7The right to a fair trial and judgment by one s peers are seen as basic human

Transcription

1 CHAPTER The criminal trial 7The right to a fair trial and judgment by one s peers are seen as basic human rights in our legal system. This chapter will examine operation of adversary system and use of jury in criminal trials. Access to law can be confusing and difficult. You will also consider some of difficulties experienced by individuals in gaining access to criminal justice system and look at how se issues can be addressed. After reading chapter and taking activities should be able to demonstrate following key knowledge: features of a fair trial and rights in criminal proceedings guaranteed by Victorian Charter of Rights and Responsibilities an overview of adversarial nature of a criminal trial bail, remand, committal proceedings and criminal trials role and operation of a criminal jury advice and assistance available through legal aid. Criminal trial Features of a criminal trial Access to law Victorian Charter of Human Rights Equality before law Children and crime Fair hearing Rights in criminal law Double jeopardy Retrospective laws Adversary system Role of parties Role of lawyers Role of judge Evidence and procedure Onus and standard of proof Criminal trial procedures Pre-trial procedures Bail Summary offences Mention Indictable offences Committals Jury system Selection Role Trial procedures Prosecution case Defendant s case Factors limiting access Legal aid

2 Chapter 7 The criminal trial 187 Key terms accused adversary system burden of proof committal hearing defendant depositions directions hearing disqualified evidence hand-up brief hearsay evidence human rights ineligible inquisitorial system jury legal aid mention pro bono prosecution remanded in custody standard of proof surety A person (defendant) charged with a criminal offence where case is heard in County or Supreme courts The system of trial where opposing parties present a case before an impartial adjudicator A duty to prove what is suspected, which rests with party making allegation or assertion. In criminal cases, this rests on prosecution, while in civil cases, it rests on plaintiff Preliminary hearings in Magistrates Court in which Crown presents evidence of sufficient weight to justify a conviction by a jury in a higher court A person charged with a criminal offence Written statements of witness, given in evidence at committal hearings Hearing conducted by a judge for a criminal matter, designed to avoid delays in process of getting to trial and to resolve some issues before trial proceeds Categories of persons not able to perform jury service because y are serving, or have recently served, a sentence for an offence Anything that has a tendency to prove existence of a fact Documents presented by prosecution in a committal hearing or evidence on which prosecution case is based Evidence of something said by a person who is not called as a witness Basic freedoms related to respect, equality and dignity Category of persons not permitted to do jury service due to ir profession or a particular disability An alternative system of trial used in many Asian, African, European and South American countries where judge actively investigates case A panel of citizens selected to sit and listen to a case and to reach a verdict based on evidence presented Legal assistance or advice provided eir for free or at a reduced cost A process used by Magistrates Court in which a person who pleads guilty to a criminal charge can have matter dealt with quickly and efficiently Work done by private lawyers for free Proceedings by which someone is taken to court for a criminal offence; lawyer who conducts case for state against defendant is prosecutor Held in custody until time of trial because person is refused bail, or cannot afford or provide required surety The standard against which cases are measured; in a criminal case standard of proof is beyond reasonable doubt; in a civil case standard of proof is on balance of probabilities A person who legally promises property or money that requires alleged offender to attend court

3 188 The Legal Maze The Victorian Charter of Human Rights and Responsibilities Act 2006 Regardless of gender, age, status, nationality, belief or religion, everyone has same human rights. Refer to chapter 2 for an example of a statement of compatibility. Human rights are basic standards for freedom, justice and fairness. They are an essential part of any democratic society that respects rule of law and provides for equal opportunity. Although Australia is one of few Western nations that does not have a bill of rights, features of a fair trial and rights in criminal proceedings are viewed as a matter of fundamental importance in our society. In Victoria a range of legal protections exists to ensure entitlement to a fair and unbiased hearing, effective access to legal system and timely resolution of disputes. There are four basic ways that we protect features of a fair trial and rights in criminal proceedings. The Commonwealth Constitution. It sets out five expressed (stated) and three implied (assumed) rights, such as Section 80, which is right to trial by jury in federal matters. Common law. These are rules developed in courts, such as right to silence. International treaties. Australia is a signatory to UN Universal Declaration of Human Rights and or treaties protecting legal rights. Legislation. This is main way of protecting legal rights throughout Australia, including Victorian Charter of Human Rights and Responsibilities. The Charter of Human Rights and Responsibilities Act 2006 (Vic) was developed to protect all Victorians from injustice and sets out 20 rights related to freedom, respect, equality and dignity. In upholding human rights government is required to check all new laws against charter in a statement of compatibility. The parliament has final say over what laws are in passed in Victoria. The Supreme Court can declare that a law does not comply with charter, but this does not make law invalid. All Victorian courts must also interpret laws in a way that are compatible with charter. The government will review charter in 2011 and consider wher it should include or economic, social and cultural rights. Equal recognition before law Victorians have right to equality before law and equal protection of law without discrimination. This applies regardless of a person s gender, age, status, nationality, belief For more information on discrimination laws go to website of Victorian Equal Opportunity and Human Rights Commission commission.vic.gov.au. or religion. Members of a minority (such as Aboriginal Australians and Torres Strait Islanders) may be disadvantaged by discrimination. In response, our legal system develops ways to uphold human and legal rights for minorities. These mechanisms include Koori Court and Equal Opportunity Commission. Children in criminal process Children accused of committing a crime must be brought to trial as quickly as possible. If a child is detained, with or without charge, y must be held separately from all adult detainees and treated in a way that is appropriate for ir age. A number of processes have been developed to protect rights of children. (Refer to chapter 4 for individual rights when dealing with police and chapter 6 on role of Children s Court.)

4 Chapter 7 The criminal trial 189 Brough v. Australia (Human Rights Committee, 2006) Useful websites with legal information for ng people are Lawstuff Victoria Legal Aid www. legalaid.vic.gov.au, Legal Online vic.gov.au, Youth Central gov.au and Youthlaw Fact B was a juvenile Aboriginal boy with a mild mental disability who was transferred to an adult prison after causing disturbances at a juvenile detention facility. For his own safety, he was kept in solitary confinement. Later some of his clothing and blankets were removed, and light was kept on in his cell. The government justified B s treatment as necessary to protect B from self-harm, to protect or inmates, and to safeguard security of facility. Decision The humanity of a person s detention depends on subjective factors, such as person s sex, age, state of health, or or status. B s treatment was found to be in breach of article 10 (humane treatment of detainees) in conjunction with article 24 (protection of children). The HRC [Human Rights Committee] noted B s Aboriginal status, and greater deleterious effects caused to Aborigines by isolation, as a relevant factor in its decision, as well as his age. Source: The Victorian Charter of Human Rights and Responsibilities: Civil and Political Rights Explained, Victorian Equal Opportunity and Human Rights Commission Fair hearing All Victorians have right to a fair and public hearing by having criminal charges or civil proceedings decided by an independent and impartial court or tribunal. A court or tribunal is able to exclude media and public from all or part of a hearing. All judgments or decisions must be made public unless doing so would not be in best interests of a child. Rights in criminal proceedings A person who is charged with a crime has right to be presumed innocent until proved guilty. The following are minimum guarantees in charter. The right: to be informed about detail and reason for charge to help of an interpreter (free of charge) to legal representation (or to defend oneself personally) to be tried without unreasonable delay to be present at trial to examine prosecution witnesses, and to call witnesses right not to testify against oneself and right not to be compelled to confess guilt to enough time and facilities to prepare a defence and communicate with a lawyer to legal aid, if eligible to have conviction and sentence reviewed by a higher court. A child who is charged with a crime has right to a process that takes into account ir age and desirability of promoting ir rehabilitation.

5 190 The Legal Maze Gray v. DPP (Victorian Supreme Court, 2008) Fact G was charged with a number of offences, including aggravated burglary in November 2007, and was remanded in custody. He was refused bail by a magistrate in December 2007, pursuant to Bail Act [so] G applied for bail to Supreme Court and argued that his continued detention was not justified considering relative seriousness of offence and that his trial was unlikely to conclude by end of He contended that re was a risk he would spend more time on remand than any subsequent sentence if he was found guilty. Decision [The] Court considered various Charter provisions to be highly relevant to question of bail, including that a person must be released if not promptly brought before a court and must be tried without reasonable delay This was first decision by a Victorian court to substantively consider Charter in its decision, and it concluded that G s continued detention was not justified and that he should refore be released on bail. Source: The Victorian Charter of Human Rights and Responsibilities: Civil and Political Rights Explained, Victorian Equal Opportunity and Human Rights Commission Right not to be tried or punished more than once A person must not be tried or punished for same offence for which y have already been finally convicted or acquitted. This right upholds principle of double jeopardy whereby a person cannot be tried or punished for same offence twice. Retrospective criminal laws A person must not be found guilty of a criminal offence because of conduct that was lawful at time. In addition, a penalty must not be imposed for a crime that is greater than penalty that applied at time offence was committed. If a penalty for an offence is reduced after a person committed offence, that person must be eligible for reduced penalty. These rights do not apply to offences international law. Apply r standing Legal rights Investigation 1 What human rights abuses in World War II may have prompted formation of United Nations and Universal Declaration of Human Rights (UDHR)? 2 The founding framers of Australia Constitution deliberately decided not to have a bill of rights. What reasons can think of for this decision? In what ways are human rights protected in Australia? 3 Identify three arguments for and three arguments against a bill of rights. 4 Is a human right same as a legal rule? Discuss. 5 What are human rights in Australia? Copy and complete table on following page.

6 Chapter 7 The criminal trial 191 Rights Yes No Unsure Comments The right to remain silent The right to own guns The right to a university education The right to freedom of speech The right to go out and party The right to drink alcohol The right to drive The right to privacy The right to a nationality The right to vote 6 Provide examples of how our legal system provides for following: equal recognition before law rights for children in criminal process right to a fair hearing rights in criminal proceedings right not to be tried or punished more than once rights in relation to retrospective criminal laws. 7 Assess impact of charter on above rights. 8 In groups, identify five legal or human rights issues that are currently being discussed in media. For each issue: a Identify parties involved in issue. b What are perspectives of all parties represented? c What are ways that this dispute can be resolved? Present r findings to class. The adversary system of trial Australian courts use adversary system of trial as a mechanism to resolve conflicts in a peaceful way. This system was inherited from United Kingdom and is often known as a contest for truth. In a criminal case, two parties prosecution (a lawyer who conducts case for State) and defence present ir version of facts before an independent and impartial arbitrator (and a jury of ir peers in an indictable offence). The major features of adversary system of trial are described below. In adversary system prosecution and defence are responsible for preparing and presenting ir case. Role of parties Within adversary system, prosecution and defence have responsibility for preparation and presentation of ir case. The nature of offence will determine where case is heard; that is, Magistrates Court for summary offences and County or Supreme Court for indictable offences. Each party has right to put ir case to court. They will do this by presenting witnesses and or evidence to support ir arguments in strongest way possible and in most positive light. Each party also has right to question witnesses or evidence presented against m. Each side tests or s case and points out any flaws in it.

