Lesson 02 Trial Procedure and Classification of Offences PDF

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📱L2 Trial Procedure andClassification of OffencesEric Colvin, John McKechnie and Elizabeth Greene, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 9th ed, 2021)Chapter 27 and 28 Chapter 1 1 - 1.Historical Categorisation of OffencesEnglish offences cou...

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L2 Trial Procedure and Classification of Offences Eric Colvin, John McKechnie and Elizabeth Greene, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 9th ed, 2021) Chapter 27 and 28 Chapter 1 1.24 - 1.26

Historical Categorisation of Offences English offences could be either summary or indictable offences. Indictable offences required many more procedures In England, indictable offences were sub-divided into crimes and misdemeanours, depending on whether the indicatable offence was a capital offence.

Classification of Commonwealth Offences - Crimes Act 1914 (Cth)

s 4G Indictable Offences Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears s 4H Summary Offences Offences against a law of the Commonwealth, being offences which: (a) are punishable by imprisonment for a period not exceeding 12 months; or (b) are not punishable by imprisonment; are summary offences, unless the contrary intention appears. s 4J Certain indictable offences may be dealt with summarily (1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction. (4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000. 4JA Some indictable offences punishable by fine only may be dealt with summarily (1) A court of summary jurisdiction may hear and determine an indictable offence if: (a) the offence is not punishable by imprisonment; and (b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and (c) the defendant and prosecution consent.

Historical Classification in WA Prior to 2004, WA classification was similar to the English approach. Simple offences were dealt with summarily, ‘misdemeanours’ and ‘crimes’ were dealt with an indictment.

Contemporary Classification in WA (Post 2004) Interpretation Act 1984 (WA) s 5 Indicatable offence has the meaning given by s 67 s 5 Simple offence has the meaning given by s 67 s 67(1a) An offence designated as a crime or as a misdemeanour is an indictable offence (2) An offence not otherwise designated is a simple offence. (3) The procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA). Criminal Procedure Act 2004 (WA) s 3 indictable offence means a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily; simple offence means an offence that is not an indictable offence; either way charge means an indictable charge that, by virtue of The Criminal Code section5, or another written law, may be tried either on indictment or summarily.

Criminal Jurisdictions of WA Courts Magistrates Court Magistrates try all questions of fact and law without a jury. For offences beyond the magistrates jurisdiction, the Magistrate makes an order that the offence be tried on indictment in the District or Supreme Court. Magistrates Courts have jurisdiction in respect of simple and regulatory offences; Magistrates Court Act 2004 (WA) s 11. Many indictable offences can or must be tried summarily under some circumstances: Criminal Code (WA) s 5; Criminal Procedure Act 2004 (WA) s 40. Magistrates Court Act 2004 (WA) s 11

(2) The Court has jurisdiction — (a) to hear and determine a charge of a simple offence; and (b) to hear and determine a charge of an indictable offence that can be dealt with summarily; and (c) to commit a person charged with an indictable offence that is to be dealt with on indictment to the District Court or the Supreme Court for trial or sentence; and (d) to commit a person charged with an indictable offence that is to be dealt with summarily to the District Court or the Supreme Court for sentence; and (e) to deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction.

District Court Most serious offences are tried in the District Court before a judge and jury, however some offences such as murder are tried in the Supreme Court. Commonwealth offences tried on indictment must be before a judge and jury as mandated by the Constitution s 80. The District Court has extensive but limited jurisdiction over indictable offences, the limitation being related to the maximum penalty for an offence. The jurisdiction of the District Court extends to all offences except for those for which the maximum penalty is life imprisonment; District Court Act 1969 (WA) s 42(1). District Court Act 1969 (WA) s 42(2) The Court does not have jurisdiction to try an accused person charged with an indictable offence that is— (a) a crime under The Criminal Code section279, 280, 283, 288 or 290; or (b) an offence, or offence of a class, prescribed in the regulations.

Supreme Court The Supreme Court has unlimited jurisdiction over all indictable offences. The same powers as English courts: Supreme Court Act 1935 (WA)

Criminal Procedures in Western Australia

Infringement Notices Some offences can be dealt with by the issuing of an infringement notice, thus avoiding a court hearing. Criminal Procedures Act 2004 (WA) Part 2 refers. Regulations may prescribe infringements, but cannot apply to offences which have imprisonment as as penalty: s 5(2) s 9 Form and content of infringement notices No criminal record if you accept an infringement notice (criminal) Has to be backed by reasonable suspicion and reasonable belief, i.e., supportable objective facts. Must be issued within 21 days of the offence.

Initiation of Proceedings Commonwealth criminal charges are prosecuted in state courts using the procedure applicable in that state: Judiciary Act 1903 (Cth) s 68. Prosecutions are are commenced by means of a prosecution notice: Criminal Procedure Act 2004 (WA) s 21(3). The Criminal Procedure Act 2004 (WA) s 22 allows prosecutions to be commenced in any court which has jurisdiction over the person, irrespective of its ability to finalise the matter, hence all prosecutions are commenced in the Magistrates Court.

