University Foundation Studies Introduction to the Australian legal System 700216/900083 Task 2 – Court Report (2015.1) Assessment Task Weighting: 15% Due Date: 1st class of Week 8 Outcomes Assessed: 2, 4, 5 and 6 INSTRUCTIONS TO STUDENTS • Students will visit a court and compile a report as per the instructions in the attached hand out. • The court visit must take place after the 23rd February, 2015. • The task must be submitted electronically, through TURNITIN, by midnight before the 1st class of week 8. Failure to do so will attract a penalty of 10% per day • As well as electronic submission, a hard copy of the task is to be submitted to class teachers in the first 30 minutes of class time, during the first class of Week 8 • Any tasks that are more than 30 minutes late will attract a 10% penalty • Tasks must have a UWS College cover sheet attached which has been signed and dated by the student. Failure to do so will attract a 10% penalty per day. • Tasks must also be accompanied by a TURNITIN similarity index sheet. • Students should refer to the VUWS website for the marking criteria applicable to this assessment task. UWSCOLLEGE – Introduction to the Australian Legal System Topic 5: The Role of the Courts

Assessment Task 2 – Court Report (15%) TASK: View a court hearing within the NSW Court system and prepare a report based on your observations. You will need to make this visit in your own time due to time and travel constraints. The visit will not require a large amount of time, and with planning and preparation this can be successfully achieved. A number of sessions are running at any one time in the court. Choose a case from which you can obtain the most useful information. Local, District and Supreme courts in Australia are open to the public except in very unusual circumstances. There is an online registry of court listings found at: https://searchcourtlists.lawlink.nsw.gov.au/scm/search Each court has a Court Clerk, who can assist with information when you attend the courthouse. Other staff may be available to assist if you advise them that you are a student. Learning Outcomes:- 1. Define and use key legal terminology appropriately 2. Describe the structure and operation of the law making institutions in Australia 3. Locate, select, organise, analyse and synthesise legal information from a variety of sources including texts, media reports and case reports 4. Produce written text to explain, argue, discuss and report Report

Content: 1. Title page 2. Contents page 3. Introduction 4. Name the Court, the Presiding Officer (Magistrate/Judge) and the date of your visit. 5. Complete a detailed sketch of the courtroom AND label the sketch. 6. Identify the legal personnel in the courtroom. Describe in detail the role of the legal personnel you observe in the courtroom. 7. Describe in detail the behaviour, appearance and language of the legal personnel you observe in the courtroom. 8. Answer the following questions in relation to the case that you observed in the court room: a. Name the parties involved in the case b. Is this case a criminal or civil matter? c. Give a brief description of the facts of the case d. What type of case is it? (Is it a sentence, appeal, trial etc?) e. Did a lawyer represent the defendant or did they speak for themselves? f. Was a decision reached by the Magistrate/Judge? If so, what was the decision OR if a decision was NOT reached by the Magistrate/Judge what is to happen next in the case? g. Was this decision fair to all parties? Why/Why not? 9. Describe any difficulties you had in understanding the proceedings and suggest why you had these difficulties. 10. Conclusion 11. Bibliography Report style required: 1. A short introduction that shows an understanding of the task and how the task will be completed. 2. The main body of the report (numbered 4-9 above), should be written in formal academic English, with no dot point responses. The responses to individual sections of the task can be numbered. 3. A conclusion should briefly sum up the main findings of the task. 4. Correct referencing and quoting must be evident throughout the task. 5. Harvard style referencing should be used, where appropriate, (including in text referencing). 6. A correctly compiled and relevant bibliography should be included at the end of the report. 7. The report should be about 1250 words in length. The word count does not include the sketch. NB: Please consult the UWS Library website regarding correct Harvard style referencing and how to create a bibliography. Legal studies Part I of the Core – Crime 3. Criminal trial process court jurisdiction the adversary system legal personnel pleas, charge negotiation legal representation burden and standard of proof use of evidence defences to criminal charges the role of juries Court jurisdiction An important point for you to note is that the NSW Court system is hierarchical and therefore provides opportunities for appeal. Further, most criminal cases (both summary and indictable) begin in the Local Court, which deals with the vast majority of criminal cases in NSW. You should therefore deduce that the majority of criminal prosecutions