7 192 The Legal Maze The parties may be represented by lawyers in court. In adversary system judge acts as an impartial adjudicator. In criminal cases prosecution has burden of proving case beyond reasonable doubt. In adversary system re are strict rules of evidence and procedure to ensure that both parties are treated fairly. The need for legal representation The role of preparing and presenting a case is usually left to legal representatives. Although adversary system presumes that both parties are equally able to present ir case, not all individuals have skills required to present a case in court. A lawyer will be able to present a more persuasive argument than an individual who has no experience with court processes. Lawyers also have necessary standing of interpretation of relevant law and are familiar with rules of evidence and courtroom procedure. Both parties need to be represented for adversary system to work well. The lawyer s role is to represent ir client to best of ir abilities. Research has shown that an accused who appears in court without legal representation has a lesser chance of success than one who is represented. Role of judge The judge or magistrate in adversary system is an impartial adjudicator. They act as an umpire or referee who is responsible for ensuring that all parties observe rules of evidence and procedure for conduct of a case. In cases where re is no jury, magistrate is also responsible for making a decision between parties, eir guilty or not guilty. The judge or magistrate must carry out a number of important functions. Listen to all evidence. Ask questions of witnesses to clarify points. Ensure that party who bears burden of proof has satisfied this responsibility. Ensure that each party is treated equally and fairly. Take responsibility for upholding rules of evidence and procedure, such as ensuring that each party has an equal opportunity to present ir case judging admissibility of evidence, such as hearsay, opinion or privileged information deciding on any questions of law, such as a definition of a legal term overseeing selection and empanelling of a jury in an indictable trial deciding on questions of fact when re is no jury. If accused is found guilty, eir by a jury or by a magistrate, carry out sentencing on behalf of State in a fair and impartial manner. Standard and burden of proof The burden of proof in adversary system of trial lies with prosecution. Every accused person is considered to be innocent until proven guilty. The standard of proof required in criminal cases is beyond reasonable doubt. A jury must be convinced that an accused is guilty beyond any reasonable doubt before y can bring a verdict of guilty. It is not for accused to prove ir innocence. In fact, y don t need to say a word; instead, burden rests on party making allegation. Rules of evidence and procedure The strict rules of evidence and procedure are designed to make sure that each party has an equal chance to present its case. Each party is bound by same rules governing proceedings and restrictions on what evidence may be presented. Both defence and prosecution can call witnesses to support ir case. Witnesses give ir evidence orally to court. This process involves calling evidence-in-chief, cross-examination and re-examination. Examination-in-chief is when a witness gives evidence for first time by responding to questions. The or side n has an opportunity to ask questions; this is known as cross-examination. Cross-examination can highlight weaknesses in witness s version of events. The side that called witness to witness box can n re-examine witness in order to clarify any issues.

8 Chapter 7 The criminal trial 193 The inquisitorial system The inquisitorial system is used in many countries in Asia, Africa, Europe and South America. This system does not provide same protections to criminal defendants as does adversary system. It is often said that in inquisitorial system accused is guilty until proven innocent. Since a case would not be brought against a defendant unless re is evidence indicating guilt, system does not require presumption of innocence. The judge takes on responsibility for conduct of trial by questioning and examining witnesses and deciding on evidence needed and issues to be contested. Legal representation is not an essential component of trial as judge is person who runs investigation. However, lawyers are present and y can assist in determining issues for investigation, such as suggesting lines of inquiry. Although lawyers are able to question witnesses, this only takes place after judge s questioning and refore tends to be brief as judge tries to ask all relevant questions. A trial in an inquisitorial system may last for months as presiding judge gars evidence in a series of hearings. Extensive pre-trial procedures ensure that accused has several opportunities to prove ir innocence. Greater dependence is based on written or documentary evidence collected by judge and adjournments may take place at any time to allow for furr investigation. Sentencing in an inquisitorial criminal trial is made by a vote of a panel of judges consisting of one professional judge and two lay assessors (people selected at random from population). A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is needed in adversary system. In Australia a number of courts and legal processes use inquisitorial procedures. One example is through inquests or inquiries in Coroner s Court. It is coroner who investigates a suspicious death. They review evidence, question witnesses and make recommendations eir for committing a suspect for trial or to parliament for legislative action to overcome a legal problem. Rules of evidence In 2008 Victorian Parliament passed Evidence Act and it provided at least 12 months for legal profession to stand and implement se changes. The commencement date of Act was 1 January The aim was to bring Victoria into line with national uniform evidence laws. National uniform evidence laws are important because y provide consistent rules across all courts. Rules of evidence provide that only most reliable evidence is presented in court and this ensures fairness, equality and natural justice. Hearsay evidence People giving evidence in a case can only repeat what y know or heard directly. As a general rule y cannot repeat what a third party told m y heard or saw. This is called hearsay evidence. However, Evidence Act provides a more structured approach to dealing with hearsay evidence as it may be admitted in some cases. The Act also creates a specific exception to hearsay rule so that evidence can now be given to existence or content of traditional laws and customs of an Aboriginal or Torres Strait Islander group.

9 194 The Legal Maze Opinion evidence ( use of experts) Generally, witnesses cannot give a personal opinion as evidence in court. However, court may allow an opinion to be given as evidence if witness is recognised by court as an expert in a particular field. Experts can be professionals, such as engineers and doctors. Or people may also be allowed to give an opinion as evidence. For example, a parent may comment that a child s behaviour was out of character. In most instances, evidence of prior convictions can only be heard after a conviction as part of sentencing process. Prior convictions As a general rule, past offences committed by a defendant cannot be heard as evidence during a trial. Evidence about past offences will usually only be heard as part of sentencing process after a verdict has been reached. There are some exceptions to this rule. The court has discretion to allow propensity evidence. Propensity evidence is evidence that a person has a tendency to behave in a certain manner. In se cases evidence of past offences is used to suggest that a person is likely to have committed an offence because of previous behaviour. Privileged information Some forms of communication are considered to be privileged. Privileged information can generally not be given as evidence without consent of parties. For instance, communications between legal practitioners and ir client cannot be given in court without client s permission. Communications between a wife and husband (including de facto and same-sex partners) and a doctor and patient, and confessions given to clerics are also privileged. Strengths and weaknesses of adversary system The adversary system has five main strengths: it provides for a fair and unbiased hearing, is cost effective, has confidence of community, protects rights and provides for individual control. The adversary system has been described as a battle that leads to truth being determined. It has been used in Australia since European settlement and re is trust and faith in its use. The main strengths of this system are as follows. It provides for a fair and unbiased hearing. As an independent arbiter hears disputes, all parties are treated impartially. The rules of evidence and procedure ensure that both parties have an equal opportunity to present ir case. It is cost effective. Those directly affected by case bear costs. The community should have confidence that all important evidence will be put forward as each side is responsible for presenting best case to support ir argument. It has community s confidence. The system has been successful over time and community has confidence in it. It protects rights. The key features independence of judge and standard and burden of proof provide a fundamental protection of rights of individuals. The burden and standard of proof establishes a strict test for prosecution to secure a conviction. This test acts as protection for defendant against an unfair prosecution. The system is seen as fair and just. It provides for individual control. Each party is responsible for operation of ir case and y decide what evidence will be put forward to prove ir version of facts. This enhances independence and personal freedom. The weaknesses of adversary system include following. The state is more powerful than individual. The resources of State support prosecution in a criminal case, evidence gared by police, and case of Director of Public Prosecutions. This can place an individual at a disadvantage.

10 Chapter 7 The criminal trial 195 The adversary system has five main weaknesses: re is an imbalance of power between individual and State, it is costly, skills of judge are not fully utilised, not all evidence may be heard, and re is a reliance on oral evidence. Legal representation and court costs are expensive. Legal aid can assist some people in criminal matters by financing representation. However, insufficient funding allocated to legal aid means that representation cannot be provided for all cases. There are concerns in community that funding cuts to legal aid make legal representation difficult for some and that in certain serious cases, defendants are unable to obtain representation. In 1994, High Court ruled that if a person charged with a serious criminal offence is not represented, eir because y cannot afford it or were refused legal aid, n trial cannot proceed. In se circumstances judge should grant an adjournment or stay proceedings. This is known as Dietrich principle. It does not fully utilise skill of judge in adversarial system. Critics argue that role of judge as an impartial umpire does not make best use of this highly trained person. By contrast, in inquisitorial system judge takes an active role in investigating crime and conducting presentation of evidence during trial. Party control means that not all evidence may be disclosed. It is also argued that role of parties means that y may only present evidence favourable to ir case. As a result, important facts might not be put before court. There is reliance on oral evidence. The adversary trial is conducted as a single continuous trial and relies on oral evidence given by witnesses in court. However, witnesses are sometimes asked to give ir evidence a long time after event. Critics question accuracy of oral evidence given sometimes as much as a year after incident. The adversary system of trial has its supporters and critics among our judges. Justice Michael Kirby of High Court has said that most important purpose of adversary system is that it makes State prove that accused person is guilty. He believes our system is one reason why Australian freedoms are stronger than those in many or countries. Reforms and alternatives to adversary system Some changes have been suggested to make adversary system work even more efficiently, with matters heard more quickly. These include: allowing greater pre-trial disclosure by prosecution and defence encouraging pre-trial resolution of guilty pleas giving courts authority to impose a strict pre-trial management regime allowing judges to impose time limits on examination of witnesses for cases to be heard by a judge sitting alone. Pre-trial criminal procedures The court procedure leading up to hearing of a case will depend on wher case is a summary offence or an indictable offence. Bail is release of a person charged with an offence on condition that y appear in court. The procedures used to bring a criminal case to court will depend on wher case involves a summary offence or an indictable offence. Summary offences are minor offences that are heard only in Magistrates Court. Indictable offences are more serious offences. Indictable offences go through a committal process in Magistrates Court and are n determined in eir County or Supreme courts. Any person accused of committing a crime, regardless of wher case is a summary offence or an indictable offence, is presumed innocent until proven guilty in a court of law. Therefore, a person should not be denied freedom unless re is good reason. Bail Bail is release from custody of a person charged with an offence. The person charged with offence gives an taking to appear in court at a later date and abide by any or conditions set. For example, person may need to regularly report at a police station, surrender ir passport or not interfere with or contact any witnesses or

11 196 The Legal Maze Sometimes special conditions are imposed and a surety required before bail will be granted. co-accused. Bail applications can be heard by a member of police force of rank of sergeant or above, or by a judge, magistrate or bail justice. In Victoria, Bail Act 1977 sets out when bail will be granted or refused. Bail will generally be granted and is only refused if re is an unacceptable risk that accused will: not appear in court commit an offence while on bail endanger safety or welfare of public interfere with a witness or obstruct justice. The seriousness of offence will also be taken into consideration in deciding bail applications. In certain circumstances, bail will be refused unless person charged can show cause why ir detention is unjustified. These matters include murder, stalking, family violence, treason and serious drug offences. If accused person cannot satisfy conditions of bail y will be remanded in custody. Surety Most people who are granted bail do so on ir own taking. Sometimes a court may ask for a surety. A surety is someone who promises to make sure that alleged offender attends court at specified time. The promise of eir accused or surety may be supported by: deposit of required money or a title to a property (at police station or court) evidence of availability of required money (such as bank evidence of a sufficient savings account balance). If person charged does not appear in court, n sum of money will be lost. If a surety lodges money or a title to a property, y must prove that y did everything possible to ensure that charged person appeared in court. If accused person does not appear in court, a warrant will be issued for accused person s arrest. Changes to streamline summary offence procedures. Summary offences Summary offences are heard in Magistrates Court. They are determined by a magistrate and re is no jury. A person charged with a summary offence will receive a summons, which informs defendant where case will be heard and mention date. The reverse side of summons provides an explanation of what a person should do when y receive a summons. See flowchart on page 198 for a description of Magistrates Court summary procedures. Criminal Procedure Act 2009 (VIC) Prior to full implementation of Criminal Procedures Act in 2010 Victoria Police in conjunction with Victoria Legal Aid trialled a number changes to assess effectiveness of a range of new procedures related to case preparation and summary prosecution. The aim was to reduce time it takes for matters to go before a Magistrate by promoting early decision making in cases. The impact to legal system was significant by reducing costs, delays and unnecessary trauma to victims. It was found that se changes reduced court delays on average from 210 days to 32 days. The Criminal Procedure Act 2009 (VIC) which has been in force since 1 January 2010 has introduced following changes to summary procedures. Notice to appear The police or Office of Public Prosecutions need to issue a notice to appear to offenders suspected of committing a summary offence or an indictable offence triable summarily.