Prosecution of Offences 1. The accused is issued with a court hearing notice (simple offences) Criminal Procedure Act 2004 (WA) s 33) or a summons (indictable offences) Criminal Procedure Act 2004 (WA) s 32 if they are not already in custody or arrested under warrant: Criminal Procedure Act 2004 (WA) s 28 2. A prosecution notice is then lodged with the Magistrates Court: Criminal Procedure Act 2004 (WA) s 24 and disclosure occurs. Section 23 of the Criminal Procedure Act 2004 (WA) details the content.

Summary Proceedings (Magistrates Court)

The accused is given an opportunity to plead to the charge - guilty or not guilty: Criminal Procedure Act 2004 (WA) s 59. If the accused pleads guilty they then sentenced. If they plead not guilty the matter will be set down for trial: Criminal Procedure Act 2004 (WA) Part 5 details the trial procedure and the pleas available are listed under Criminal Procedure Act 2004 (WA) s 126. The Magistrates Court can adjourn a charge for any good reason including obtaining the services of an interpreter or to allow time for the accused to consider the prosecution notice or obtain legal advice. The Court will issue a court hearing notice, summons or approved notice with the new date to the accused: Criminal Procedure Act 2004 (WA) s 75. If an accused does not attend Court, the prosecutor can make an application that they be convicted in their absence, and the Court can convict them in their absence provided they are satisfied they were served with the prosecution notice and court hearing notice/summons. The Statement of Material Facts are taken as proven and read, and then they are sentenced: Criminal Procedure Act 2004 (WA) s 55. An application can be made to set the conviction aside: Criminal Procedure Act 2004 (WA) s 71. If convicted a Notice of Conviction is provided which records the charges and the sentence imposed. No reasons are given: Criminal Procedure Act 2004 (WA) s 69. Trial on the papers for a summary offence: Subject to prosecutor and accused agreeing they can agree to lodge documents and if the Court agrees, the matter can be tried on the papers: Criminal Procedure Act 2004 (WA) s 66. They can each be heard and make submissions to the Court regarding the charges.

Indictable Procedures - Magistrate Court With indictable charges the accused is not required to plead to the charge, but may do so: Criminal Procedure Act 2004 (WA) s 41. If a guilty plea is entered (not an either way offence) the matter is committed to superior court. The plea is not accepted by the magistrate. If on indictable charge the accused chooses not to plead or makes any other plea, the matter is adjourned to a disclosure/committal hearing: Criminal Procedure Act 2004 (WA) s 41.

Indictable Procedures - Disclosure/Committal Hearing

The purpose of the disclosure/committal hearing is to ensure that all disclosure has occurred prior to the matter going to the appropriate court for trial. By virtue of a Practice Direction the matter is adjourned to a Police Committal Mention date in the relevant Court. The police will deal with disclosure until the matter can be reviewed by the DPP. The matter will proceed to a Committal Mention List after conduct has been transferred to the DPP. Once this has occurred, the matter is committed for trial in the appropriate court: Criminal Procedure Act 2004 (WA) s 45.

Indictable Procedures - Application to dispense with disclosure The accused, prosecutor or the Court on its own initiative can make an application for the Court to make an order to dispense with all or part of a disclosure requirement if there is a good reason to do so and no miscarriage of justice will result or shorten or extend the time to obey with a requirement. The prosecutor can make an application in the absence of the accused. If the application is successful, the order is not to be given to the accused and the matter not dealt with in open Court: Criminal Procedure Act 2004 (WA) s 138.

Indictable Procedures - After Committal Prosecution in the higher court is commenced by indictment: Criminal Procedure Act 2004 (WA) s 83. An ex-officio (without a committal hearing or following a committal proceeding where the accused has not been committed to trial) indictment can be lodged: Criminal Procedure Act 2004 (WA) s 83(6). An indictment is an official document with a prescribe form, that is lodged with the Court. The Criminal Procedure Act 2004 (WA) s 85 details the prescribed format. An accused may be required to plead on the charge (indictment) by the Court any time after the indictment is presented: Criminal Procedure Act 2004 (WA) s 91.

Pre-Trail Procedure The defence must disclose alibi or expert evidence and the list of witnesses it will call prior to the commencement of the trial within 14 days for summary offences: Criminal Procedure Act 2004 (WA) s 62 and for indictable offences within a prescribed period: Criminal Procedure Act 2004 (WA) s 96. If the

defence does not disclose the trial could be adjourned Criminal Procedure Act 2004 (WA) s 63 and 97.