in NSW each year are for summary offences and less serious indictable matters, which, on election, can be dealt with in the Local Court. A flow chart can be an effective way to demonstrate an understanding of the NSW court structure, with specific reference to what the question is asking. You should know the role of each court and where it fits into the hierarchy. Local Court: Most criminal cases begin here except ex-officio indictments. Presided over by Magistrate. No jury. Deals with summary matters and less serious indictable matters. No appellate jurisdiction. Does not hear appeals. Hears committal proceedings regarding serious matters, to determine whether a prima facie case exists, i.e. if there is sufficient evidence for the matter to be heard by a judge and jury. Children’s Court: Deals with offenders under 18 years or under 21 years if they were less than 18 years old when charged. A closed Court. Presided over by Magistrate. No jury. Rehabilitation is the primary purpose of sentencing. Imprisonment is a last resort. Coroners Court: Presided over by Coroner. Deals with unexplained deaths and fires. Inquisitional approach. District Court: Has appellate jurisdiction from the Local Court for both severity and de novo appeals, which is a type of appeal in which the appeals court holds a trial as if a prior trial had never been held. Presided over by a Judge. Trial by jury. Deals with majority of serious criminal offences e.g. armed robbery. Supreme Court: Has appellate jurisdiction from District Court and Local Court which includes stated case. Deals with error of law by Magistrates. Presided over by Judge. Trial by jury. Deals with most serious criminal offences e.g. murder, manslaughter. Court of Criminal Appeal: Has appellate jurisdiction from the District Court and Supreme Court, The highest criminal appeal Court in NSW. High Court: Highest appeal court in Australia for both criminal and civil matters. Leave by the court needs to be granted for the appeal to be heard. Leave usually reserved in criminal matters for: Existing areas of the law that require clarification e.g. R v Zecevic → High Court decision which clarified the law regarding self defence and precisely what had to be proved by the defence to establish self defence. New areas of the law, keeping in mind that the service of justice is an overriding factor in determining whether leave to appeal will be granted. Drug Court: A relatively new court. Established and governed by the Drug Court Act 1998 NSW Aims to tackle recidivist behaviour by bringing a more therapeutically focused approach to sentencing; by ensuring that drug dependant offenders receive treatment the court aims to break the cycle of addiction and crime. The court has both Local Court and District Court jurisdiction and operates from the Parramatta court complex, as accessibility is problematic for those offenders not from this region. An additional Drug Court was opened in Toronto in the Newcastle region in 2011. Youth Drug and Alcohol Court: Commenced as a pilot in Western Sydney in mid 2000. Is administered by the Children’s Court. Aims to rehabilitate young offenders whose addiction to drugs and or alcohol has led to a cycle of offending. Brings a multi agency response to providing support to young people, e.g. Juvenile Justice Officers work closely with health, housing, employment and education workers to assist young people at risk of offending to rebuild stable lives. Go To Top The adversary system A criminal trial or hearing takes place within the context of the adversary system, also referred to as the adversarial system, inherited from the British common law tradition. Under the adversary system of trial, there are two opposing parties, the prosecution and the defence. Both present evidence for determination by an independent third party. The independent third party depends on the court and will be a magistrate or judge and jury. The court ruling can be appealed. There are laws which govern the admission of evidence at trial, as well as the use of judicial discretion, by the magistrate or judge in relation to the admissibility of evidence. The prosecution and the defence determine the evidence which will be brought before the court for consideration in the criminal trial. This is in contrast to the inquisitorial system where the judge can play a more active role in determining areas for inquiry. A criticism of the adversarial system in the context of crime is that it can, arguably, reduce the court to a battleground where the focus becomes about winning and losing rather than revealing the truth about a specific set of facts which may or may not result in a criminal conviction. Specifically in the area of sexual assault cases, some commentators and victims’ rights groups have maintained that the adversarial nature of the court process which can, on occasion be characterised by aggressive cross-examination by opposing council, traumatises victims and perhaps acts as a deterrent to others in terms of reporting crimes as they may wish to avoid this cross examination process. The alternative view is that, as criminal charges involve serious