12 Chapter 7 The criminal trial 197 Preliminary briefs Shortly after notice to appear (within 21 days) police must serve a copy of charges and a preliminary brief on accused within 7 days of charges being filed at court. The preliminary brief gives accused and ir lawyer s details of prosecution s case at an earlier stage in proceeding than previously occurred. Summary case conferences A summary case conference is arranged with summary case conference manager (prosecutor) and defence. Its purpose is to promote early identification and resolution of issues. The manager is able to withdraw or amend charges, amend summary and direct informant to provide additional material to defence. These procedures generally take place before first mention date or at any time when directed by court. In a summary offence a defendant can enter a guilty plea on mention date. If defendant pleads guilty, a mention hearing will be held to determine sanction. If defendant pleads not guilty, a later hearing date will be set for a contested mention hearing. Indictable offences are heard by a judge and a jury. Mention date The purpose of mention date is to determine plea of defendant. If defendant does not appear in court on mention date for a summary offence, court will deal with case in defendant s absence. Mention hearing If defendant pleads guilty on mention date, matter will be dealt with immediately in a mention hearing. The prosecution will present a summary of evidence and defendant will be given an opportunity to present character witnesses. Based on this information, magistrate will determine an appropriate sanction. If defendant enters a plea of not guilty case will be given a specific hearing date. The case will n be heard as a contested mention. The contested mention provides an opportunity for issues relating to charge to be clarified. As a result of contested mention, some or all of charges may be withdrawn, or defendant may alter ir plea to guilty. With introduction of Criminal Procedure Act se changes are less likely. If, following contested mention, defendant still pleads not guilty a summary hearing in Magistrates Court will be held. The mention and contested mention procedures have been introduced to ensure that court works efficiently. This process helps court to determine amount of time required to hear contested cases. It also means that cases in which defendant intends to plead guilty can be heard without delay. The diagram opposite provides a summary of procedure used in Magistrates Court for hearing of a summary offence. Indictable offences Indictable offences are more serious offences and procedures used for hearing se cases are more complex. Indictable offences are heard by a judge and a jury of 12. A number of pre-trial stages take place before case goes to trial. Committal proceedings Committal proceedings are held in Magistrates Court to determine wher re is sufficient evidence to support a conviction by a jury in a higher court. If magistrate is satisfied that re is sufficient evidence to support a conviction, case will be sent to trial in eir County Court or Supreme Court. A committal mention hearing is held to determine wher defendant intends to plead guilty. Committal mention A committal mention date will be set to establish first date for hearing of committal proceedings. The purpose of committal mention process is to determine wher defendant is going to plead guilty or contest committal. If defendant

13 198 The Legal Maze Magistrates Court summary procedures Summary offence Summons issued Mention date Defendant pleads not guilty Defendant does not appear Defendant pleads guilty Contest mention Case dealt with in defendant s absence Warrant issued for arrest Sanction handed down Charges withdrawn Guilty plea Summary hearing Charge read and defendant pleads Defendant pleads guilty Sanction handed down Sanction handed down Sanction handed down Not guilty plea Prosecution case Case dismissed if magistrate decides re is no case to answer Defence submits no case Defence case Not guilty Magistrate makes decision Guilty Magistrate sets sanction enters a plea of guilty at committal mention, a date will be set for sentencing in higher court. If committal is contested magistrate will: determine number of witnesses and likely length of committal proceeding set a date for a full committal hearing. A committal hearing is conducted in Magistrates Court to determine wher re is enough evidence to justify a conviction by a jury in a higher court. Committal hearing At full committal hearing, role of court is not to determine wher defendant is guilty or innocent but wher re is sufficient evidence to support a conviction in a higher court. The committal hearing is refore not a trial. At committal proceeding defendant will be asked to enter a plea. However, defendant also has option to enter no plea and onus is on prosecution to prove case. The defendant does not have to present a defence during committal; this may be reserved for trial. The Director of Public Prosecutions (DPP) presents information and evidence given in a committal proceeding in written statements known as depositions. The DPP will review case and decide to proceed with prosecution in a higher court or issue a nolle prosequi. A nolle prosequi means DPP does not intend to continue with prosecution.

14 Chapter 7 The criminal trial 199 A hand-up brief provides that a committal can be conducted based on documented evidence. Directions hearings determine any issues or interpretation of law before trial starts and jury is empanelled. Indictable offence pre-trial process Hand-up brief In most cases a committal procedure known as a hand-up brief will be used. This procedure is usually adopted in rape cases. This method of committal allows most of evidence to be presented as written statements. If defendant wishes to question evidence given in any of statements, y may request that a witness appear in court to answer questions. Or pre-trial procedures There are a number of procedures that may take place between time of committal and trial of a defendant for an indictable offence. These procedures have been designed to reduce delays in bringing cases to court and include directions hearing, summary of prosecution opening, and defence response. Directions hearings The judge may hold a directions hearing. As part of this hearing prosecution and defence must file a statement of ir case. The purpose of this hearing is to determine any issues or interpretations of law before a jury is empanelled. Or matters (such as number of witnesses, use of experts and questions of law) are discussed to determine approximate length of trial. This means that trial can proceed as one continuous hearing after jury is empanelled. Or procedures The prosecution will give defendant a summary of prosecution s opening statement and a copy of any pre-trial admissions. This will include a summary of any Acts, facts, matters and circumstances that prosecution will rely on to obtain a guilty finding. The accused will give prosecution a summary of ir response to opening statement and indicate what evidence is agreed and admitted, as well as a statement of what evidence is to be contested. Indictable offence Committal mention Hand-up brief Guilty plea Committal hearing Magistrate decides if re is sufficient evidence to support a conviction Guilty plea Date set for sanctioning in a higher court Guilty plea Yes No Date set for sanctioning in a higher court Direction hearing No furr action Trial in a high court

15 200 The Legal Maze The criminal trial The following table describes process used in a higher court for a criminal trial. The trial begins with accused being asked to enter a plea. This process is formally known as an arraignment. The charge is read out and accused is asked to plead eir guilty or not guilty. Criminal trial Guilty Plea Not guilty Jury empanelled Prosecution opening Defence response Summary of prosecution case Prosecution case Examination-in-chief, cross-examination and re-examination Defence case Examination-in-chief, cross-examination and re-examination Prosecution sums up Defence sums up Submissions Guilty verdict Judge s charge to jury Not guilty verdict Judge determines sanction Accused released

16 Chapter 7 The criminal trial 201 If accused pleads guilty, a summary of evidence is presented and court will sentence offender. A jury is empanelled if accused pleads not guilty. The prosecution presents an opening address and defence presents a response. The judge will address jury on issues relevant to trial. The prosecution presents its case. Pleading guilty If accused pleads guilty, a summary of evidence is presented. Any prior convictions are read out. Information about character of accused may be presented to court. The defence may present arguments in favour of leniency or for a particular sanction to be considered. The judge n passes sentence. In some instances judge may delay sentencing until furr information is available. Pleading not guilty If accused pleads not guilty, a judge and 12 jurors hear case. Any questions of law that have not been dealt with at directions hearing will be discussed before jury is empanelled. The prosecution starts with a summary of case. This will include: nature of alleged offence(s) elements that must be proved by Crown evidence that prosecution will be presenting to court in order to prove charges. Following prosecution opening, defence presents a response outlining issues in trial and any facts that are not contested. The judge may n address jury on issues relevant to trial, any admission made, or or matters decided in directions hearing before trial started. At this point court may order out or ask witnesses to leave room. Prosecution case The prosecution case commences. Witnesses are called, examined-in-chief, crossexamined and re-examined. Some types of evidence are not allowed and rules of evidence are complex. The judge will decide wher questions and evidence are admissible. Court rules also govern how barristers question witnesses. No case submission At end of prosecution s evidence, defence may argue that re is no case to answer. If judge agrees, jury will be directed to acquit accused. The defence presents its case. The prosecution and defence present closing addresses and judge instructs jury. It is role of jury to decide verdict: guilty or not guilty. Defence case If case proceeds, defence witnesses are examined in same way as prosecution witnesses. The accused does not have to give evidence and can remain silent. As accused is considered to be innocent until proven guilty, fact that defendant has decided not to give evidence cannot be taken as a sign that defendant has something to hide. Closing addresses After defence completes its case, both prosecution and defence have opportunity to address jury. Both prosecution and defence summarise cases y have presented. The judge will n instruct jury on appropriate questions of law applicable. This is referred to as judge s charge to jury. Jury considers verdict The jury retires to jury room to consider its verdict. When jury reaches a verdict, jury foreperson informs court of verdict: guilty or not guilty. The accused is acquitted if found not guilty. When re is a guilty verdict it is up to judge to pass sentence.

17 202 The Legal Maze The jury system The system of a jury is based on idea that all individuals in community are responsible for administration of justice. This dates back to early English idea of trial by peers (or equals). It means that every person has right to be tried in accordance with values held by ordinary members of community. Therefore, aim of process used to select potential jurors is to provide a jury representing a crosssection of community. The jury represents a cross-section of community. Jurors are selected randomly from electoral rolls. A questionnaire is sent to prospective jurors to determine if y are ineligible, disqualified or excused for a good reason. Selection of jurors Any person whose name appears on electoral roll may be eligible for jury service. This means that to be on a jury a person must be an Australian citizen, over age of 18 and eligible to vote. The names of potential jurors are selected at random from roll. A questionnaire (see pages 204 5) is n sent to each potential juror, which must be answered and returned within seven days. Based on answers to questionnaire, potential jurors may be disqualified, deemed ineligible or excused from jury service. Over questionnaires are sent out and, according to 2008 Supreme Court Annual Report, a total of jurors were summoned in Victoria. Only 7964 jurors were empanelled leading to 695 Supreme and County court trials. Ineligible People who are ineligible for jury service are: those who work in legal system (such as police officers, judges and lawyers) people who have a physical disability that prevents m from performing duties of a juror, such as deafness, blindness or intellectual capacity people who are unable to communicate or stand English. Disqualified People disqualified from jury service are those who have been: convicted of treason or an indictable offence and to a term of imprisonment of three years or more to more than three months in prison in past 10 years on an intensive correctional order or suspended sentence within past five years to th detention or placed on a community-based order. Excused from jury service People can be excused from jury service, or seek deferment to a more convenient time, if y have a good reason. Good reasons include: illness or poor health advanced age living over 50 kilometres from Melbourne or over 60 kilometres from a court in case of a country court fact that jury service would cause substantial financial or or hardship to person fact that jury service would cause substantial inconvenience to public. Guidelines as to what constitutes substantial financial or or hardship are forwarded to all potential jurors when y are summoned for jury duty. Work-related reasons are unlikely to be sufficient unless person is self-employed or has extremely heavy work commitments.

