criminal pre trial procedure n.
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Criminal Pre-trial Procedure

Criminal Pre-trial Procedure

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Criminal Pre-trial Procedure

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  1. Criminal Pre-trial Procedure • You need to know criminal pre-trial procedures and their purposes, including bail, remand and committal hearings (key knowledge) • You need to be able to describe the pre-trial procedures for criminal cases and compare their relative purposes (key skill)

  2. The process • A crime is committed • The police investigate the crime – look for evidence and suspects • Suspects are questioned (though they have the right to silence i.e. not compelled to answer any questions put to them) • Release (no charge) OR formal charge • If charged, may be granted bail (then released) or refused bail (remanded)

  3. Purpose of criminal pre-trial procedures • To assist the police in identifying evidence for the prosecution • To protect the rights of the accused and ensure that he or she is treated as innocent until proven guilty • To provide rights to the police to facilitate investigation • To provide an opportunity for the accused to be released pending trial, although this right may be denied in certain circumstances • To determine whether a trial should proceed – that is, if the evidence is of sufficient weight to support a conviction by a jury at trial • To determine if the accused wishes to plead guilty or not guilty – provide the accused with the opportunity to plead guilty at an early stage and thereby receive a lighter sanction. An early plea is also a benefit to the legal system, because it can reduce the number of trials and speed up the whole process.

  4. Bail – what and why • Bail allows for the release of a person who has been charged with a crime until their hearing/trial • They must agree to appear before the court at a later date • Upholds the presumption of innocence (i.e. a person shouldn’t be detained until they are proven guilty)

  5. Bail - how • Usually granted by police after a person has been charged • Can also be granted by a magistrate, judge or a bail justice • Bail is usually granted, unless: • There is a risk the person will disappear • There is a risk of reoffending (risk to society) • The person is already in custody for another offence

  6. Bail - conditions • There are usually conditions attached to bail. What they are will depend on the type of offence and the suspect Possible conditions include: • Hand over passport • Report regularly to police • Not approach certain people or places • Not communicate with people involved in the case

  7. Bail - refusal • Bail can be refused, despite the presumption of innocence, in certain circumstances: • Risk that the accused will fail to appear in court • Risk that the accused may commit another offence • Risk that the accused may endanger the community • Risk that the accused may contact witnesses and attempt to pervert the course of justice • Bail will usually be refused in cases of murder, treason and drug trafficking

  8. Surety • Most people are bailed on their own undertaking i.e. they agree to appear in court at a later date. No payment is involved. • If there is a risk that the person might not appear, a payment may be required to guarantee their attendance. • A surety is a person who takes responsibility for ensuring that the accused will appear in court at the appropriate time. There is usually money involved. The court will also consider the person offering the surety’s character

  9. Remand • Denied bail? The accused will be remanded in custody until the time of their trial. • Usually for less than six months • The purpose is to protect society by keeping people who may commit further offences in custody

  10. Apply your knowledge • How do bail and remand work in a practical sense? Go to p 301 of the textbook and work through qu. 6. • How do bail and remand relate to the three elements of an effective legal system (FAT)?

  11. Committal hearings • The primary purpose of a committal hearing is to assess if there is sufficient evidence for the case to proceed to trial (i.e. could a jury bring down a guilty verdict?) • Held in the Magistrate’s Court • Not essential but are used in most cases • DPP can direct a case to go straight to trial (though the accused can appeal this decision)

  12. Aims • To determine whether a prima facie case exists, that is, whether the evidence is of sufficient weight to support a conviction by a jury at trial • To clarify the issues prior to attending trial and thereby avoid taking a matter to trial when the evidence is flimsy, saving the time and resources of higher courts • To allow an early guilty plea, which avoids the time and cost of a trial • To inform the defendant of all the evidence against them, putting them on an equal footing with the prosecution and allowing them to best prepare their case

  13. Some terminology • Committal mention hearing: The first ‘mention’ of a case in court. Date is set for the hearing. Magistrate is informed of the number of witnesses and anticipated length of proceedings. • Hand-up brief: Evidence is provided to the court through a series of sworn written statements • Depositions: sworn written statements • Presentment: the official formal charge, prepared by the OPP (Office of Public Prosecutions)

  14. Process • Most committal hearings are now conducted by way of a hand-up brief • The more traditional method is similar to a trial, where oral evidence is given by witnesses who appear in court • After hearing/reading evidence, the magistrate will make a decision if the case should proceed to trial in either the County Court or Supreme Court •

  15. Double jeopardy • Once acquitted, a person is free and charges relating to the offence cannot be raised again • Nov 2011 changes to Victorian law mean that a new trial can be ordered where new and compelling evidence emerges that suggests the person who was acquitted may be guilty. Requires an application to the DPP. Will only proceed if it’s found to be in the interests of justice. • By contrast, a decision at a committal hearing not to proceed to trial doesn’t preclude new evidence being raised and a person being charged again

  16. Questions 1. Jane has been charged with manslaughter. She has decided to plead not guilty. Jane has been told that she will either be remanded or granted bail. Explain the difference between remand and bail. (3 marks) 2. Describe one purpose of a committal hearing and explain how it can promote the timely resolution of a criminal case. (3 marks)