fatal crash” (A Current Affair, November 2016)- Victim’s mother§ “John’s life was wasted because we haven’t got the true justice we wanted. We wanted somebody to pay for it and he’s not” (could also be used under victim in sentencing) § “Now I believe the offender has more rights than the victim. The victim and the family have nothing” § “I always believed our court system was true and a part we all believed it and it hasn’t happen “ à losing faith in the court system due to a lack of justice v All of these factors can undermine the accused right to a fair trial but also the victim’s plea towards an adequate sentence which reflects the damage done to them

Sentencing and Punishment Evaluate the effectiveness of sentencing and punishment as a means of achieving justice Introduction v Sentencing seen as a sanction imposed by society, and is thus effective to an extent in achieving justice

v Various factors prohibit criminal justice system effectively handing out a sentence which grants justice for all parties, due to conflicting rights and needs of society, offender and victim v Plea of victim/ family and community outrage, as well as certain process can inhibit the ability to achieve justice but also the offenders right to be sentenced on the evidence presented

Mandatory Sentencing (+ Kieran Loveridge case) v Mandatory Sentencing is an example of how community outrage towards a tougher stance on crimes can spark law reform, though inhibit the criminal justice system v R v Loveridge [2014] NSWCCA 120- ‘one punch killer’ Kieran Loveridge killed Thomas Kelly after a night out o Original Sentence: 7 years and 2 months with a non-parole period of 5 years and 2 months v This sparked community outrage and thus, Premier Barry O’Farrell introduced tougher ‘one punch’ laws o Under Section 25A of the Crimes Act, this carries a maximum sentence of 20 years by “intentionally hitting the other person with any part of the person’s body or with an object held by the person”. o For those who are intoxicated under Section 25, there is a maximum penalty of 25 years and a mandatory minimum non-parole term of eight years v Consequently, Loveridge’s sentence was doubled to 13 years and 8 months with a nonparole period of 10 years and 2 months by the Court of Criminal Appeal v However, this stops judges for assessing criminal cases on their merits that is a case-by-case approach and so, mandatory minimum sentences may increase not-guilty pleas, and conflicts with the offenders rights o Former NSW DPP, Nicholas Cowdery believes there is “no justification for mandatory minimum sentences. “There is plenty of evidence that increasing penalties…does not deter offenders, complicates and adds to the expense of criminal proceedings and required court to act unjustly” (SMH, January 2014) o NSW Bar Association President Phillip Boulten C said the “Knee-jerk” proposal was “likely to create a raft of unfair and unjustly harsh sentences” (SMH, January 2014) v Calls from NSW lawyers to scrap the laws due to their ineffectiveness and contribution to Aboriginal over-representation o Lawyers, from the Law Council are calling for mandatory minimum sentences for ‘one punch’ homicides to be scrapped, arguing that they are not working to prevent violent crime and can have unjust outcomes (SMH, April 2016)

v Northern Territory is looking at scrapping its mandatory sentencing

Purposes of Punishment (Deterrence, Retribution, Rehabilitation, Incapacitation) Imprisonment v Whilst the prison system keeps offenders locked up, ‘tough on crime’ approach, ineffective in fulfilling the other purposes of punishment, that is deterrence, retribution and rehabilitation, for the offender. v Prison system at capacity (because of tougher stance on crime e.g. mandatory sentencing and bail laws)- leads offenders into greater criminal activity o 11,011 inmates a day when there is only room for 9,829 prisons (112% occupancy rate) o Under a process of double bunking- sacrificing rehabilitation o Little deterrent- 56% of prisoners will reoffend § Prison doesn’t prepare offenders for life outside of prison. SBS Insight Female Offenders Program revealed that female offenders are more inclined to re-offend just to get back in since they are unprepared for life outside of prison v Government reconsidered opening up Parramatta prison, but since withdrawn cost $10 million of the tax payer’s money (costs the taxpayer $100,000 per prison per year to keep them locked up) v Need to deter from the prison system through diversionary rehabilitation programs and education: o For example, the Drug Court, established under the Drug Court Act 1988, which is a more cost effective in reducing drug-related recidivism: § 37% less likely to be reconvicted for any offence § 57% less likely to be reconvicted for a drug offence o CREDIT Program (95.9% success rate)