18 Chapter 7 The criminal trial 203 A jury of 12 is empanelled for a criminal case. The defence may challenge jurors eir for cause or as a peremptory challenge. The jury must listen carefully to all evidence and determine guilt beyond reasonable doubt. The jury can reach a majority decision in all cases except murder, Commonwealth offences and certain drug offences. Empanelling jury A jury of 12 will be used in criminal cases in County or Supreme courts. In forming a jury, both parties are entitled to challenge potential members. These challenges may be peremptory challenges in which no cause or reason needs to be given or challenges for cause. When re is one accused, each side has six peremptory challenges, with two accused y have five, and with three or more accused y have four challenges. In cases that are expected to be lengthy, up to 15 jurors may be empanelled, but only 12 will be balloted to make final decision. Role of jury The jury s task is to remain impartial, to hear evidence and decide wher accused in a criminal case is guilty beyond reasonable doubt. The jury must listen carefully to all evidence and decide, on facts of case, wher accused is guilty or not guilty. It is judge s responsibility to interpret law and to determine sanction if accused is found guilty. Juries are permitted to reach a majority verdict in all criminal matters, except murder, Commonwealth offences and certain drug offences. A judge may accept a majority verdict if, after six hours, jury cannot reach a unanimous decision. A majority verdict means 11 out of 12 jurors must agree that accused is eir guilty or not guilty. In case of murder, Commonwealth offences and certain drug offences decision must be unanimous. The current rates of payment for jurors in Victoria is $37 per day for first six days and $74 reafter. Advantages of jury Some of main advantages of jury system are as follows. Juries provide for an impartial and unbiased decision. Juries allow for community involvement and reflect community values. Provides an impartial and unbiased decision-making body As jurors are randomly selected from community, fate of an accused is in hands of ordinary people. These jurors represent a cross-section of society s values. Juries do not have any connection with accused or crime with which accused is charged. Therefore, jurors come to court with open, unbiased minds. They have nothing to fear from speaking ir minds and nothing to gain or lose by coming to a particular decision. This helps to ensure that fairness and justice can be achieved. Ensures community involvement The use of jurors also means that community is actively involved in legal system irrespective of financial circumstances, gender or race. This increases acceptance of court decisions and ensures that legal system reflects values of community.

19 neligible for are T eligible for jury service. Go to PART F The Legal Maze rve on a204jury. > If have answered, go to question A4 Part Part A: A: Eligibility Eligibility SomeSome people people are not areeligible not eligible for jury forservice. jury service. Please Please answer answer everyevery question question by ticking by ticking eireir or. or. A3 A3Mental Mental incapacity incapacity A1 A1 Are : Are : a patient a patient withinwithin meaning meaning of of Mental Mental HealthHealth Act 1986? Act 1986? a represented a represented person person withinwithin meaning meaning of ofguardianship Guardianship and and Administration Administration Act 1986? Act 1986? Can Canstand stand and communicate and communicate in in English English well enough well enough to do to jury doservice? jury service? > If > Ifhave have answered answered to thistoquestion this question are T are T eligible eligible for jury forservice. jury service. Go togopart to PART F F Jury Jury Jury Jury sequestionnaire questions Questionnaire Questionnaire uestionnaire > If > Ifhave have answered answered, go, to go question to question A2 A2 A2 A2 Disability Disability or mental or mental incapacity incapacity Having Having a disability a disability doesn t doesn t necessarily necessarily makemake ineligible ineligible for for jury service, jury service, but itbut might it might makemake it hardit for hard forto serve to serve on a jury. on a jury. Use a blue or black pen when filling out this form. Your answers to this questionnaire will Tick boxes where applicable. decide wher are eligible to serve as a juror. Complete and return questionnaire by Use a blue or black pen when filling outdeadline this form. given on r Notice of Selection letter. You may be fined if don t. Tick boxes where applicable. Your answers to this questionnaire will decide wher are eligible to serve as a juror. Jury Jury Questionnaire Questionnaire Do : Do : have have a physical a physical disability disability that means that means can t can t do jury doservice? jury service? subject subject to a supervision to a supervision orderorder Crimes Crimes (Mental (Mental Impairment Impairment and and Unfitness Unfitness to be to Tried) be Tried) Act 1997? Act 1997? > If > Ifhave have answered answered to onetoor one more or more of se of se questions questions are T are eligible T eligible for jury forservice. jury service. Go togopart to PART F F > If > Ifhave have answered answered, go, to go question to question A4 A4 a judge, a judge, a magistrate a magistrate or or holder holder of any of any or or judicial judicial office? office? a member a member of of Police Police Appeals Appeals Board? Board? Please note that it is an offence Please note that it is an offence a bail a bail justice? justice? Juries note Act 2000 toit give false or misleading Please that is offence misleading Juries Actan2000 to give false anor Australian an Australian lawyer lawyer (within (within meaning meaning of of information to evade jury service. Please note that it is offence Juries Actan2000 toinformation give false or tomisleading evade jury service. Legal Legal Profession Profession Act 2004)? Act 2004)? Juries Act 2000 toinformation give false ortomisleading evade jury service. employed employed or engaged or engaged (eir (eir paidpaid or or Page 2Page of 122 of 12 information to evade jury service. voluntary) voluntary) in in public public sector sector within within meaning meaning of of Public Public Administration Administration Act Act in law in law enforcement, enforcement, criminal criminal investigation, investigation, provision provision of legal of legal services services in criminal in criminal cases, cases, administration administration of of justice justice or penal or penal administration? administration? Secretary Secretary to to Department Department of Justice of Justice or or Department Department of Human of Human Services? Services? a member a member of of Legislative Legislative Assembly Assembly or or Legislative Legislative Council? Council? Auditor-General? Auditor-General? Ombudsman, Ombudsman, Acting Acting Ombudsman, Ombudsman, Deputy Deputy Ombudsman Ombudsman or or Acting Acting Deputy Deputy Ombudsman? Ombudsman? an employee an employee of of Ombudsman? Ombudsman? Director, Director, Police Police Integrity, Integrity, or Acting or Acting Director, Director, Police Police Integrity? Integrity? A5 A5Present Present occupation occupation Are Are currently: currently: Electoral Electoral Commissioner? Commissioner? Legal Legal Ombudsman, Ombudsman, or anoracting an Acting Legal Legal Ombudsman? Ombudsman? employed employed by aby person a person admitted admitted to legal to legal practice practice in Victoria in Victoria in connection in connection withwith legallegal practice? practice? exempted exempted by virtue by virtue of of Commonwealth Commonwealth JuryJury Exemption Exemption Act Act (e.g.(e.g. members members of of defence defence forces)? forces)? Special Special Investigations Investigations Monitor Monitor or Acting or Acting Special Special Investigations Investigations Monitor? Monitor? employed employed as aas government a government shorthand shorthand writer writer or court or court reporter reporter or inorconnection in connection withwith any any courtcourt recording recording service? service? > If havehave answered to one or more of se questions > If answered to one or more of se questions are T eligible for jury service. Go togo PART F F are T eligible for jury service. to PART > If havehave answered,, go togo to PART B B > If answered PART an employee an employee in in Office Office of Police of Police Integrity? Integrity? an employee an employee in in Office Office of of Special Special Investigations Investigations Monitor? Monitor? > If > If havehave answered answered,, go togoquestion to question A5 A5 Page 12 of 12 a member a member of of police police force? force? > If > If havehave answered answered to one to one or more or more of se of se questions questions are T are T eligible eligible for jury for jury service. service. Go togo PART to PART F F Please note that it is an offence Juries Act 2000 to give false or misleading information to evade jury service. Are Are currently currently or have or have beenbeen in in past past 10 years: 10 years: Governor Governor or or Official Official Secretary Secretary to to Governor? Governor? Complete and return questionnaire by deadline given on r Notice of Selection letter. You may be fined if don t. y service, go Please note that it is an offence Juries Act 2000 to give false or misleading information to evade jury service. Your answers this questionnaire will have have an intellectual an intellectual disability withinwithin Yourtoanswers to this questionnaire will disability meaning meaning of ofintellectually Intellectually Disabled Disabled decide wher are eligible to serve as a juror. Your answers to this questionnaire will decide wher are eligible topersons serve asservices a Act juror. Persons Services 1986? Act 1986? Your answers to this questionnaire will decide wher are eligible to serve as a juror. Use a blue or black pen when filling out this form. e wher areuse eligible a juror. > Iffilling > Ifhave answered to onetoor one both or of both se of se questions questions a bluetoorserve blackaspen when outhave thisanswered form. are T are eligible T eligible for jury forservice. jury service. Use a blue or black penwhere when applicable. filling out this form. Tick boxes Tickout boxes blue or black pen when filling this where form. applicable. If Ifwish wish to be to permanently be permanently excused excused from from jury service, jury service, go go Tick where applicable. by Complete andboxes return return questionnaire to question to question D3 Orwise D3 Orwise go to go PART to PART F F Complete and questionnaire by Tick boxes given whereon applicable. deadline r Notice of Selection Complete and return questionnaire > If by If have have answered answered, go, to go question to question A3 A3 deadline given on r Notice of> letter. Selection letter. You may be fined don t. mpletedeadline and return questionnaire by given on r Notice offined Selection You mayif be if letter. don t. ine given on r offined Selection YouNotice may be if letter. don t. A4 A4PastPast PastPast or present or present occupation occupation continued continued or present or present occupation occupation You may be fined if don t. le p m ly n O Sa PagePage 3 of 12 3 of 12

