The Criminal Process and the Role of DiscretionStudents should read the 2005 address given by the Director of Public Prosecutions, Nicholas Cowdery entitled The Criminal Process and the Role of Discretion [[image:/images/smttr_bl.gif width="12" height="12" caption="Selecting this link will take you to an external site."]], as it provides an excellent overview of how the exercise of discretion (Judgement) is integral to the functioning of the criminal justice system in NSW.
From reading the speech, students will note that the exercise of discretion operates from the beginning to the end of the criminal process, and without it, the wheels of justice in this state simply would not turn, nor would justice be served.
It might be useful for students to keep in the back of their mind, as a contrasting referral point, the debate about mandatory sentencing laws, as such laws operate to remove judicial discretion and many would argue remove also the ability of the law to serve the interests of justice.
Reporting crime:
Citizens have a discretion regarding whether to report a crime. There are numerous factors which impact upon whether a citizen (victim or not) reports a crime to police. For example, sexual assaults are offences which are under reported, as are domestic violence related offences. Students should consider the many reasons why crimes are reported and not reported. (e.g. Fear of retribution from the offender is often a relevant concern in relation to domestic violence offenders, apathy can also be a factor, perhaps a third party who witnessed the crime simply does not want to get involved in the process.)
Investigation Arrest and Charge:
Investigation:
Once police are aware that a crime has allegedly occurred, they will commence the investigation process to establish whether in fact a crime has occurred and to gather evidence to support an arrest and if applicable to substantiate charges being proven in Court beyond a reasonable doubt.
In many matters, police have discretion as to whether to proceed with an investigation. This Judgement will be informed by factors such as the severity (or otherwise) of the alleged crime, available resources and targeted priorities. Students should note that in some cases, such as domestic violence complaint, police have NO DISCRETION and must attend and investigate all domestic violence complaints. This has been a requirement since reforms were introduced in 1997.
Arrest:
Police do not have a general power to compel suspects to attend the police station. The only lawful means for police to insist upon a person attending the station is if that person is placed under arrest. Clearly police must exercise their judgement to consider whether they have a sufficient basis for a LAWFUL arrest. Students should note that there are strict rules which regulate when police can arrest someone and the manner of that arrest. A lawful arrest can only occur if:
the police inform the suspect that they are under arrest and why
the suspect is cautioned
the police have a warrant or
the police believe that the suspect is about to commit a crime or has just committed a crime or
the police witness the crime taking place
Charge:
Charging of the offender is the formal process whereby the suspect is charged with the particular offence(s) and receives notification of their first Court date. They are fingerprinted at this time.
Police exercise their discretion (within guidelines) in determining which specific offence(s) the suspect will be charged with.
Students should note that the suspect is under no obligation to give a formal record of interview to police nor indeed to answer their questions (apart from providing a correct name and address). Suspects have the right to silence and are entitled to exercise this right throughout the criminal process.
Students should also note that not all criminal proceedings begin by way of arrest, charge and bail (discussed below). For more minor offences, police may exercise their discretion (within policing guidelines) to initiate proceedings via a Court attendance notice.
Bail
Bail is conditional freedom prior to verdict, although, bail can in some circumstances be granted between conviction and sentencing. Bail requires that the person charged appear at court at a later date. Bail may be refused (in which case the accused is remanded in custody pending the court date), granted unconditionally or with conditions (such as reporting to police or provision of money by a third part to guarantee the accused’s appearance at court.
A police officer has the discretion (subject to the provisions of the Bail Act 1978 NSW to grant or refuse bail. If bail is refused the police have an obligation to bring the accused before a court as soon as is reasonably practicable.
Magistrates and Judges (again subject to the provisions of the Bail Act 1978 NSW) also have the authority to grant or refuse bail.
Plea, Hearing
Plea:
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 (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) upon the accused and they have had adequate time to consider it and obtain legal advice.
If a plea of guilty is entered then the accused is sentenced, the accused may or may not be remanded in custody during that time, dependent upon 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 then 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, if elected, 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 whether a prima facie case exists; whether there is a case to answer. If following the conclusion of the committal proceeding, the Magistrate does not find that a prima facie case exists then the accused is free to go. If a prima facie case is found to exist then the accused is committed to stand trial in either the District Court or Supreme Court (depending upon the severity of the offence) at a later date.
Students should also be familiar with Charge Negotiation (often still referred to as Plea Bargaining) which is where charges are reduced and/or some withdrawn in exchange for the offender agreeing to plead guilty.
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 some but not all charges, on the basis that the remaining charge will not be proceeded with. It is important for students to consider fully the ramifications or problems associated with this process. How does it impact upon the victim, the accused and society generally (including the issue of resource efficiency)?