consequences for the accused if proven, it is essential that all evidence be tested as rigorously as possible to ensure that the prosecution can prove their case beyond a reasonable doubt. Go To Top Legal personnel Magistrate, judge, police, prosecutor, Director of Public Prosecution, Public Defenders Magistrate: If the accused pleads not guilty, then the magistrate is the tribunal of fact and of law, no jury. The magistrate considers the evidence, rules on admissibility of evidence and points of law and oversees the conduct of the hearing. At the conclusion of the hearing, the Magistrate either acquits, or convicts and then proceeds to sentence the accused. If a plea of guilty is entered by the accused then the magistrate proceeds straight to the role of sentencing, discussed in more detail below. Additionally, the magistrate also fulfils a quasi-judicial function if a committal proceeding is held in the Local Court. Committal Proceedings are held if the accused has pleaded not guilty to an indictable (serious) criminal charge. These proceedings, presided over by a magistrate, determine whether or not a prima facie case exists, i.e. there is sufficient evidence in the prosecution case, brief of evidence, upon which a jury, properly instructed, could convict. If the magistrate finds, after consideration of the evidence submitted at the committal proceeding, that a prima facie case does exist, then the accused will be required to stand trial at a later date in a superior court, either the District or Supreme courts, depending on the severity of the alleged crime. Judge: In a defended matter, the judge is the tribunal of law. The judge’s role is to oversee the conduct of the trial, rule on admissibility of evidence and points of law and to instruct the jury on their role and relevant law, including, importantly, to instruct the jury at the conclusion of the trial prior to the jury retiring to consider their verdict. If a verdict of guilty is returned by the jury then the judge determines the sentence, usually at a later date. If a plea of guilty is entered by the accused then the judge proceeds straight to the role of sentencing, discussed in more detail below. Police: The role of police is to investigate alleged crimes and to gather evidence to support the prosecution case. Evidence must be gathered legally, otherwise there is a risk that a judge or magistrate will rule that the evidence is inadmissible. In summary, for minor matters police will liaise with witnesses and arrange, using a subpoena, for their attendance at court. Police also give evidence in court in support of the prosecution case. Prosecutors Prosecutors act on behalf of the state to prosecute the crime in court. You should remember that this is because a criminal act is one which harms society. Accordingly, prosecutors do not act on behalf of victims in the manner that defence lawyers act on behalf of their client, the accused. Prosecutors are officers of the court and owe a duty to the court to act in an ethical manner. Their role is to present evidence and argument to the court in support of the prosecution case both at first instance and on appeal. It is also part of their role to conduct any relevant negotiations with the defence, e.g. charge negotiation. In the Local Court the prosecution of summary matters and less serious indictable matters which, on election, are dealt with summarily is undertaken by the police prosecutor who is a member of the Police Force with legal training. Indictable matters are prosecuted by the Director of Public Prosecutions. Director of Public Prosecutions (DPP) The DPP is independent of the police and the government. The DPP is responsible for the carriage of indictable matters. This includes running Committal Proceedings in the Local Court as well as trials in the District and Supreme Court. A decision has to be made by the State as to whether a prosecution should proceed. In general terms, this will depend upon whether the prosecution can be satisfied that a matter will likely succeed in the courts. You should bear in mind that the State’s financial resources are limited and hence it is neither possible nor desirable that every alleged crime be investigated and prosecuted. The DPP also has the carriage of any appeal in relation to an indictable matter, whether as respondent or appellant. Following legislative reform by the NSW government, the head of the DPP is now subject to a fixed 10 year term. You should familiarise yourselves with the DPP website as it is a very useful resource www.odpp.nsw.gov.au (external website) Public Defenders / Defence Lawyers: Like prosecutors, defence lawyers, both solicitors and barristers, are officers of the Court and owe a duty to the Court to act in an ethical manner. They must also act in accordance with their client’s (the accused) instructions and maintain client confidentiality. The defence lawyer’s role is to present evidence and argument to the court in support of the defence case both at first instance and on appeal. Usually solicitors appear primarily in Local Court proceedings, although barristers can and do as well. Barristers, as specialist