20 Chapter 7 Part B: Disqualification Part B: Disqualification Part Part B: B: Disqualification Disqualification Some people are disqualified from doing jury service. Some are disqualified doing eir jury service. Pleasepeople answer every questionfrom by ticking or. SomePlease Some people people are disqualified are disqualified from from doing doing jury service. jury service. answer every question by ticking eir or. Please answer everyevery question by ticking eireir or. Please answer question by ticking or. B1 B1 B1 B1 If have been convicted of an offence or charged with an If have of an from offence chargedthis withincludes an offence been may convicted be disqualified juryorservice. If If have been have been convicted of an of offence an offence or jury charged orservice. charged withthis an withincludes an offence may convicted be not only offences in disqualified Victoria, butfrom also offences in or states; offence offence may be may disqualified be disqualified from from jury service. jury service. This includes This includes not only offences Victoria, but offences or states; however, mustindisregard anyalso conviction forinwhich have not only not offences only offences Victoria, in Victoria, but also butoffences also offences in or in or states; states; however, inmust been granted a freedisregard pardon. any conviction for which have however, however, must must disregard disregard any conviction any conviction for which for which have have been granted a free pardon. been been granted granted freeapardon. free pardon. Have aever been convicted of treason or an indictable Have and ever been convicted of treason or an indictable offence to: HaveHave ever and been ever been convicted convicted of treason or anor indictable an indictable offence to:of treason offence and and to: or more? offence imprisonment forto: 3 years imprisonment for 3 years or more? detention for 33 years years or more? more, a imprisonment imprisonment for for 3 years or or more? hospital detentionsecurity for 3 years ormade more, a order detention detention for 3security years for 3 years ororder more, ormade more, a a hospital section 93 of Sentencing Act 1991 hospital hospital security security order mademade section 93 oforder order Sentencing Act 1991 or an equivalent in anor section section 93 ofsentencing order Sentencing Actanor 1991 Act 1991 or 93 an of equivalent in or anor equivalent an equivalent orderorder in anor in anor Within past 10 years have been to: Within past 10 years have been to: Your answers this questionnaire will imprisonment foryears 3have months or more Within Within past will 10 past years 10 have been been to: to: Yourtoanswers to this questionnaire a imprisonment for 3 months or more decide wher are eligible to serve as juror. (excluding suspended sentence of Your answers to this questionnaire will decide wher are eligible to serve asfor aaa juror. imprisonment (excluding imprisonment 3 months for 3 months orsentence more or more suspended of imprisonment)? Your answers to this questionnaire will decide wher are eligible to serve as a juror. (excluding a suspended a suspended sentence sentence of of imprisonment)? Use a blue oreligible black when filling out(excluding this form. e wher areuse toorserve a juror. detention for form. 3 months or more, imprisonment)? imprisonment)? a bluepen blackaspen when filling out this detention for 3 months or more, a hospital security order made Use a blue or black penwhere when applicable. filling out this Tick boxes detention form. for 3 months for 3 months or more, ormade more, adetention hospital order Tickout boxes section 93 security of Sentencing Act 1991 or blue or black pen when filling this where form. applicable. a hospital a hospital security order order mademade section 93 security of Sentencing Act 1991 or Tick boxes where applicable. an equivalent order in anor Complete Complete and returnand return questionnaire by section section 93 of 93 ofsentencing Sentencing Act 1991 Act or 1991 or questionnaire by an equivalent order in anor Tick boxes given whereon applicable. deadline r Notice of Selection letter. anby equivalent an equivalent order order in anor in anor Complete and return questionnaire deadline given on r Notice of Selection letter. You be fined if by don t. mpletedeadline and return may questionnaire given on r Notice of Selection letter. Jury Jury Jury Jury Questionnaire Questionnaire Questionnaire uestionnaire You may be fined if don t. ine given on r offined Selection YouNotice may be if letter. don t. You may be fined if don t. > If have answered to one or more of se questions, please give details below: > If have answered to one or more of se questions, Name of offence/s Name of offence/s please give details below: Please note that it is an offence Please note that it is an offence Name of offence/s Name of offence/s Juries Act 2000 to give false or misleading Within past 5 years have : Within past 5 years have : Within past 5past years 5 years have : : for Within been tohave imprisonment up been to 3 months? to imprisonment for been up been to imprisonment to imprisonment for for to 3 months? been up to up 3 months? to 3 months? to detention for up to 3been detentionsecurity for up to months, toa hospital been 3been to detention to hospital detention for up for to up to months, security order made a section 93 of 3 months, 3 months, a hospital a hospital security security order made 93 of Sentencing Act 1991section or an equivalent ordersentencing order mademade section section 93 of Act 1991 or93anofequivalent order in anor Sentencing Sentencing Actanor 1991 Act or 1991 anor equivalent an equivalent order in been an intensive order order in anor in anor been an intensive correction order or an equivalent been correction been intensive an intensive oranan equivalent sentence inorder anor correction correction order or anor equivalent an equivalent sentence inorder anor been to a suspended sentence sentence in anor in anor sentence been to a suspended of imprisonment? been sentence been a suspended to a suspended oftoimprisonment? served a sentence of detention in a sentence sentence of imprisonment? of imprisonment? served a sentence of detention th training centre or th in a served th served a sentence a sentence ofcentre detention of detention in a in a training or equivalent th residential centre or an thresidential th training training centrecentre oror th or equivalent th an sentence incentre anor residential residential centre or anor equivalent an equivalent sentence incentre anor been community-based sentence sentence ingiven anor inaanor order, or been a community-based an given equivalent order in anororder, been or been given a community-based a community-based order,order, an given equivalent order in anor or an or equivalent an equivalent orderorder in anor in anor Within past 2 years have : Within past 2 years have : Within Within past 2past years 2 years have have : in: been by a court Victoria been by a court in Victoria (including Magistrates Court) or been been by amagistrates court by a court in Victoria in Victoria (including Court) or anor (including (including Magistrates Magistrates Court)Court) or or anor been released on an taking anor anor been released on an taking section 72 or 75 of been been released released on an72 on taking an75 taking section or Sentencing Act 1991, or of an equivalent Sentencing section section 72 or or of 75 or of an equivalent takingact in 1991, anor Sentencing Sentencing Act 1991, Act or anor equivalent an equivalent taking in 1991, anor taking taking in anor in anor Are currently: Are currently: Are Are currently: on bailcurrently: for an indictable offence that on bail forbeen an indictable offence that have charged with? on bail onfor bail an for indictable an indictable offence offence that that have been charged with? remanded in custody forwith? an alleged have have been been charged charged with? remanded offence? in custody for an alleged remanded offence? remanded in custody in Now custody for anfor alleged an alleged A that have completed PART offence? offence? and PART B, choose one of following What to do now What to do now Date of conviction or charge Date of conviction or charge / /or charge Date of conviction / / charge Date of conviction or Place of /conviction/ or charge / / or charge Place of conviction Place of conviction or charge Place of conviction or charge Term of detention, imprisonment, etc. Term of detention, imprisonment, etc. Term of detention, imprisonment, etc. Term of detention, imprisonment, etc. / Date of conviction or charge / / Place of conviction or charge / Place of conviction or charge You are disqualified from jury service. Go to PART F > If have answeredfrom, jury go toservice. question You are disqualified GoB2 to PART F Term of detention, imprisonment, etc. > If have answered, go to question B2 > If are available on specified dates and do not have a reason to defer or be excused from jury service, go to PART F le p m Date of bankruptcy / / /bankruptcy / Place ofbankrupts B2 Date of bankruptcy > If have answered to this question are disqualified from jury her go tof PART E go to PART Term of detention, imprisonment, etc. >Are If have answeredbankrupt?, go to question B2 Date of bankruptcy an undischarged Now that have completed PART A options: and PART B, choose one of following >options: If would like to defer jury service to Now have anor timethat within nextcompleted 12 months,part A > If would like tob,defer juryone service to following and PART choose of go to PART C anor time within next 12 months, options: > If go to would PARTlike C to be excused because of age,>illifhealth, disability, distance would like to defer or jury service to > If would like to be excused because certificate of exemption, anor time within next 12 months, of age, ill health, disability, distance or go to PART D certificate gooftoexemption, PART C > If go to would PARTlike D to be excused for > If would like to be excused because anor reason, of age, disability, distance or > If would like ill to health, be excused for go to PART E anor reason, certificate of exemption, > If available on go to are PART go toe PART D specified dates and do not have a reason to defer or be > excused If are on dates for service, > from Ifavailable jury would likespecified to be excused and do not have a reason anor reason,to defer or be go to PART excused fromfjury service, B2 Bankrupts You are jury service. Are andisqualified undischargedfrom bankrupt? Go topart F B2 Bankrupts Place of an bankruptcy Are undischarged bankrupt? 205 What to do now Please note that it is offence Juries Actan2000 to give false or misleading > If have answered to one or more of se questions, to evade jury service. Please note that itinformation is offence Juries Actan2000 toinformation give false or tomisleading evade jury service. give details below: Page 4 ofplease 12 Juries Act 2000 toinformation give false ortomisleading evade jury service. Page 4 ofname 12 of offence/s Name of offence/s Page 4Page of 124 of 12 information to evade jury service. Date of conviction or charge The criminal trial service. Go to PART F > If have / answered / to this question are disqualified from jury > If have service. Go answered to PART F, go to What to do now opposite ly n O Sa Place of bankruptcy > If have answered, go to What to do now opposite Source: extract from 12-page jury questionnaire, which provides additional information on eligibility. See student CD for fullpage jury5 of questionnaire 12 > If have answered to this question are disqualified from jury service. Go to PART F > If have answered, go to What to do now opposite Page 5 of 12

21 206 The Legal Maze Responsibility for decision-making is shared. The use of jury ensures that proceedings can be stood by average person. Shares decision-making The responsibility for decision-making is shared across jury. As a majority of jurors must come to same decision, re is much less chance of an incorrect or wrong decision. If, after six hours, a judge is satisfied that a jury cannot reach a decision, jury may be discharged. More time may be permitted if judge believes that a decision may be achieved. When a jury is discharged because it cannot reach a decision, it is called a hung jury, and case must be reheard before anor jury. While this can be costly and stressful for accused, victim and ir families, our system tries to ensure that correct decision is reached. Ensures that proceedings are fair The use of a jury means that community can see our justice system at work. This acts as a safeguard to accused as public can see if our courts are operating fairly. The presence of a jury also means that lawyers explain law and any or complex matters in a way that everyone can stand. In ory this means that both jury and accused can stand what is happening in courtroom. This also educates public about legal procedures.

22 Chapter 7 The criminal trial 207 Disadvantages of jury The use of jury system has been criticised for adding to length and cost of trials. Questions have also been raised about a jury s ability to stand complex cases. The jury system is not without its disadvantages or critics. The jury system raises following questions. Can a jury of 12 ordinary citizens really stand and recall all evidence in a trial, particularly in a complex or long case? Does use of juries make a trial last longer and thus cost more? Many people are ineligible and may be excused from jury service. Does jury represent a true cross-section of community? As deliberations in jury room are secret, and juries do not give reasons for ir verdict, how do we really know how y come to ir decisions? To overcome some of criticisms of jury system, some reforms have been suggested to improve system, including: appointing a professional foreperson, who would be able to explain court processes and ir role to or jurors reducing number of people on a jury in criminal trials making juries more representative of community increasing pay jurors receive making juries give reasons for ir decisions. An extreme suggestion is to abolish juries altoger in favour of trial by judge alone. Case file Focus on jury Jury research In 1997 Law Commission of New Zealand researched jury decision-making, which involved interviewing judges and jurors in a sample of 48 trials. At end of research, raw data was destroyed and re was nothing in research findings, published in 1999, to enable any individual trial or juror to be identified. The New Zealand study found that re were a number of difficulties faced by juries in performing ir duties. These included: At start of trial, jurors were not given written summaries of law or aids, such as flowcharts and lists of questions. The way evidence is presented affects jury comprehension, recall and assessment. Some individual jurors did not have skills to engage in a proper evaluation of evidence. More advice needs to be given to juries on how to structure ir decision-making. Jury misstandings about aspects of law are widespread. Many jurors are unsure how y can have ir queries addressed and feel marginalised during trial. At end of trial, some jurors feel need for counselling or debriefing.

