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The accused • Joshua King, 20 years of age from Burnie, has been charged with stealing from a local grocery store. He has been accused of entering the premises at 6.00pm on Monday evening and stealing a quantity of groceries and cigarettes. The shop owner witnessed Joshua placing goods into his backpack and walking out of the shop. The shop owner followed Joshua, confronted him, made a citizens arrest and called the police. Upon arrival, the police searched Joshua’s bag and found numerous grocery items and packets of cigarettes. He was arrested and taken to the local police station and charged with stealing.
The accused • What safeguards (protections) are built into the criminal justice system to protect Joshua King, the accused? • Criminal Justice System: the system of practices and institutions of government directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. (Includes powers/procedures of police, lawyers, courts, judges role, jury, evidence procedures, sentencing outcomes, jail, rehabilitation etc.). • Task: in groups, read through all your notes on crime in society, including key terms and concepts, and identify some safeguards for Joshua. Write them down in dot point form.
Safeguards to protect the accused • Exercise of police powers • Presumption of innocence • Bail • Preliminary proceedings • The right to silence • Double jeopardy • Principles of natural justice • Right of defendant in a trial by judge and jury • Disclosure by prosecution • Right to contest the admissibility of evidence
Right of defendant in a trial by judge and jury • 1. Right to disclosure (indictable offence): prosecution must give copies of written statements of all evidence to be used against the defendant at trial. • 2. Right to disclosure (summary offence): defendant may apply for and receive relevant police documents. • 3. Prosecution has a duty not to proceed if they believe there is no substantial prospect of conviction.
Disclosure by prosecution • 1. It is the duty of the prosecution to call relevant witnesses who may assist the defence case (unless the prosecutor believes them not to be truthful). • 2. It is the duty of the prosecution to advise the defence of anything known that may conceivably assist the accused.
Right to contest admissibility of evidence • 1. Defendant can contest the admissibility of evidence against them on the grounds that the evidence was improperly or illegally obtained (Evidence Act 2001). • 2. Criminal Law (Detention and Interrogation) Act 1995 regulates police conduct, interviews, interrogation and charging process.
Exercise of police powers • Task: read the following and record dot points outlining the key rights of the accused in relation to the exercise of police powers. • (20 minutes – will review as a class) • Textbook page 376 – 378 • Access and Justice extract (wordpress site) • Legal Studies HSC 3rd edition (wordpress site)
Exercise of police powers • Right to remain silent • Be informed of charge and rights • Communicate with lawyers, family and friends • Use of interpreter • See and read written statements recorded • Fingerprints and DNA destroyed if not charged or found not guilty • Officer of same sex to take fingerprints, DNA, frisk/strip search • Refuse participation in identification parade or reconstruction of crime • Be informed of reason for arrest • Be released on bail (unless inappropriate) • Refuse to allow police to search property unless they have a warrant
Natural Justice • Laws will not be effective if they cannot be enforced. The law should provide a peaceful means for resolving criminal cases. For society to be satisfied with the outcomes of criminal cases, the outcomes must be fair and appropriate. • Natural justice is a common law principle that states people must be treated fairly. • It involves the right to be heard by an unbiased decision-maker. • People need to know the nature of any allegations made against them and they should be given a fair chance to put their case or respond to allegations. • There should be an avenue to appeal a decision that has been made.
Natural Justice • The elements of an effective legal system include: • Entitlement to a fair and unbiased hearing • Effective access to the legal system • Timely resolution of disputes • Read page 322 – 325 textbook and take key notes
Presumption of Innocence • It is one of the principles of criminal law that an accused is presumed innocent until proved guilty. Before a person can actually be charged with a crime there must be a specific law in force providing for that crime. • To be found guilty there is a standard of proof that is required. The prosecution must prove the case beyond reasonable doubt; there must be no reasonable doubt for an accused to be found guilty.
Presumption of Innocence • Read Australian Criminal Justice (Findlay, Odgers, Yeo, 1998) • Q1: Explain the circumstances when the burden of proof is placed on the accused and not on the prosecution. Give an example. • Q2: How does this contradict the principle of ‘innocent until proven guilty’?
The Right to Silence • The right to silence is the right of a suspect to say nothing in the face of police questioning and is justified as a protection from self-incrimination. • Read page 378 textbook “Right to silence” • Read Macquarie Law Journal and answer the following questions: • 1. Describe the two tiers of the right to silence • 2. Explain how the right to silence leaves the burden of proof entirely with the prosecution. • 3. In what situations does the right to silence not apply? • 4. What reasons would an accused want to remain silent during the pre-trial setting and the trial?
Double Jeopardy • Double jeopardy rule – prevents a person who has been acquitted or convicted of an offence from being tried again for an offence relating to the same conduct or event. • This means that if a defendant is charged, for example, with murder, and acquitted, that person cannot be charged again with the same murder, no matter what new evidence becomes available.
Double Jeopardy • In Tasmania, this rule was changed. • In the Criminal Code Act 1924, it states that The Court may order an acquitted person to be retried for a very serious crime if satisfied that there appears to be fresh and compelling evidence against the acquitted person in relation to the crime; and in all the circumstances it is in the interests of justice for the order to be made. • The court may order a person to be retried for a very serious crime under this section even if the person had been charged with and acquitted of a lesser crime. • http://www.examiner.com.au/story/434327/debate-a-must-on-law-proposal/
Preliminary proceeding • Also known as a Committal hearing or a Pre-Trial procedure • A preliminary proceeding involves cases where a person has been charged with an indictable offence. Before the case can go to trial before a judge and jury, the details must be presented to a magistrate who has to decide whether or not there is a prima facie (reasonable) case. • If there is no prima facie case, the magistrate can order the charges to be dropped and the person released. • If, however, there is enough evidence to suggest that a prima facie case does exist, the case will go to trial.
Preliminary proceeding • Diagram on criminal procedure in Tasmania • Read page 375, 387 – 395 textbook and answer the following questions: • 1. Explain the terminology prima facie • 2. Explain the aim/purpose of preliminary proceeding. • 3. What is a direct indictment and what are the two situations where direct indictment occur? • 4. What is the role of the Director of Public Prosecutions? • 5. Who is the present Director of Public Prosecutions? • 6. Explain discontinuing a prosecution. • 7. What are depositions? • 8. How do preliminary proceedings help to bring about a fair and unbiased hearing and how do they protect the accused?
