trial procedure Flashcards
(17 cards)
summary trial
most criminal cases are resolved by pleas of guilty
criminal trial process: adversarial
- the summary trial and trial on indictment are very similar and follow similar processes
- processes in both reflect two aspect of common law trial - adversarial in nature (signifies a system where two opposing sides present their cases and arguments before an impartial judge or jury, who then decides the outcome) and accusatorial process (is a method of resolving disputes where two opposing sides present their cases to a neutral decision-maker, typically a judge or jury, who then determines the outcome based on the evidence and arguments presented
prosecutors duty of disclosure
trial on indictment
committal hearings
trial on indictment:
- a trial on indictment is a legal process for trying serious criminal offenses, typically in higher courts like the county or supreme court, before a judge and jury
- it follows a committal process where a magistrate determines if there’s enough evidence to proceed
- the trial involves presenting an indictment, a formal document outlining the charges, and then hearing evidence and arguments to determine guilt or innocence
Pre committal proceedings
- a hand- up brief is to be received by accused 42 days before committal mention
- the hand-up brief has the prosecution witness statements and the accused’s record of interview, if any
- the witnesses’ statements must be in form of sworn affidavits
- at a committal - mention hearing the magistrate will ascertain what the plea will be, if any, and other issues including whether it can be heard as a summary matter or whether plea of guilty can be heard in summary jurisdiction
- if it is a plea of not guilty magistrate will want to know if witnesses are required for cross examination or if matter could be sent straight to county or supreme court without a
further hearing
committal hearings for indictable offences
a contested committal hearing
- an accused can apply to have witnesses give oral evidence and
be subject to cross examination - but there restrictions on some witnesses particularly in sexual assault cases
- the accused’s lawyer may ask witnesses questions. this lets
the accused know more about the prosecution’s case and the strength of the witnesses’ evidence
* it is possible for an accused to adduce evidence and even give evidence but this is unusual
* the magistrate considers the case and decides if there is enough evidence to commit accused for trial in county or
supreme court
trial on indictment
- trial by jury (the jury as a constitutional body in a free society)
sentencing
purposes of sentencing
sentencing act 1991 (vic) s5 sentencing guidelines
The only purposes for which sentences may be imposed are—
- to punish the offender to an extent and in a manner which is just in all of
the circumstances; or [retribution or just desserts]
- to deter the offender or other persons from committing offences of the same or a similar character; or [deterrence]
- to establish conditions within which it is considered by the court that the
rehabilitation of the offender may be facilitated; or [rehabilitation]
- to manifest the denunciation by the court of the type of conduct in which
the offender engaged; or [denunciation]
- to protect the community from the offender; or [community protection]
- a combination of two or more of those purposes
The section appears to omit recognition of harm caused and accountability
sentencing
- proportionality
- consistency
- aggravating and mitigating factors (plea of guilty as mitigating factor)
- concurrent and consecutive sentences
- instinctive synthesis
sentencing
In victoria the sentencing options for adult offenders are:
* imprisonment;
* drug treatment order;
* community correction order;
* fine;
* adjourned undertaking – to be of good behaviour;
* dismissal or discharge – offence proved but dismissed.
there is no provision for:
* suspended sentences of imprisonment – abolished;
* periodic sentences of imprisonment – weekend detention;
* home detention; or
* compulsory drug treatment orders
sentencing
parol
generally refers to something oral, verbal, or not in writing
it’s often used in the context of contracts and evidence, particularly in the parol evidence rule
this rule limits the use of oral or other non-written evidence to alter or contradict the terms of a written contract that is intended to be the complete and final agreement
checkpoint
steps of a summary trial
- charge laid and charge sheet filed
- first appearance and plea entered
- opening address by the prosecution
- optional response by the defence (issues in dispute)
- prosecution calls first witness - examination-in-chief
- cross-examination of witness by defence
- re-examination by prosecution (if needed)
- prosecution calls remaining witnesses
- prosecution closes its case
- defence may mae a no case to answer submission
- if no case fails - defence opens its case (if calling evidence)
- defence alls witnesses (accused may give evidence)
- closing submissions by prosecution and defence
- magistrate delivers verdict (guilty or not guilty)
- sentencing hearing (if guilty)
checkpoint
how are most criminal prosecutions resolved?
by a plea of guilty
- most criminal prosecutions are resolved by pleas of guilty, sentencing advisory council, guilty pleas in the higher courts: rates, timing and discounts
checkpoint
the common law trial is adversarial. this means that:
- the judge plays no part in the selection of witnesses or other evidence
- the judge has played no part in the investigation of the offence
- the judge has little power to intervene except to see that the trial is fair
- the parties select the witnesses and other evidence
- the parties chose the arguments to make
- the parties define the issues which are in dispute between them
checkpoint
the common law criminal trial is accusatorial. this means that:
- the prosecution bears the burden of proving the guilt of accused beyond reasonable doubt
- the prosecution decides what charges to bring
- accused are entitled to put the prosecution to the proof of the charge and to test the strength of its evidence
- accused are not required to answer the charges as they are protected by the right to silence and the presumption of innocence
- the prosecutor should inform accused of material which relates to their innocence
checkpoint
drag the correct words into blank
the purpose of a committal proceeding includings determing whether a charge is appropraite to be heard and determined summarily. whether there is sufficient weight in evidence to support a conviction for the offence charged, and how the accused will plead.
committal proceedings also aim to ensure a fair trial if the matter proceeds, by:
- ensuring that the prosecution case is adequately disclosed to the accused in the form of depositions;
allowing the accused to Incorrect! Correct answer:hear or read the evidence and to Incorrect! Correct answer:cross-examine prosecution witnesses;
- enabling the accused to put forward their case early, if they choose;
- giving the accused time to adequately prepare and present their case; and
- ensuring that the issues in contention are clearly defined.
checkpoint
which of the following is a purpose of a committal proceeding under s97(a)?
to determine whether a charge is appropriate to be heard and determined summarily
checkpoint
what is one function of the magistrate under s97(c)?
to determine how the accused proposes to plead to the charge
checkpoint
which of the following reflects s97(d)(ii–iii) of the criminal procedure act 2009 (vic)?
to allow the accused to read or hear the evidence and put forward their case at an early stage
checkpoint
key elements of an indictable trial
arraignment: charges read, accused enter plea
jury empanelment: 12 jurors selected
opening addresses: both sides may outline their case
prosecution case: witness examined in chief, cross-examined and re-examined
defence case (optional): may present witnesses or submit no case to answer
closing addresses by both sides
judge’s directions to the jury
jury deliberation and verdict