advocates, appear for the defence in more complex and serious criminal matters in the District Court, Supreme Court, Court of Criminal Appeal and High Court. It is also part of their role to conduct any relevant negotiations with the prosecution, e.g. charge negotiation. The public defenders operate independently of government. Their role is to represent people who have been granted legal aid in serious criminal matters. Accordingly, they play an important role in ensuring that justice is accessible to people who suffer economic advantage. Go To Top Pleas, charge negotiation An accused must enter a plea of either guilty or not guilty. If they refuse to enter a plea then it will be taken by the court to be a plea of not guilty. If the charge is an indictable, meaning serious, matter then the accused will not be required to enter a plea until such time as the prosecution has served a brief of evidence containing statements from prosecution witnesses and other documentary evidence, such as drug analysis results, on the accused. The accused is entitled to adequate time to consider this evidence and obtain legal advice before entering a plea. If a plea of guilty is entered, the accused is sentenced. The accused may or may not be remanded in custody during that time, dependent on the severity of the offence. The severity of the offence will determine which court, Local, District or Supreme, imposes the sentence. If a plea of not guilty is entered the matter proceeds to a defended hearing. This will be in the Local Court for summary matters and some less serious indictable matters which may, on election, be heard in the Local Court. For serious indictable matters, a committal proceeding is held in the Local Court to establish not guilt or innocence, but to determine that there is a case to answer; this is known as a prima facie case. If, following the conclusion of the committal proceeding, the magistrate does not find that a prima facie case exists, the charge is dismissed. If a prima facie case is found to exist then the accused is committed to stand trial at a later date in either the District Court or Supreme Court, depending upon the severity of the offence. You should also be familiar with charge negotiation. Following negotiations between the prosecution and defence, in some cases the accused may agree to plead guilty to a lesser charge e.g. assault occasioning actual bodily harm becomes assault, or to the same charge but with the facts changed in some respect. For example the accused may agree that he shoved but not punched the victim, so by consent, the reference to the punch is removed from the facts which the magistrate will consider on sentence. Alternatively, the accused may agree to some but not all charges, on the basis that the remaining charges will not be proceeded with. It is important to consider fully the ramifications of this process. How does it impact upon the victim, the accused and society in general, including the issue of resource efficiency? Go To Top Legal representation, including Legal Aid In NSW the Legal Aid Commission plays a vital role in facilitating access to justice. Defendants have a right to a fair trial and legal representation is integral to this. You should remember, however, that defendants do not have an absolute right to legal representation. They do, however, have an implied right; see the High Courts’ decision in Dietrich v R 1992. The implication, particularly in serious criminal cases, is that there is a strong risk that the accused will not receive a fair trial without legal representation. Legal Aid is funded by the government. It is necessary for Legal Aid to apply selection criteria to determine whether an applicant qualifies for Legal Aid. The majority of the state government’s law and order budget is spent in order of cost; on policing, then the courts and then corrective services. The general selection criteria for Legal Aid are: Means: income and asset test. Merit: does the matter have a reasonable prospect of success? Jurisdiction: is the case of a type that Legal Aid can fund? So far as criminal law is concerned, the merit test for Legal Aid does not apply to criminal matters in the first instance. However Legal Aid is available for matters that are referred on to the Court of Criminal Appeal where there is a reasonable chance of getting a conviction overturned or a reduction in the sentence. This reflects the defendant’s right to the presumption of innocence and a fair trial that removes inequality from the system. The means test does not apply for matters both criminal and child welfare proceedings in the Children’s Court. This is because the vulnerable position of children and young person’s are recognised by the state by routinely providing them with legal representation. A problematic aspect of the granting of Legal Aid in criminal matters and civil cases is that, if the means test applies, its low threshold rules out many people who still cannot afford to meet the costs of paying for legal representation. You should consider how this would impact upon the ability of such people to obtain a fair trial. Consider the impact