Flashcards in The Courtroom Deck (57)
What is bail?
Bail is the release of an accused person from legal custody on the understanding that he or she will appear at their hearing or trial.
By whom and where can bail be granted?
Bail can be granted at various stages of the criminal process, such as at the time of the arrest, during the trial and while awaiting sentencing or an appeal. A senior police officer, a bail justice or a court can grant bail, if the person isn't a threat to the community until the case trial.
As a general rule, every person is entitled to bail, however bail may be refused if a person
is determined to not meet the criteria for bail, then the person must remain in police custody or taken to next available court sitting. Bail may be refused where the accused is:
- accused is charged with murder or treason
- charged with drug trafficking
- already in custody for another crime
- considered to pose an unacceptable risk to society or is likely to abscond (flee), commit an offence while on bail, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice in relate to themselves or others.
By looking at the accused's past history, character, home environment, possible hardships that might be caused, should be considered when granting bail.
A court can refuse bail, if the person has been charged with what following offences?
- an indictable offence that's been committed by accused, while on trial of another indictable offence
- stalking or family violence offence, and been convicted of offence in last 10 years
- aggravated burglary, or other indictable offence involving accused using a firearm, offensive weapon or explosive
- arson causing death
- drug offences
What happens if bail is refused?
The defendant will be held on remand until the case some to trail or until bail is granted.
What does plea/charge bargaining involve?
Involves agreements being made between the accused and the prosecutor, on an informal basis, about the charges to be laid. This may lead to some charges being dropped in exchange for a guilty plea to the main charges or in exchange for evidence being given.
What is an advantage to the plea bargaining?
It includes reducing delays and court time, but may lead to innocent people being pressured into pleading guilty for a lighter sentence.
What is meant by police discretionary powers?
It's the decision making power that's provided to police officers, which allows them to decide if they want to pursue police procedure or simply let someone off with a warning.
What is a mention court?
A mention court, is a court that initially has an accused appear when being trials for an indictable offence heard summarily or a summary offence, in the Magistrates' court.
It's matters that are heard in the magistrates' court That go through the procedure called hearing (judicial examination of a case reaching a decision in a court of summary jurisdiction presided over by a magistrate). Before the hearing, the prosecutor will give the accused a preliminary brief and if the accused pleads guilty the matter can be determined here, if not the case is deferred.
What happens if a defendant pleads 'guilty' to a summary offence?
If the accused pleads guilty to a summary offence, it will commonly be heard before a mention court, in the magistrates' court. If the accused pleads guilty at the mention court, the case will be dealt with immediately before a Magistrate. The magistrate will listen to submissions from the prosecutor and the defence lawyer of the accused The magistrates will also decide on the appropriate penalty or they will set a date for a sentencing hearing.
What happens if the defendant pleads 'not guilty' to a summary offence?
If the accused pleads not guilty, the case is deferred. The court may schedule wither a summery case conference or a contest mention hearing, before a summary hearing in an effect to streamline procedure. A summary case conference requires the prosecution and the cause, with the assistance of legal representative, to exchange targeted documentation, and discuss issues in dispute. This includes a change in charges laid. If parties can't agree, the accused mat requests. Full brief. A contest mention hearing, is to estimate the time required to hear the case, the court will check if the accused has sought legal representation, number of witnesses involved, etc.
What occurs at a summary hearing?
A summary hearing takes place where the accused pleas, both the prosecution and defence present their opening address, then the case for the prosecution, followed by the defences case. The parties present evidence and cross-examine the witnesses of the opposing side. The magistrate will then determine whether the accused is guilty or not guilty of the alleged offence. If the accused is found guilty then the magistrate will pass sentence.
Where do indictable offences take place?
The Supreme Court or county court.
Where does committal proceeding take place?
The magistrates or children's court.
What is the aim and purpose of the commit all proceedings?
A committal proceeding is used for indictable offences that will go to trial in the county court or Supreme Court. It involves many different types of hearings in the magistrates court, which determines whether a case is ready for trail. Hearings that may be held in a committal proceeding, is a filing hearing, a compulsory examination hearing or a committal mention hearing.