23 208 The Legal Maze Do we need 12 people? The study found that before each jury delivered its verdict, judge was asked what verdict would have been if y had been sitting alone. A verdict by jury, which was eir fully supported by judge or supportable on evidence, was given in 35 out of 48 trials. However, in five of remaining trials, where jury convicted on some counts but acquitted on ors, judge and researchers would have convicted on all counts. In some of se cases, all jurors thought that accused was guilty of something, but differed as to nature and extent of that guilt and refore decided that guilty verdicts on some of counts would dispense justice, albeit rough justice. According to recent research, traditional jury of 12 men and women is too large and should be replaced by a smaller panel. Dominant and vocal members too easily sway decision-making in groups greater than 10 people. Simon Garrod, a professor of psychology, said individuals in larger groups tended to take turns to broadcast ir view and re was less scope for everyone to take part. People tended to bite ir tongues while louder, more opinionated members held forth, leading eir to a decision heavily influenced by a few members, or to acrimonious disagreement. The findings of a survey of 1385 jurors at Melbourne and country courts found that most viewed ir jury service as a positive and worthwhile community service. Jury offences It is an offence to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by jurors in course of ir deliberations. This means that research is restricted to general questions in questionnaires or simulation studies. No-one is allowed to interview jurors about how and why y reached ir verdict in any particular case. There are a number of or offences related to jury system. Attendance is compulsory. If someone is summoned to attend jury service and fails to attend, y can be fined and summoned to attend jury service at a later date. All jury deliberations are secret. Jurors are only allowed to discuss a case with or jurors. There are strict limits on what can be discussed even when case has concluded. Juror inquiries are illegal. A juror must not take an inquiry about trial matters except in ir duties as a juror. Making an inquiry includes consulting with anor person and/or conducting research by any means, such as using internet to search a database for information, viewing or inspecting a place or object that is relevant to trial, conducting an experiment and requesting anor person to make an inquiry. The fine for a breach is up to 120 penalty units. Employers must release full-time or casual workers for jury duty. The Juries Act 2000 (Vic) protects people called for jury duty. A juror cannot be made to take holiday or sick leave during this time. The trial judge may ask juries commissioner to speak to employer. An employer who threatens or terminates employment of a juror faces a fine of up to $ or jail for up to one year.

24 Chapter 7 The criminal trial 209 Investigating jury system The Victorian Law Reform Commission released a report on jury directions in July It was found that laws governing directions that judges gave to juries were so complex y threatened right to a fair trial. The commission called for all existing sources of law on jury directions to be replaced by one new piece of legislation. This report was prompted by a big increase in number of appeals in criminal cases. It also recommended new practices to help juries and more skills training for judges and lawyers. Almost one-third of all people convicted at trial between 2000 and 2007 appealed against ir conviction (137 retrials in Court of Appeal) and 41 per cent of appeals were successful. Errors in jury directions were a ground of appeal in 52 per cent of all successful appeals against conviction. The commission noted that it is important that court delays and appeals are reduced as it adds unnecessary hardship for victims due to trauma of a retrial. The commission made a number of recommendations that juries should be given a written outline of elements of alleged offences and a guide containing a list of questions designed to help m reach a fair verdict. It also recommended introduction of public defenders defence equivalent of Crown prosecutors along lines of similar schemes interstate. Judges should also be permitted to provide jury with written transcripts of proceedings. Charges (addresses) to juries can sometimes last days and it was clear that jury directions in Victoria were too long and complex. Jurors were less likely to reach fair outcomes if y could not follow judges directions. The government is also considering furr changes to jury pool to make m more broadly representative. A discussion paper has identified some occupations traditionally excluded from juries that should be considered for jury duty. Current and former police, lawyers, judges, bail justices, court reporters, MPs and office holders, such as Ombudsman and Auditor-General, are excluded from jury service until at least 10 years after ir retirement. However, police, lawyers and judges have been eligible to be on juries in United Kingdom since 2003 without any outcry or reported problems. Source: adapted from Herald Sun report, 29 and 30 July 2009 The homepage of Victorian Law Reform Commission

25 210 The Legal Maze Apply r standing Focus on jury Investigation 1 The jury system represents trial by one s peers. Explain selection and empanelment process for a jury in a criminal trial. Does this process guarantee trial by one s peers? Explain. 2 Jury decisions are conducted in secrecy. Present arguments for and against this practice. 3 In case file, what evidence is presented to show that jury takes ir task seriously? 4 What impact could media reporting have on operation of jury system? 5 Outline difficulties faced by jury in performing ir duties. What reforms have been put forward to increase value of jury? How effective would it make criminal trials if se reforms were introduced? 6 What are main criticisms of operation of jury system presented in case file? What impact would se criticisms have on effective operation of jury system in criminal trials? 7 A strength of jury system is that responsibility of decision-making rests on 12 individuals who reflect views of community. Discuss effectiveness of this statement. Critically analyse or advantages of using a jury in criminal cases. 8 What are consequences for illegal conduct in jury trial? Are se justified? 9 Does jury system provide for a fair trial? Discuss. 10 Since introduction of Juries Act 2000 (Vic) government has broadened jury pool to make it more representative of community. A recent report states that government is looking at furr expansion of this pool. Which groups are being considered and do see any issues for concern? Discuss. Difficulties in gaining access to law The Charter of Human Rights and Responsibilities was developed to provide all Victorians with right to equality before law and equal protection of law without discrimination. This applies regardless of a person s gender, age, status, nationality, belief or religion. However, some individuals find it difficult to access law, courts and legal system. This may be due to ignorance of law, difficulties in communication, problems in gaining legal representation, or not knowing how to obtain assistance. Some groups in community may have difficulty in establishing what law is or finding out about law. Ignorance of law and sources of assistance By this stage of textbook would have come across many examples of laws, legal processes and knowledge concerning a number of rights and responsibilities. As a Legal Studies student will have knowledge of a range of legal matters. However, most people have limited involvement in and standing of legal system in general and, as a result, many people adopt a need to know or just in time approach to gaining knowledge of law. The law states that ignorance of law is no excuse. Realistically we cannot hope to know all laws. However, we all have a responsibility to be aware of laws that regulate our activities. But how realistic is this expectation? People may be uncertain about law relating to ir behaviour for a number of reasons. Australia is a multicultural society. Individuals with a migrant background may not be familiar with legal structures or processes used in a system based on English legal system. Many of legal structures we have established are quite different from those in homelands of many migrants. People do not have to be from anor culture to be ignorant of law and of where to go for assistance and advice in Australian society. But how can individuals find out about se laws? Many people in our community may also have limited contact with lawyers, courts and legal system.

26 Chapter 7 The criminal trial 211 Lack of standing of English may limit a person s ability to know what law is or to exercise ir rights. Communication barriers Language can act as a barrier to access to law in two ways. First, if an individual has limited English y may find it difficult to eir express ir rights or to stand law. However, even those with a good grasp of English language may experience some difficulty in dealing with law. The language used in law can be complex. Some people have difficulties in standing it or knowing when to seek advice. For instance, a person charged with a criminal offence may not stand directions on summons or may be ignorant of existence of legal aid schemes. Migrants and criminal justice system Some important aspects of criminal justice process discriminate against migrants in our community. Migrants can lack standing of role of police in our criminal justice system and some migrants may be reluctant to report crime because y fear police. They may come from countries that have repressive regimes and may not see police as a source of help and protection. A suspect s fear of police can create serious problems during investigation of a crime. They may not stand different roles of police and courts nor ir rights in dealing with police. The process of bail can also create misstandings. The concept of bail is unique to common law countries. Terms such as recognisance, surety and, indeed, bail are not easily translated in or languages. A migrant may easily confuse bail with a fine. A migrant who makes this mistake may fail to appear in court on due date. This may result in issue of a warrant for person s arrest. Bail conditions may also be difficult for a newly arrived migrant. They may have difficulty satisfying court that y have community ties. Many migrants may not be familiar with operation of adversary system. A migrant who is more familiar with a European inquisitorial system may expect judge to act to protect ir interests. In inquisitorial system judge has a more active role in questioning witnesses and conducts an inquiry into offence. A person familiar with inquisitorial system may expect to be able to give ir own account of events rar than respond to questions. The evidence of a non-english speaking witness (or of a witness who is not fluent in English) may be distorted because y have misstood questions.

27 212 The Legal Maze The cost of legal advice may limit some people s access to legal system. Access to legal representation Lawyers are often first to be approached when people need legal help and advice. However, some people feel uncertain about seeking advice from lawyers. Some may feel intimidated by prospect of approaching a lawyer for help with a legal matter. They may not have financial resources to pay for legal advice or representation. These costs can mount up as y may include, for example, solicitor s or barrister s fees; preparation of documentation, letters and communication; attendance at pre-hearing, trial and sentencing procedures; and payments for expert witnesses, court costs and court documentation. If offence is minor, such as failure to pay a parking fine, cost of paying a lawyer could be out of all proportion to possible outcome. In some matters it may cost less to pay a fine than to seek legal assistance. Although legal aid is available in criminal matters, re are limits on types of cases that will be covered by legal aid. Many people appear in court, particularly in lower courts, without representation. Sources of legal advice Many agencies give free, or low-cost, advice. Community information centres (CICs) are a good starting point. These community-based organisations provide assistance across a range of community issues. They are staffed by volunteers. CICs provide many services, including: social and welfare work and counselling provision of legal advice legal aid. Legal aid services Victoria Legal Aid can provide legal assistance, legal advice, duty lawyer services and legal education as well as advice to government on need for law reform. Individuals can also access legal information using internet. For instance, Department of Justice or Victoria Legal Aid homepage provides basic information about operation of legal system. Legal aid is a broad term used to describe legal services available for people who cannot afford normal cost of services needed to resolve a legal problem. In Victoria, legal aid services are provided by Victoria Legal Aid, community legal centres and Victorian Aboriginal Legal Service. Who uses legal aid? A wide variety of people in need use services of Victorian Legal Aid (VLA). Of applications for assistance received, criminal matters account for about 64 per cent of requests, family matters 21 per cent and civil matters 15 per cent. The following profile outlines kinds of people assisted by VLA. Victoria Legal Aid figures for showed that most applicants were: male (81%) born in Australia (89%). age of 25 (39%) from an urban or local setting (70%) receiving a financial benefit from government (68%)

28 Chapter 7 The criminal trial 213 Victoria Legal Aid Victoria Legal Aid (VLA) is only official government body responsible for provision of legal aid. VLA provides services in five main areas. Legal assistance. VLA can provide an employed lawyer or private lawyer to assist people who complete an application form and meet its means, merits and guidelines test. At time of writing, remuneration rates for a private solicitor were $143 per hour with a maximum charge of six hours for one day at $858. Legal advice and information. The provision of free legal advice can be obtained from VLA office. Lawyers visit all prisons and juvenile justice centres and some community centres by telephone or in person. Duty lawyer services. These are available at all major Magistrates and Children s courts in Victoria. Duty lawyers can give advice and represent people who have not had opportunity to see a lawyer before going to court. The services of a duty solicitor on day cannot be guaranteed, however, as y must give priority to most serious cases and those cases involving people in custody. Community legal education. There are programs designed to inform and educate members of community about ir legal rights and responsibilities, such as do-itrself divorces and workshops on traffic summons. Information is provided about court procedures, preparing a case and likely outcomes. Law reform. It has ongoing involvement in processes of reform of laws and administration of justice system. The VLA does this by contributing submissions to Victorian Law Reform Commission and various committees in parliament. Legal Aid may provide services free of charge or for a small fee. Legal assistance is provided when applicant meets means, merit and guidelines test. Is it free? The VLA may provide legal assistance free of charge or it may require payment of a contribution. The amount of any contribution depends on applicant s financial situation. The criteria for provision of legal assistance are: financial means of applicant (means tested) merit of case and likelihood of success wher re is a benefit to community by taking on case. The means test assesses financial income of applicant and takes into consideration a range of factors, such as: a person s earnings from work or welfare benefits any assets, such as a house or car any financial support from a spouse, partner or relative. In most cases a person needs to be dependent on a social security benefit. If y own any more than a basic older car and have more than $ in home equity n y are not eligible for a grant of legal assistance. In some cases, VLA must provide legal representation. In case Dietrich v. The Queen in 1993, High Court stated that or than in exceptional circumstances, indigent people who are not represented in court would not receive a fair hearing. The Victorian Government passed legislation in that year that gives court power to order VLA to provide representation to those accused of a serious offence who cannot afford private representation. The VLA has limited financial resources to fund a wide variety of cases. Unless governments are prepared to spend more on provision of legal aid services, or legal costs are lowered, access to law may be compromised.