if Legal Aid was not available and this impact on being able to get a fair trial. Some significant cases are also dealt with on pro bono, where the accused or defendant in civil cases cannot afford to pay. Go To Top Burden and standard of proof The prosecution has the burden of proof in a criminal hearing. You should remember that a criminal hearing involves a prosecution by the State and that the accused is entitled to the presumption of innocence. The standard of proof is beyond a reasonable doubt. This higher standard, when compared to civil matters, reflects the fact that the accused clearly has more at stake in a criminal trial. Go To Top Use of evidence, including witnesses Witnesses are central to the provision of evidence in both the prosecution and defence case. Witnesses must be sworn in before giving evidence, either by making an oath or affirmation. While witnesses will have given prior written statements to the police, it is a requirement in a criminal trial that evidence in-chief be given orally. Thereafter, witnesses are cross-examined by opposing counsel with the aim of testing the truth of their evidence. Any inconsistencies in witness evidence between the accounts given under oath during a criminal trial and previously in a written statement to police can provide a rich field for defence counsel to pursue in cross examination. Note: the defence will have had prior access to the prosecution witness written statements, as they would have been served on the defence as part of the prosecution’s Brief of Evidence. Special rules govern the provision of evidence by child victims in sexual assault cases. Such evidence may be given via CCTV to save the child the trauma of having to confront the alleged perpetrator in a courtroom. Go To Top Defences to criminal charges Defences operate to justify the accused’s actions and therefore either remove or reduce, as a partial defence, their criminal culpability. If you think about the essential elements of a crime, which are being consciously involved in prohibited conduct you will note that specific defences, if proven, operate to remove one of these two elements, thus precluding the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence removes the mens rea element, as if proven; clearly the accused’s intention was to defend themselves or a third party and not to commit the crime. A crime is an act or omission that harms society that is punishable by the state. Accordingly, it is entirely just that if an accused has a justifiable reason for their behaviour they should not be sanctioned by the state, or at least in the interests of justice they should receive a lesser sentence in the event of a partial defence (to murder) being established. With reference to strict liability offences, such as speeding, that do not require that intent is proved, then they can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to strict liability offences. Defence is of two broad types: Complete defence, which if proven results in acquittal. Partial defences only apply to the crime of murder, and do not result in acquittal; rather, the accused is convicted of the lesser charge of manslaughter. It is important to note that partial defences do not apply to lesser charges such as assault. Accordingly, if an assault is provoked, the provocation will be a mitigating factor, for the judge or magistrate to consider on sentence, but it does not entitle the accused to an acquittal. Complete defences are: Mental Illness: The onus of proving defence on the defendant on the balance of probability. A key case is a 19th century English case of McNaughten (1843) which established the test for proving insanity. The defence must prove that the defendant did not understand ‘the nature and quality’ of their act due to their diseased mind. Accordingly, the defence must prove that the defendant did not know what they were doing and/or that the defendant knew what they were doing but didn’t understand that it was wrong. It could be difficult for a defendant to prove the requisite level of mental illness to satisfy this test. This led to legislative reform in NSW in 1974 and the creation of the partial defence of diminished responsibility. More on this later. If proven, this defence results in the accused being acquitted. This is because the law does not hold people who suffer severe mental illness, responsible for their actions. However, they are not free to go. Instead they are held in a mental institution. The length of the defendant’s stay in the mental institution is indefinite and could well be much longer than the gaol sentence they might have received if they had been proven guilty of the crime. Self Defence: The onus of proving that the accused did not act in self defence, if the defence is raised, is on the prosecution (Crimes Act 1900 NSW Division 3). The leading case is the decision of the High Court in Zecevic (1987). The defendant must prove that they believed (subjective) upon reasonable grounds (objective) that it was necessary in self defence to do what they did either in defence of self, their property or third party. Self defence is now codified in