What is the committal hearing procedure?
The hearings that may be held in a committal proceeding is:
- a filing hearing: involves any indictable offence that must got to trial or cases where the accused or magistrate prefers to have the matter determined in a superior court.
- a compulsory examination hearing: the prosecution can request a special hearing to compel reluctant witnesses to provide evident. This will assist the prosecutor in providing statements to the accused in the hand up brief.
- a committal mention hearing: the prosecution and the accused have to attend this hearing unless excused. This is the management phase of a committal proceeding. At this hearing, the court considers whether the case should be heard summarily, witnesses will give oral evidence and others orders are required.
What is retired to occur before a committal mention hearing?
Before a committal mention hearing, the parties are required to discuss the case and prepare a joint case directions notice which outlines the outcome of the discussions. Court may direct parties to appear at a committal case conference, where informal discussions are held with a magistrate in an attempt to resolve issues and eliminate lengthy delays.
What is a hand-up-brief?
A hand-up-brief is a process in a committal proceeding where written statements are used instead of having witnessed attend in perish to give evidence.
When is a hand-up-brief used?
The use of a hand up brief in a committal proceeding has largely eliminated the need for oral evidence. It contains the date of the committal mention hearing, information relating to the importance of obtaining legal representation, photographs etc.
What occurs at the conclusion of the committal proceedings?
The magistrate will either discharge the defendant or commit him/her for trail. All evidence is given at the committal is included in the dispositions which are sent to the office of public prosecutions. The OPP can issue a 'nolle prosequi', if the accused goes to trial, a 'presentment' is drawn up, which is a written statement contains the details of the charge/s against the accused.
The OPP can issue a 'nolle prosequi', which is a statement saying what?
A statement stating that they do not wish to proceed with the prosecution
What are the criminal procedures in the county court and Supreme Court known as?
Know as trials.
Before a matter goes to trial in the county court or Supreme Court, a committal proceeding takes place. The procedure is used to determine what?
The procedure is used to determine a criminal matter differs according to whether the accused pleads guilty or not guilty. If the accused pleads guilty, no jury is needed, as the accused has admitted guilt. The prosecution represents a summary of the evidence, prior convictions are read out and the judge decides on a sentence.
If he pleads not guilty, the trial procedure would be carried out.
Outline the trial procedure in the county court or supreme court:
- the case is called and appearances are entered
- the accused is arraigned
- a jury is empanelled
- the trial judge usually addresses the jury
- opening addresses are made
- the prosecutor calls the crown witness
- a no-case submission may be made
- the accused's counsel calls witnesses
- requests for particular jury direction may be made
- closing addresses are made
- the judge sums up and directs the jury
- the jury retries to consider its verdict
- the jury gives its verdict
- pre sentencing
Explain five of the procedures that occur during a trail:
- the case is called and appearances are entered: first stage, where the prosecutor announces that he or she appears on behalf of the crown. the accused's counsel announces that he or she appears on behalf of the accused
- the jury retires to consider its verdict: the jurors go into the jury room. They may request copies of various documents to assist them in their deliberations. The jury must, discuss all evidence, decide on questions of fact, apply the law, and reach a verdict.
-the jury gives verdict: if the accused is found not guilty, he or she is free to leave the court, and cannot be tried again for the same offence
- pre-sentencing: if accused is found guilty, prior convictions are heard
- sentencing: the trial judge passes sentence
What is a jury?
A jury is a group of 12 people who are selected to sit and hear a trial. In the criminal and civil justice system, a jury serves to reflect the values of society.
A jury system is based on trial by peers. The jury in a criminal trial must listen to all evidence, piece the evidence together and decide whether the accused is guilty or not. In a civil case the jury decides who is in the wrong.
When is a jury used?
Used with a compulsory jury of 12 in criminal or civil cases, in the county court or Supreme Court where the accused has pleaded not guilty.
How many jurors are used in serious criminal offences?
12 jurors, though 15 can be the maximum. If it's below 10, the trail is cancelled and new jury is set up.
How many jurors are used in civil disputes?