Hearing:
Local Court (Summary Hearing):
Magistrate is tribunal (makes the decisions) of fact and of law (no jury).
Magistrate considers evidence, rules on admissibility of evidence and oversees conduct of the hearing.
Magistrate either acquits or convicts.
District Court, Supreme Court (Hearing on Indictment):
Judge is tribunal of fact (oversees conduct of trial, rules on admissibility of evidence and points of law. Instructs jury on their role and relevant law. If a verdict of guilty is returned by the jury then the judge determines the sentence - usually at a later date).
Jury: is tribunal of fact (determines guilt or innocence based upon the evidence presented at trial. The jury does NOT play a role in relation to sentencing)
Jurors are randomly selected from the electoral role in accordance with the provisions of the Jury Act 1979 (NSW).
The process of selecting a jury is known as EMPANELLING. The prosecution and defence may challenge a particular juror’s selection. There are two types of challenge:
Pre-emptory (limit of 3) no reason need be given
Cause (unlimited) must offer a reason.
(e.g. suspected of bias or not qualified to serve)
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.
From May 2006 in NSW, majority verdicts of 11:1 have applied – providing the court is satisfied that it is unlikely that the jury would reach a unanimous verdict and there has already been a reasonable time of deliberation (The time may not be less than eight hours) Prior to May 2006 a jury’s decision had to be unanimous.
Students should note that majority verdicts are not allowed in Queensland or the Australian Capital Territory. They are available in all other Australian states and in the Northern Territory. They are also not available anywhere in Australia for offences against Commonwealth laws (due to section 80 of the Constitution).
Students should be aware of the argument for and against majority verdicts and for and against the use of juries more generally.
Evidence:
The prosecution have the BURDEN OF PROOF in a criminal hearing. Students 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. It reflects the fact that the accused has more at stake in a criminal trial.
An audio recording is made of all hearings. This is a record of proceedings that may be used in appeals.
The defendant has the right to silence.
Hearings are adversarial in nature. The prosecution and defence and not the judge have responsibility to investigate and argue the case.
Appeals
Appeals are an essential aspect of the operation of the criminal justice system.
Appeals can be made from the Local Court, District Court and Supreme Court.
Appeals can be made to the District Court, Supreme Court, Court of Criminal Appeal and to the High Court (the final Court of appeal following the passing of the Australia Acts of 1986 (Cth and UK)(which removed the right to appeal from a state Supreme Court to the Privy Council in London
Appeals must be lodged within 28 days of a conviction and sentence.
Students should note that the right to appeal is NOT UNLIMITED.
Appeals fall into two categories:
“ALL GROUNDS”: where the accused is appealing against the conviction (this must involve a question of law or mixed fact and law)
“SEVERITY”: where the accused (and in some cases the prosecution) appeal against the severity (or leniency in the case of an appeal by the State) of the sentence imposed.
Local Court “severity” appeals are heard in the District Court. It is open for the judge to impose a higher penalty so the accused must consider very carefully whether an appeal should be lodged. All grounds appeals may be heard in the Supreme Court.
District Court and Supreme Court appeals are heard in the Court of Criminal Appeal before a panel of judges. Usually three judges hear the appeal unless there is no issue of principal in which case two judges may hear it. In cases dealing with important principles of law a full bench of 5 or more judges may sit. The Court of Criminal Appeal can review questions of law and overturn findings of fact. It can also reduce or increase penalties such as gaol sentences
“All grounds appeals” are conducted by way of a review, by the appellant court of the transcript of the original proceedings (transcripts are prepared from the sound recording of proceedings) together with written submissions from the prosecution and defence. Additional evidence may only be called on appeal with the leave of the appellant Court.
Personnel
Police: The role of police is to investigate alleged crimes and 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 matters police liaise with witnesses and arrange (via 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. Students 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 in which defence lawyers act on behalf of their client, the accused.
Under the adversary system the role of the prosecutor is to raise a reasonable doubt in the mind of the magistrate or jury at to the guilt of the accused.
In NSW indictable matters are prosecuted by the Director of Public Prosecutions (DPP). As a safeguard against political interference and corruption – the DPP is independent of the police and of the Government.
The Office of the Director of Public Prosecutions (ODPP) conducts matters involving offences under the laws of New South Wales in every jurisdiction in the State and in the High Court. An overview of the role of the ODPP is available at: http://www.odpp.nsw.gov.au/overview/overview.html [[image:/images/smttr_bl.gif width="12" height="12" caption="Selecting this link will take you to an external site."]]