the Crimes Act 1900 (NSW) Division 3. If proven, it results in the accused being acquitted because the law has been satisfied that the defendant’s actions were justified. Necessity: The onus of proving the defence on the defendant. The defendant must prove that the crime was committed only to prevent the commission of a more serious crime. The defendant must genuinely believe that their actions were necessary and they must not be out of proportion to the harm that they were trying to avoid occurring. Only operates when other defences do not apply. Duress: The onus of proving defence on the defendant. The defendant must prove that they committed the crime against their own free will and did so because of a genuine threat or intimidation. For example, their own or someone else’s life was in peril. Cannot apply to murder or manslaughter. Consent: The onus of proving defence on the defendant. A victim cannot consent to murder or the infliction of grievous bodily harm; therefore this defence cannot be raised in relation to some offences such as murder. Is most commonly raised in sexual assault cases; the term assault implies an absence of consent. Partial defences to murder These operate to mitigate, although not excuse or justify the defendant’s behaviour and, if proven, result in the defendant being convicted of the lesser offence of manslaughter. Provocation: The onus of proving defence is on the defendant. Must prove that their actions were directly provoked by the victim on an objective test, i.e. that the victim’s actions would have caused any reasonable person to act in a like manner. Substantial Impairment of Responsibility This is also known as diminished responsibility. The onus of proving defence is on the defendant. If it is a statutory defence, the defendant must prove that they were suffering from an ‘abnormality of the mind’ at the time of the offence which ‘substantially impaired their mental responsibility’. This defence cannot be relied upon to excuse the accused if they were under the influence of alcohol or other mind altering drugs. Go To Top The role of juries, including verdicts The jury is the tribunal of fact. As such it is the jury’s role to consider carefully the evidence presented at a criminal trial to determine guilt or innocence based upon the evidence presented at trial. You should be aware that jury trials are not available in the Local Court. The jury determines whether a verdict of guilty or not guilty is reached. The jury does not play a role in determining the sentence. In 2006, the NSW Law Reform Commission issued a discussion paper (external website) (Issues Paper 27) in relation to the possibility of juries playing a role in the sentencing process. Jurors are randomly selected from the electoral role in accordance with the provisions of the Jury Act 1977 (NSW). The process of selecting a jury is known as empanelling. The prosecution and defense may challenge a particular juror’s selection. There are two types of challenge: Pre-emptory to limit of 3, no reason need be given. Cause, unlimited, must offer a reason. Jurors are sworn in by oath or affirmation. If a jury cannot reach a decision it is known as a hung jury. A retrial may or may not occur. Prior to 2006 a jury’s decision had to be unanimous. From May 2006 in NSW majority verdicts of 11:1 or 10:1, were allowed, after a reasonable time for deliberation (not less than eight hours) and where the Court is satisfied that it is unlikely the jury will reach a unanimous verdict. You should note that majority verdicts are not allowed in Queensland or the ACT. They apply in all other Australian states and in the Northern Territory. They do not apply anywhere in Australia for offences against Commonwealth laws due to Section 80 of the Constitution. You should be aware of the arguments for and against majority verdicts and against the use of juries more generally. Go To Top Part 3 Review Questions: List the different courts and describe the types of cases that each court hears. Identify some specific circumstances where matters are moved from one court to another. Explain why this occurs. Clarify the differences between the adversary system and the inquisitional system. Assess which system is the most just. Summarize the role of the police, magistrates and judges, prosecutors, Direct of Public Prosecutions (DPP), barristers and solicitors (including public defender) and the accused. Explain the role and purpose of legal representation in the criminal trial process. Examine defences to criminal charge, include complete and partial defenses to murder. Discuss the relationship between the burden of proof and standard of proof. Analyse the implications of burden of proof on the obligation of the State persecutor to prove the accused guilty beyond reasonable doubt. Explain the impact of this requirement on the court system. Evaluate the advantages and disadvantages of the jury system. Discuss whether the criminal trial process is an effective means of achieving justice. Back. (i will send the rest of the court notice informations later in the day today)

 

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