Crime

• Accessibility/ right to legal representation

  • Cuts to Legal Aid – less represented, inequality, court backlogs
• Adversarial system of trial

  Two opposing sides responsible for presenting their case to an impartial court
• Court delays/ backlog


  Denial of justice for accused/ victims
• Resource efficiency measures


  Early plea discounts, charge negotiation, jury reform, ending of committal hearings
• Attempts to improve trial process for victims

  • Sexual assault trials reforms, charge negotiation changes
• Rules of criminal evidence and trial procedures

  Attempt to balance rights of the accused with those of the community (and the victim)
• Original jurisdiction


  Court's power to hear a case for the first time
• Appellate jurisdiction


  Court's power to hear an appeal from a lower court's decision
• We have a court hierarchy to allow appeals
• Local Court


  First point of call for most criminal matters in NSW (95% of criminal cases commence here), original jurisdiction to deal with summary offences and indictable offences triable summarily, no appellate jurisdiction, limits on sentences it can impose, matters heard by a magistrate without a jury, also conducts bail proceedings, cases usually processed faster with less expense
• Before 2018, local courts held a committal hearing to establish whether there was sufficient prima facie evidence for an indictable offence to be heard in a higher court
• Since 2018, under an amendment to the Criminal Procedures Act 1986 (NSW), committal hearings have essentially been replaced with charge certification and case conferencing
• Charge certification and case conferencing

  A senior prosecutor reviews the brief of evidence and decides whether the case will proceed, if so a charge certificate is filed and a case conference is held involving the magistrate, prosecution and defence to agree on a set of facts, the accused must then enter a plea of guilty or not guilty
• The main reason cited by the government for these changes is to reduce court delays and improve productivity and ensure that indictable cases are effectively managed
• Concerns with the changes are that the rights of the accused are diminished as they no longer have the right to test the strength of the case against them before a serious indictable matter proceeds to a higher court
• Coroner's Court


  Presided over by a coroner, using an inquisitorial approach, investigates the cause and manner of a person's suspicious death, or if violent death, after an accident, in police custody, while receiving medical care, or unknown cause, investigates fires and explosions where property has been damaged or a person has been injured, may refer matter to the DPP for court trial, may recommend NSW Government make changes to practices or policies
• In the Kathleen Folbigg case, her solicitor said police should not have charged her client in the first place, given there was no forensic evidence she harmed her children, and that a full coronial inquest into the children's deaths would have been more appropriate
• Children's Court


  Specialised court dealing with criminal matters involving young offenders (under 18 at time of alleged offence) except for homicide, aggravated sexual assault and some traffic offences, presided over by a magistrate (no jury) with specialised training in children's matters, focus is on rehabilitation so sentences are different to adults and reflect this
• District Court


  A trial court where matters can be heard before a judge and a jury, has appellate jurisdiction to hear appeals of decisions made by lower courts, hears majority of indictable (serious) offences except for the most serious crimes like murder or treason, processes are more formal than the Local Court, take longer and at a greater cost
• Supreme Court


  Hears the most serious criminal matters, like murder, manslaughter and attempted murder, & major conspiracy and drug-related charges, case heard by judge and jury, also hears applications to review a decision by a Magistrate to refuse bail
• Court of Criminal Appeal


  Appellate branch of Supreme Court and the state's highest court, can hear appeals from the District or Supreme Courts, the purpose of an appeal is to correct an unjust decision perceived by one of the adversarial sides, grounds for appeal may include a question of law, question of fact or a challenge to the severity or inadequacy of a sentence
• High Court


  Highest court of appeal for criminal cases in Australia, has appellate jurisdiction for state and territory courts, a preliminary hearing is required to decide whether there is good reason for the appeal to be heard in the High Court, there are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia
• Adversary system of trial

  Australia's criminal justice system is based on this, involves two opposing sides responsible for presenting their case to an impartial court, the judge or jury hears the evidence presented by the parties and comes to a conclusion, different from an inquisitorial system of trial
• Adversarial trial process


  Two opposing sides present their case to an impartial judge and/or jury and attempt to disprove the other side's version of events, each side can test the other side's witnesses through examination-in-chief, cross-examination and re-examination
• Advantages of the adversarial trial

  • Allows equal opportunities for P & D to present their evidence & test the opposing side's evidence through cross-examination, in order to win their case, less prone to bias by judge if jury is determining case, plus more likely to reflect community values with 12 citizens on jury, strict rules of evidence (e.g. hearsay, opinion, relevance) ensuring fairer process
• Disadvantages of the adversarial trial

  • Imbalance in resources, skills and knowledge of the opposing sides (unequal access), cuts to legal aid have reduced chances of equality of representation, high standard of proof and rules of evidence make it less likely to 'arrive at the truth', victims may be subject to unfair cross-examination, only sentencing process, not trial, considers the accused's past record, judge/jury unable to request additional evidence or testimony that may assist in seeking justice, juries are less used today (less than 1% of all criminal cases)
• Magistrates


  Preside over hearings in the Local Court, and specialised magistrates hear cases in the Children's Court, in criminal law they will hear summary proceedings in the Local Court, as well as indictable offences triable summarily, and committal hearings, oversees trial and makes determination on basis of evidence presented, once found guilty, the magistrate passes sentence
• Judges


  Preside over the District Court and Supreme Courts, in criminal matters they hear indictable offences, as well as indictable offences triable summarily where the accused has elected to have the matter heard by a judge and jury, judge will make decisions about point of law and instruct jury, also hear cases on appeal from lower courts, sentence hearing at later date
• Solicitors


  Spend most of their time out of court and are involved in the day-to-day legal affairs of their clients, can appear on behalf of their client in the Local Court while more commonly they will engage a barrister in the higher court hearings to conduct their case
• Barristers


  Spend most of their time in court, primarily appearing in Court applications and trials, also provide advice for the accused on the likely outcome of the case
• Public Defenders


  Barristers who may appear in serious criminal matters (in District or Supreme Court) to represent an accused who has been granted Legal Aid, independent of the government and may be briefed by a private solicitor
• Prosecutors


  Represent the state in a criminal matter and is conducted on behalf of the Queen, brings the action against the accused in court, seeks to gain a conviction using evidence gathered by the police, and an appropriate sentence for the offence, in less serious matters in the Local Court prosecutors may be police prosecutors, in more serious matters the Director of Public Prosecutions will be responsible for pursuing the case
• Former DPP Cowdery has argued that the DPP should take over all prosecutions, as often police prosecutors are 'ineffective and expensive', this would ensure "a more just outcome and resource efficiency"
• DPP deliberations/ use of discretion

  First, they need to show a prima facie case, proving the elements of the offence "on the admissible evidence", second, they needed to judge whether there was a reasonable chance of a conviction (merit), finally, even if there were a reasonable chance, prosecutors must consider whether it was "in the general public interest" not to proceed
• The problem is that the coroner can act on any information the coroner thinks is appropriate to come to their decision, including usually a whole lot of material that is not necessarily able to be proved in a criminal case, such as second-hand hearsay and rumour and unsourced reports
• When the matter's referred to the DPP, the DPP has to start again and apply the legal test of admissibility of evidence in a criminal proceeding
• Cowdery: '"Let my accuser come face to face and justify his charge against me."'
• Prosecutors must consider whether it was "in the general public interest" not to proceed
• Cowdery says it is the point about "admissible evidence" that can sometimes show the gulf between coronial findings and what is a likely verdict in a criminal case
• The coroner can act on any information the coroner thinks is appropriate to come to his or her decision