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’s) 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) and barristers (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 Criminal Process and the Role of Discretion
The Criminal Process and the Role of DiscretionStudents should read the 2005 address given by the Director of Public Prosecutions, Nicholas Cowdery entitled The Criminal Process and the Role of Discretion [[image:/images/smttr_bl.gif width="12" height="12" caption="Selecting this link will take you to an external site."]], as it provides an excellent overview of how the exercise of discretion (Judgement) is integral to the functioning of the criminal justice system in NSW.From reading the speech, students will note that the exercise of discretion operates from the beginning to the end of the criminal process, and without it, the wheels of justice in this state simply would not turn, nor would justice be served.
It might be useful for students to keep in the back of their mind, as a contrasting referral point, the debate about mandatory sentencing laws, as such laws operate to remove judicial discretion and many would argue remove also the ability of the law to serve the interests of justice.
Citizens have a discretion regarding whether to report a crime. There are numerous factors which impact upon whether a citizen (victim or not) reports a crime to police. For example, sexual assaults are offences which are under reported, as are domestic violence related offences. Students should consider the many reasons why crimes are reported and not reported. (e.g. Fear of retribution from the offender is often a relevant concern in relation to domestic violence offenders, apathy can also be a factor, perhaps a third party who witnessed the crime simply does not want to get involved in the process.)
Investigation:
Once police are aware that a crime has allegedly occurred, they will commence the investigation process to establish whether in fact a crime has occurred and to gather evidence to support an arrest and if applicable to substantiate charges being proven in Court beyond a reasonable doubt.
In many matters, police have discretion as to whether to proceed with an investigation. This Judgement will be informed by factors such as the severity (or otherwise) of the alleged crime, available resources and targeted priorities. Students should note that in some cases, such as domestic violence complaint, police have NO DISCRETION and must attend and investigate all domestic violence complaints. This has been a requirement since reforms were introduced in 1997.
Arrest:
Police do not have a general power to compel suspects to attend the police station. The only lawful means for police to insist upon a person attending the station is if that person is placed under arrest. Clearly police must exercise their judgement to consider whether they have a sufficient basis for a LAWFUL arrest. Students should note that there are strict rules which regulate when police can arrest someone and the manner of that arrest. A lawful arrest can only occur if:
- the police inform the suspect that they are under arrest and why
- the suspect is cautioned
- the police have a warrant or
- the police believe that the suspect is about to commit a crime or has just committed a crime or
- the police witness the crime taking place
Charge: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 some but not all charges, on the basis that the remaining charge will not be proceeded with. It is important for students to consider fully the ramifications or problems associated with this process. How does it impact upon the victim, the accused and society generally (including the issue of resource efficiency)?
Local Court (Summary Hearing):
- Magistrate is tribunal (makes the decisions) of fact and of law (no jury).
- Magistrate considers evidence, rules on admissibility of evidence and oversees conduct of the hearing.
- Magistrate either acquits or convicts.
District Court, Supreme Court (Hearing on Indictment):- Judge is tribunal of fact (oversees conduct of trial, rules on admissibility of evidence and points of law. Instructs jury on their role and relevant law. If a verdict of guilty is returned by the jury then the judge determines the sentence - usually at a later date).
- Jury: is tribunal of fact (determines guilt or innocence based upon the evidence presented at trial. The jury does NOT play a role in relation to sentencing)
- Jurors are randomly selected from the electoral role in accordance with the provisions of the Jury Act 1979 (NSW).
- The process of selecting a jury is known as EMPANELLING. The prosecution and defence may challenge a particular juror’s selection. There are two types of challenge:
- Pre-emptory (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.
- From May 2006 in NSW, majority verdicts of 11:1 have applied – providing the court is satisfied that it is unlikely that the jury would reach a unanimous verdict and there has already been a reasonable time of deliberation (The time may not be less than eight hours) Prior to May 2006 a jury’s decision had to be unanimous.
- Students should note that majority verdicts are not allowed in Queensland or the Australian Capital Territory. They are available in all other Australian states and in the Northern Territory. They are also not available anywhere in Australia for offences against Commonwealth laws (due to section 80 of the Constitution).
- Students should be aware of the argument for and against majority verdicts and for and against the use of juries more generally.
Evidence:(e.g. suspected of bias or not qualified to serve)
Under the adversary system the role of the prosecutor is to raise a reasonable doubt in the mind of the magistrate or jury at to the guilt of the accused.
In NSW indictable matters are prosecuted by the Director of Public Prosecutions (DPP). As a safeguard against political interference and corruption – the DPP is independent of the police and of the Government.
The Office of the Director of Public Prosecutions (ODPP) conducts matters involving offences under the laws of New South Wales in every jurisdiction in the State and in the High Court. An overview of the role of the ODPP is available at: http://www.odpp.nsw.gov.au/overview/overview.html [[image:/images/smttr_bl.gif width="12" height="12" caption="Selecting this link will take you to an external site."]]