Proceedings at Trail The accused, irrespective of any previous pleadings, must plead to the charge at the commencement of the trial: Criminal Procedure Act 2004 (WA) s 142. The prosecutor commences their opening after the jury is sworn in. The accused can give their opening address after the prosecutor, or if they intend to call evidence after the close of the prosecutor’s case: Criminal Procedure Act 2004 (WA) s 143. The accused is entitled to cross-examine each prosecution witness and to call and examine, and re-examine any defence witnesses. Post the prosecution case, the accused can elect to give evidence. If they do, they must give their evidence first before calling other witnesses, unless the Court allows otherwise: Criminal Procedure Act 2004 (WA) s 144. The prosecutor can give a closing address and the accused can then give a closing address. If an accused’s counsel in closing suggests a fact in issue is not supported by evidence, the prosecutor is given a right of reply: Criminal Procedure Act 2004 (WA) s 145.

Amending Charges The accused, prosecutor or the Court on its own initiative may amend a charge either before or during a trial. If one charge alleges multiple offences, the Court can amend the prosecution notice or indictment so that it lists both offences. If the Court amends the charge, prosecution notice or indictment the prosecutor and accused are to be given a copy. If it prejudices defence, it can be adjourned. If it is mid-trial, the entire matter can continue, or just the additional charge can be adjourned and the rest of the matter continue. The Court can refuse the amendment if it will prejudice defence case and an adjournment would not rectify the prejudice: Criminal Procedure Act 2004 (WA) s 132.

Remitting Charges to the Magistrate’s Court The accused or an authorised officer (generally prosecutor) can apply to remit a charge back to the Magistrate’s Court if it was committed to the

District Court. The Court can remit the charge if it was committed in error, proceedings in the lower Court had to occur and were not completed or for any other good reason: Criminal Procedure Act 2004 (WA) s 86A.

Discontinuing a Prosecution The prosecutor can discontinue a summary charge if no evidence has yet been adduced. The Court can consent to the discontinuance unless it is of the view it will be an abuse of process: Criminal Procedure Act 2004 (WA) s 25. The discontinuance is not an acquittal and the accused can be charged at a latter date for the same offence: Criminal Procedure Act 2004 (WA) s 79. The prosecutor can discontinue an indictable charge if the indictment has not yet been filed and the charge is committed to a superior Court by filing a notice of discontinuance. The prosecutor cannot do if they were convicted on charge in a lower Court (on a notice). The Court can consent or refuse to consent to the discontinuance. The accused must be discharged but can be charged later for the same offence: Criminal Procedure Act 2004 (WA) s 87.

Stay of Proceedings The Court can order a prosecution be stayed if it is an abuse of the Court’s process: In respect to summary charges Criminal Procedure Act 2004 (WA) s 76 refers and to indictable charges. The Court can discharge the accused from the charge and make orders as it sees fit, including in relation to bail. A stay was granted in Le v The Queen [2019] WADC 11 (permanent) and R v Brown [2013] QSC 299 (temporarily).

Awarding of Costs A successful party in the Magistrate’s Court is entitled to their costs in a prosecution. If an accused is convicted, the Court may order the accused pay part or all of the prosecution’s costs: Criminal Procedure Act 2004 (WA) s 67. The amount can be reduced if work that was unnecessary was conducted. The costs awarded are usually at scale. The costs are not recoverable on a charge on indictment in a superior Court and only apply to charges brought and prosecuted in the Magistrate’s Court

Prosecutions Against Corporations A corporation can appoint a representative to appear in Court, it does not have to be a lawyer. The representative is appointed under the seal of the

corporation or a certificate (usually signed by a Director): Criminal Procedure Act 2004 (WA) s 152. The representative acts as the accused: Criminal Procedure Act 2004 (WA) s 153. If the representative of the corporation does not enter a guilty plea or the Court does not receive a plea in writing by the corporation under Criminal Procedure Act 2004 (WA) s 154 the Court is to enter a not guilty plea on behalf of the corporation. The Court can compel a corporation to provide a representative, by issuing an approved notice. If the corporation does not comply it can be fined up to$60,000: Criminal Procedure Act 2004 (WA) s 155.

Cases of Note - Trial by Judge Alone State of Western Australia v Rayney [2011] WASC 326 Application by the accused for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). Consider the complexity and length of the trial is not such as to be a burden on a jury. Considered the pre-trial publicity and the prejudicial nature of the announcement by Detective Senior Sergeant Lee. Held that the announcement by Detective Senior Sergeant Lee and the accused response potentially heightened the prejudice against him. Countervailing public interest factor. Concluded in the interests of justice that there be a trial by judge alone. State of Western Australia v Edwards [2018] WASC 419 State applied for an trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). This was supported by the accused, the respondent. The length of the trial; nature of the evidence to be adduced at trial, technical or complex nature of the expert evidence, pre-trial publicity. Result being an order for trial by judge alone....