Victims in Sentencing v The criminal justice system removes the victim from being involved from the outset since prosecution is done by the state on behalf of both the victim and broader society. Thus, the victim is relying on prosecuting authorities to properly represent their interests based on the evidence presented v In NSW, victims’ rights are recognised and guaranteed under the Victims’ Rights and Support Act 2013 (NSW) v However, often feel ostracised and disregarded by the criminal justice system v Victims can give a victim impact statement- opportunity to say how the crime has impacted them, in a hope that the sentencing will reflect the impact of the problem (further outlined in s 26 of the Crimes (Sentencing Process) Act 1999 (NSW) à only permitted for offences involving violence, death or physical harm where the court sees appropriate) o Often influence the sentencing- especially valuable for the jury o In the chookpen case, “Parents jailed for rape, torture, imprisonment of daughter” (SMH, October 2016), the daughter successfully contested in her

victim impact statement, describing her childhood as a “living hell” and said her parents “putrid acts of torture” would haunt her forever o However, in sentencing this case Justice Huggett said it was an “impossible task” for a sentence to reflect the harm done to the victim (The Guardian, October 2016), and thus reflects an inability of the criminal justice system to fully reflect the damage done to the victim in sentencing v Subjective at times: o R v Tuala (2015) NSWCCA: Court deemed Anthony Cats’ victim impact statement could not be relied upon- lied and highly exaggerated v Inconsistent sentencing o Domestic violence offenders treated far more leniently despite growing pressure to have ‘the serious epidemic’ taken more seriously, according to a landmark analysis of NSW Court Data (SMH, February 2015) o Helen Brereton, execute officer of the Women’s Domestic Violence Advocacy Service, said sentences were inconsistent, giving victims little confidence in the system

Appeal System v Under the Crimes (Appeal and Review) Act 2001 (NSW), the victim and the accused have the right to appeal a sentence based on: o Appeal against Conviction: the Appellant argues did not commit offence found guilty o Sentence Appeal: appeal against the severity or leniency of a sentence § R v Loveridge [2014]- sentence of 7 years and 2 months with a non-parole period of 5 years and 2 months was appealed to the Criminal Court of Appeal by the prosecution after the leniency of the offence. After reassessment, Loveridge’s sentence was doubled to 13 years and 8 months with a non-parole period of 10 years and 2 months o Mistake of Fact: issue how evidence presented (mistaken or misunderstood) § R v Wood [2012] NSWCCA- evidence of an expert witness was found to be highly dubious, not factual and thus a mistake of fact and so it was appealed. Upon appeal, murder conviction was quashed since falsely convicted of imprisonment (error criminal justice system) v This allows the criminal justice system to allow to effectively achieve justice during errors within sentencing, especially through judicial discretion since some judges can give lenient or harsher sentences, which does not achieve justice for the victim or the accused

Non-Custodial Sentences v Non-custodial sentences are an important feature of the criminal justice system since they give the offender a chance to turn their lives around and be rehabilitated v Good Behaviour Bond: Compulsory conditions imposed on the offender for a period of time where they must undertake good behaviour for the bond period (up to 5 years). This allows

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other conditions e.g. family counselling, drug or alcohol rehabilitation. However, effectiveness dependent on an offender’s compliance and willingness to rehabilitate o As it stands in NSW, requires that an offender merely “be of good behaviour” and unsupervised. o “Court frees teens on bail over spree of armed robberies” (Herald Sun, November 2016) § Court heard that the teenager had been only three months into a 12-month good behaviour bond when he reoffended § 7-Eleven workers who says one of the gang held a gun to his head said he now feared for his life again § “I’m scared for my life, knowing they could come back and do it again” à inflicting with the rights and safety of victims and society Suspended Sentences: Imprisonment is suspended providing offender complies to good behaviour: o Suspended sentence has been declared a “serious failure” and have increased the prison population in NSW rather than keep offenders out (SMH, May 2014) à offenders breaching these sentences NSW BOSCAR 2014 Study found community service orders more effective than good behaviour bonds in discouraging criminal activities Meant to be diverting from imprisonment however don’t reduce reoffending Often victims are not satisfied since it does not reflect the impact of the crime on them...