29 214 The Legal Maze A day in life of a duty lawyer Have ever wondered what role of duty lawyer would be like? Here is a personal account of an in-house duty lawyer working in one of states busiest courts, Melbourne Magistrates Court. Can imagine turning up to court after receiving a summons by police and not talking to a lawyer beforehand? Imagine not even standing what have been charged with. What are r rights in se cases? Well, re are many people who fall into this group and this is a big part of my job. The Melbourne Magistrates Court is a daunting and intimidating place. Before even get into courtroom re is a thorough security check and scan by court security. Our office is inundated by requests for help and those who visit stand that it is our role to assist. Here are some of issues our office has to deal with in one day. I start off with listening to a pensioner s story. He has been unable to pay his electricity and gas bills. At this stage he owes hundreds of dollars to a power company. After receiving numerous letters and phone contact he failed to make his payments. He was served with a summons to appear and has no idea of how to solve this problem. After talking to my client and working out a basic payment plan I approach lawyers representing power company and offer a solution on his behalf. No sooner had I finished with this case and anor is awaiting at door. Our office operates at a chaotic pace. My colleague is on his way down to cells to provide advice to a man caught breaking and entering. He has no legal representation and magistrate in Courtroom 2 wants to make sure he stands his options. He was refused bail and has been in custody for two weeks. The prosecutor requests a duty lawyer to assist a migrant woman who has been a victim of family violence. She has been in emergency accommodation for three nights, but is unsure how to proceed with an intervention order against her partner. This is a big part of our work and many people do not stand consequences of this type of order. An elderly couple walks into our office. Their daughter has been in custody from night before as a result of drug usage. They want her to get help, but have no standing of what to do. Imagine all this and it s not even 11am. Note: This is an author written article Community legal centres can provide legal advice and in some instances may arrange for legal representation. Community legal centres (CLCs) There are more than 27 community legal centres across Melbourne and rural Victoria funded primarily through grants from Victoria Legal Aid and Commonwealth. Community legal centres (CLCs) in Victoria offer free advice and are staffed by lawyers as well as by voluntary staff and non-legal personnel. While range of services can vary between centres, y are a good starting point for a person to obtain advice, sort out ir problems and determine ir eligibility for assistance if y need to take ir problem furr. Through se centres, lawyers may be available to clients in need of court representation. The larger services may arrange for clients legal representation in court. These services are a good source of legal advice and assistance for many different problems. When court representation is required, CLC can arrange representation for clients who demonstrate an element of financial need. In difficult or serious cases, CLCs will make arrangements for legal assistance through VLA.

30 Chapter 7 The criminal trial 215 Law Handbook www. lawhandbook.org.au. Fitzroy Legal Service has solicitors on duty, as well as social workers and counsellors to offer a full range of assistance. The centre also publishes a reference book each year with up-to-date legal information as a public education service. It is available online at The Law Handbook site. Victoria has one community legal centre catering only for ng people. Called Youthlaw Centre, it operates from Melbourne and coordinates services for ng people. The Victorian Aboriginal Legal Service provides legal assistance and representation for Aboriginal people. Victorian Aboriginal Legal Service If an Aboriginal person is taken into custody, police must inform Victorian Aboriginal Legal Service (VALS). VALS provides legal advice and assistance to Aboriginal and Torres Strait Islander people. VALS will contact a client services officer who will try to speak to person to offer support and advice. If re is an Aboriginal Justice Panel operating locally, police must contact it. A panel member can give person support and advice. The person may be released into care of panel if case is less serious. Lawyers may sometimes offer ir services free of charge through Legal Assistance Scheme or pro bono. Legal Assistance Scheme The Legal Assistance (pro bono) Scheme is administered by Public Interest Law Clearing House (PILCH) and relies on private lawyers giving ir time and expertise free of charge (which is meaning of pro bono). This scheme was established to help residents of Victoria who cannot afford legal services y require or cannot be assisted through or agencies. The scheme is open to people who live in Victoria or if matter dispute happened in Victoria. Applicants must try or avenues of assistance first. Victorian Legal Assistance Forum The Victorian Legal Assistance Forum (VLAF) is an initiative involving providers of legal assistance. VLaf recognises that legal assistance is a limited resource and aim of this organisation is to provide legal services for people who suffer from social and economic disadvantage. The forum brings toger a range of legal services which are coordinated as opposed to ad-hoc nature in past thus reducing duplication or overlapping of programs. For furr information about VLAF please visit website: Or legal services Private organisations will sometimes offer legal services to ir members or clients. Trade unions, for example, may have some form of agreement with private solicitors to advise and assist union members. Tertiary institutions, such as universities, provide legal services for students on ir campuses. Staff at se services will write letters, conduct negotiations and arrange for court representation, if necessary. Increased community awareness Education and media have been used to increase public s awareness of and access to law. Law-related education is taught in schools. Particular laws affecting many people are publicised through advertising, such as those relating to drink-driving legislation. Although it is costly, perhaps this avenue should be used more frequently to publicise everyday laws. All governments should be concerned to maximise access to law and legal system.

31 216 The Legal Maze Case file Unequal before law When going to court is not a choice For a person who has been charged with a criminal offence, appearing in court is not a choice. Defendants who cannot obtain legal assistance are forced to represent mselves. This places se individuals at a significant disadvantage. They may not be familiar with operation of criminal justice system and consequences of court action. Unrepresented defendants may not have an adequate standing of law. They may not know what evidence y need to present to court to support ir case. They may waste court time presenting irrelevant material. An unrepresented defendant needs skills to ask right questions and necessary objectivity to present a proper defence. Furrmore, y may not stand range of sanctioning options available to court. They may refore receive a harsher sanction than a defendant with legal representation. There are many groups in our community who may have difficulty in gaining access to legal services. Poverty Poverty is most significant barrier to a person s ability to access justice. Financial disadvantage is often inextricably linked to health, social and legal problems. Relationship pressures, problem gambling, incidental and opportunistic crime, and alcohol and substance abuse are strongly associated with financial difficulties and frequently lead to legal problems. Indigenous people The experience of Indigenous Australians within criminal justice system was welldocumented by Royal Commission into Aboriginal Deaths in Custody. The commission reported that Indigenous Australians are overrepresented in criminal justice system. They are more likely to be arrested for minor offences and more likely to be held in custody. Although Aboriginal legal aid services are provided, re are ongoing concerns about funding for se services. People in rural and remote areas People living in rural and remote areas also face difficulties in accessing legal help. These difficulties include a lack of lawyers with particular expertise, conflicts of interest, high transport costs and need to rely on telephone advice services rar than personal contact. Many of those living in rural and remote areas of Australia do not have access to legal aid or free legal services. A number of initiatives have been implemented to address this problem. These initiatives include outreach programs, duty lawyer schemes and use of videoconferencing or telephone advice services. These services are not a substitute for face-to-face services and re is a shortage of lawyers in non-metropolitan areas. Migrants and refugees Migrants and refugees experience significant problems in ir dealings with criminal justice system. These include language and literacy issues; confusion about where to obtain

32 Chapter 7 The criminal trial 217 information; lack of standing of legal system; and different cultural expectations and beliefs about family, marriage, relationships and responsibility for children. There is a need for greater funding for interpreter services. Homeless groups and mentally ill Homeless people and mentally ill may also face particular barriers in gaining access to justice. There is often a link between mental illness and homelessness. The lack of legal representation for se people may mean that y are deprived of ir liberty for extended periods. The vulnerable in community need access to legal representation and assistance to protect and enforce ir rights. Older people Older people can face significant problems in accessing services. As well as concerns about ir financial future after leaving work force, y may be facing difficult decisions about living options, such as nursing homes or retirement villages. They may also be confused about estate planning, and feel pressure of expectations to support ir children and grandchildren. Older people can also be vulnerable to scams and exploitation. With deterioration of ir health and mobility, y can be disadvantaged in accessing information in an increasingly computer-based society, and may lack confidence in accessing help. Young people Young people may face difficulty in obtaining legal assistance because y lack standing of th services, law and operation of court system. Diverting ng people from criminal justice system is particularly important. Research indicates that many adult offenders had contact with criminal justice system when y were ng. Women Women can suffer particular disadvantage in obtaining help with family and civil law problems, and are especially at risk in situations of family violence. Limited financial resources remain a major concern for many women, particularly in cases of family breakdown. Justice for all One indicator of how well our system of justice is working is how we treat most vulnerable and needy in our community. The number of defendants who appear before courts without legal advice or representation indicates that our legal aid system is in crisis. Research indicates that courts are dealing with more unrepresented defendants. It has been suggested that reduced legal aid funding is directly responsible for people going to court without legal representation. Various initiatives have been introduced to address se disadvantages. Legal aid bodies have established duty solicitor schemes at some courts. More information is being made available to public through information booklets as well as via internet. Community legal centres have experienced an increased demand for ir services. These centres assist many disadvantaged groups who cannot afford legal representation but who are not eligible for legal aid. Many of se centres are facing a funding crisis. Increased funding of legal aid services is essential to improve access to justice for all Australians.

33 218 The Legal Maze Apply r standing Unequal before law Structured questions Read case file, n answer following questions. 1 Explain ways in which an individual charged with a criminal offence may be disadvantaged if y do not have legal representation. 2 Draw up a table similar to one below. Group How y are disadvantaged? Check r standing How do think this impacts on justice being achieved? How can we overcome se problems? a List different groups in community that may experience disadvantage in ir dealings with criminal justice system. b For each group that have identified, explain disadvantage that y may experience. c Suggest how difficulties that have identified affect capacity of criminal justice system to achieve justice. d Identify a number of reforms to overcome above problems and discuss impact of se reforms on our legal system. 3 All people are equal before law. Therefore, increased access to legal aid services is an essential component of improving access to justice for all Australians. a What is legal aid and do agree with statement above? Present a reasoned argument to support r answer. b Describe role and function of Victoria Legal Aid. c What or services provide legal assistance and advice? Explain. 1 What is an adversary system of trial? 2 Outline five key features of adversary trial. 3 Suggest reasons why we use an adversary method of trial. 4 Using dot points, list steps or stages in a criminal trial after defendant has entered a plea of not guilty. How is this different when defendant pleads guilty? 5 Outline pre-trial process leading up to hearing of a summary offence. 6 What is a mention hearing? Why are mention hearings used? 7 What is a committal hearing? 8 How does hand-up brief process differ from a committal hearing? 9 What is a jury? When will a jury be used in a criminal case? 10 How do we determine who is eligible for jury service? 11 Suggest reasons why some people may not be allowed to do jury service. 12 Draw up a table similar to one below. In one column, list advantages of jury system. In or column, list disadvantages. Advantages Jury system Disadvantages 13 What possible changes could be made to jury system? Suggest reasons why se changes may be needed. 14 Suggest reasons why some people may experience difficulty in accessing law. 15 Explain nature of legal assistance offered by following: a Victoria Legal Aid b community legal centres c Aboriginal Legal Aid d Legal Assistance Scheme.

34 Chapter 7 The criminal trial 219 Apply r standing Internet investigation Human Rights Law Resource Centre www. hrlrc.org.au. The UN International Covenant on Civil and Political Rights www. hrweb.org/legal/ cpr.html. US Bill of Rights house/educate. shtml. Canadian Bill of Rights www. answers.com/ topic/canadianbill-of-rights. Democratic and human rights 1 Investigate Convention on Rights of Child (CROC) at croc/home.html. What impact does CROC have on Australia? Provide examples. 2 Go to Human Rights Law Resource Centre website and find tab Recent Victorian charter case notes. Do an investigation of recent cases and identify how y apply to Victoria. 3 Draw up a table similar to one below. Choose one of following countries Canada, New Zealand, South Africa or United States and compare and contrast democratic and human rights in two countries. Comparing approaches to human rights Australia Or country How are rights protected? What sorts of rights are protected? How are democratic and human rights enforced? How are democratic and human rights limited? What involvement do courts have with democratic and human rights? What impact do democratic and human rights have on each parliament? Case study Jury selection A ng, unemployed man has been charged with murder of an elderly woman. It is alleged that he assaulted woman with intention of stealing her purse. The woman fell during assault and struck her head on footpath. She died as a result of injuries. You are representing defendant. 1 Explain role of jury in this case. 2 Outline process that would be used for selection of jury. 3 The following people have applied to judge to be excused from jury service. Do think that y should be excused? a a mor of three secondary-aged schoolchildren b a VCE teacher supervising a Unit 3 and 4 subject c a pregnant woman d a retired man who has planned a holiday e a part-time casual worker who is concerned that she will lose her job. 4 Would advise r client to challenge any of following possible jurors? Suggest reasons for r decision. a a ng man wearing dreadlocks and a free refugees badge b two men in ir mid-20s wearing suits and ties c an elderly woman wearing a hearing aid and using a walking stick d a ng woman carrying a copy of Big Issue magazine e an unemployed ng woman fidgeting nervously as she waits f a heavily tattooed man in his mid-20s g a middle-aged woman wearing a tracksuit and reading a women s magazine h a middle-aged man who is reading a book i an elderly man wearing a suit and an RSL badge j a middle-aged man of Asian appearance k a middle-aged woman wearing a head scarf that suggests she may be Muslim l a man with a long beard, wearing shorts and sandals.

35 220 The Legal Maze Structured questions Bullying and human rights Read article below, n complete questions that follow. Four fined for workplace bullying THE parents of Brodie Panlock, 19-year-old waitress who killed herself because of relentless workplace bullying, want to sue her tormentors. Damien and Rae Panlock want real justice after four men were convicted and fined a total of $ In a poll taken by Herald Sun in February 2010 on wher workplace laws should be changed to allow bullies to be jailed, results were overwhelming. Yes 93.63% No 6.37% Former workmates Nicholas Smallwood, 26, Rhys MacAlpine, 28, and Gabriel Toomey, 23, all pleaded guilty in Melbourne Magistrates Court to failing to take reasonable care for health and safety of persons. Smallwood was fined $45 000, MacAlpine $ and Toomey $ The cafe s owner, Marc Luis Da Cruz, and his one-man company MAP Foundation pleaded guilty to two charges, including failing to provide and maintain a safe working environment at Cafe Vamp in Hawthorn, in Melbourne s inner east. MAP Foundation was fined $ each on its two charges while Da Cruz was fined $ each for two similar charges. The magistrate said re was a poisonous atmosphere among staff at cafe with persistent bullying, although Ms Panlock was singled out for a greater degree of bullying. In one incident, Smallwood and MacAlpine poured fish sauce over her. Ms Panlock had tried to kill herself in 2006 by ingesting rat poison and had spent three days in hospital before returning to work where she was again taunted by men who called her fat and ugly. Her mor said anor waitress at cafe, Meghan Chester, had warned men to stop bullying Brodie, but it went largely unheeded. I never will stand why people can be so cruel, Mrs Panlock said. They were relentless every day for six days a week. Mr Panlock said family would like to instigate civil action against four men. It s been three-and-ahalf years and if it takes anor three-and-a-half years to get some real justice we can sit back and say we ve done as much as we possibly can, Mr Panlock said. I d like to take it furr we ve been dealing with it over three years now and in three years nothing really happened only now things are coming to front, she said. Mrs Panlock pleaded for people, particularly in small businesses, to show compassion toward ir workmates. Think before r actions in workplace if have nothing nice to say don t say anything, she said. If Brodie had been working in a caring environment I wouldn t be here today. Source: adapted from Herald Sun, 8 February 2010 South African Bill of Rights za/documents/ constitution/ 1996/96cons2. htm. New Zealand Bill of Rights www. humanrights. co.nz/. 1 What human rights relate to this case? 2 Discuss arguments for and against issue of wher workplace laws should imprison bullies. 3 Refer to Charter of Human Rights and Responsibilities Act and identify which human right has been breached in this case. 4 Find out about r school s anti-bullying policy and evaluate its effectiveness according to Charter of Human Rights and Responsibilities. Research activity Comparing criminal justice systems Using library, find resources on inquisitorial system and compare and contrast key features of adversary and inquisitorial systems of trial. Draw up a table similar to one on following page.

36 Chapter 7 The criminal trial 221 Elements Role of parties Role of judge Role of legal representation Rules of evidence and procedure including sentencing Presumption of innocence Adversary system Research report Reporting on criminal justice system Inquisitorial system You re a journalist for a regional newspaper. You have been appointed law reporter and been asked to write a word article on one of following topics. 1 Is role of a judge in adversary system similar to that of an umpire during a football match? 2 Judges need to take more control. The judge in a trial should become much more involved in way case is presented and handled. 3 Does adversary system search for truth? Critically evaluate two major features of adversary system of trial. Brochure/webpage Jury duty 1 Prepare a brochure or page/s for a website on jury duty. This should include: a role of jury b importance of jury service c who can be on a jury d how a jury is selected. 2 Prepare a brief statement about advantages and disadvantages of jury system. 3 Identify three reforms and three alternatives to jury system and critically evaluate likelihood of ir introduction. (Reforms are improvements to existing system whereas alternatives are used to replace what is re at moment.) Case study Impartial jurors The following case attracted a great deal of media controversy. Read case study, n discuss likelihood of obtaining a fair trial with impartial jurors in this case? Underbelly In 2008, Victorian Supreme Court judge Justice Betty King issued a suppression order prohibiting broadcast of television series Underbelly until conclusion of a murder trial. Underbelly was a graphic television dramatisation of Melbourne s world war. The judge stated that characters portrayed on show may prejudice a jury. Under order, anyone in Victoria caught exhibiting or transmitting Underbelly faced prosecution for contempt of court. Justice King said it was more important that criminal justice process worked than Channel Nine make a profit. It was estimated that Nine would have paid about $ on court costs and lost about $2 million in advertising revenue.

37 222 The Legal Maze Case study Jury reform Read article below, n complete questions that follow. Reform of jury system IT would be fair to say that re is widespread support for using juries in criminal cases. If ask average person in street, most would say that juries safeguard liberties of pubic, and that 12 people called at random are able to apply a reasonable person s standard to criminal prosecutions. Let s be honest, average person has little (or no) trust in lawyers, and if y are going to be prosecuted for ir sins, y would rar have ir peers make ultimate decision of guilt or innocence. Tampering too much with jury system may, in all likelihood, affect public s confidence in administration of justice. True, we expect judges to ensure that criminal trials are conducted in a fair manner, but in final analysis we want to leave verdict in hands of people. Note: This is an author written article 1 This article suggests that re is widespread support for use of juries. Explain key advantages of jury system. 2 The article concludes that we should not tamper with jury system. Evaluate one reform, or suggested reform, to jury system that would affect its ability to deliver justice fairly. Case study Jury system Read article below, n complete tasks on following page. Does jury system always get it right? ON night of Saturday, 18 February 2006, a car veered into a group of teenagers as y left a sixteenth birthday party near Mildura. Six were killed. Thomas Towle, formerly of Red Cliffs, was charged with a number of driving offences. In 2008 Towle, aged 36, appeared before Victorian Supreme Court. After deliberating for three days, jury of six men and six women found him not guilty of six counts of culpable driving, which carries a jail term of up to 20 years. He was found not guilty of four counts of driving negligently. However, he was found guilty of 10 counts of dangerous driving. Dangerous driving carries a maximum penalty of five years. Towle, who had been in custody since his arrest, just on two years ago, was also found not guilty of two counts of reckless conduct endangering serious injury, one count of failing to stop after an accident and anor of failing to render assistance after an accident. Towle pleaded not guilty to charges. The families of victims were very upset by verdict. Mildura Senior College chaplain Colin Cole read a statement on behalf of victims families. He said victims families were sad and shocked and that defence had been very clever in convincing jury that driver had not committed a serious crime. The court was told that Towle had his four-year-old son on his lap and was speeding when he lost control on a bend and crashed into teenagers. Prosecutor Mark Gamble SC told court that Towle drove in a shocking manner, failing to see bend until it was too late because he was not concentrating. Defence barrister Robert Richter QC urged jurors to apply ir intellect, not emotion. He told jury that driver was not a serious criminal. Outside court, Mr Richter told waiting media that jury system always got it right. Towle was consequently jailed for 10 years. Justice Cummins set a non-parole period of seven years. Note: This is an author written article

38 Chapter 7 The criminal trial Discuss Robert Richter s view that juries always gets things right. Defend position that jury system always gets it right. 2 Was sentence appropriate for crime? Discuss. Annotated visual display Access to justice 1 Allocate one of following organisations to each student in r class and take following research activity. a Child Safety Commissioner b Consumer Action Law Centre c Domestic Violence Resource Centre Victoria d Federation of Community Legal Centres e Fitzroy Legal Service or Law Handbook f Human Rights Law Resource Centre g Itsallright h Job Watch i Kids Helpline j Law Institute of Victoria k Lawstuff l Legal online m Magistrates Court n Office of Police Integrity (OPI) o Ombudsman Victoria p Relationships Australia q Rural Law Online r Women s Legal Service Victoria s Youth Referral and Independent Person Program t Victorian Aboriginal Legal Service u Victoria Law Foundation v Victoria Legal Aid w Victorian Equal Opportunity and Human Rights Commission x Youth Central y Youthlaw z or 2 Using information from task 1, design a poster to inform people about possible sources of advice and assistance in relation to criminal and legal matters. Your poster should include following information for each organisation: name of organisation contact details information provided nature of assistance offered (provide a range of examples) a list and description of useful publications related to criminal law any limitations on provision of eir legal advice or assistance.