HSC Legal Studies · The Crime Core (30%)

Chapter 3
The Criminal Trial Process

Courts, personnel, pleas, proof, evidence, defences and juries · NESA Syllabus 2009
Where we're going

By the end of this chapter you can…

3.1

Court jurisdiction

3.1 Jurisdiction

Original vs appellate

Original jurisdiction

Hears a matter for the first time.

Appellate jurisdiction

Reviews a lower court's decision on appeal.

A higher court can review a lower court — never the reverse. Which court hears a case depends on the nature & severity of the offence and the accused's age.

3.1.1 & 3.1.2 Lower courts

Children's Court & Local Court

Children's Court

Closed court, specialist magistrate, no jury. Under-18s. Focus on rehabilitation. Serious indictable matters go higher. Children's Court Act 1987.

Local Court

Magistrate, no jury. Summary offences, committals, bail. Fast & cheap. Coroner's Court sits alongside (deaths & fires).

3.1.3 Superior courts

District, Supreme & Court of Criminal Appeal

District Court

Judge + jury. Most indictable (incl. manslaughter). Appeals from Local/Children's. Not murder.

Supreme Court

Judge + jury of 12. Most serious — murder, treason. Highest formality & penalties.

Court of Criminal Appeal

Usually 3 judges. Criminal appeals from District/Supreme — law, conviction, sentence.

3.1.4 The apex court

High Court of Australia

Commonwealth offences are usually heard in state courts exercising federal jurisdiction, prosecuted by the Commonwealth DPP.

3.2

The adversary system

3.2 Adversary system

Two sides before an impartial umpire

Prosecution v defence present their cases to an impartial judge or jury. Inherited from English common law.

Adversary (us)

Parties gather & present evidence; judge is a passive umpire.

Inquisitorial

The judge investigates and questions — used in much of Europe.

Solicitor = advice & prep, out of court · Barrister = court advocate, in court.

3.3

Legal personnel

3.3.1 & 3.3.2

Judges & magistrates

Magistrate

Local Court. No jury — decides guilt and sentence. Summary offences, committals, bail.

Judge

District/Supreme. Rules on law & evidence, directs the jury, imposes the sentence.

In a jury trial: judge decides the law, jury decides the facts (guilt).

3.3.3 Prosecutors & defenders

Who represents each side

Police prosecutor

Trained NSW Police officer — summary matters in the Local Court.

DPP

Independent office — prosecutes serious indictable offences; decides what to charge, free of politics.

Public Defenders

Salaried barristers who defend the accused in serious matters (usually on legal aid). Public Defenders Act 1995.

DPP prosecutes; Public Defenders defend — both publicly funded, for equality of arms.

Specialist courts

The Drug Court

A problem-solving court that aims to break the cycle of drugs and crime through supervised treatment instead of straight punishment. Drug Court Act 1998 (NSW).

A strong example of discretion and rehabilitation.

3.4 & 3.5

Pleas, negotiation & representation

3.4 Pleas & charge negotiation

Guilty, not guilty — and deals

Pros

Saves cost, delay & trauma; certainty; spares witnesses.

Cons

Pressure; an innocent person may plead; can sideline victims.

3.5 Representation & legal aid

A fair trial needs a lawyer

Legal Aid NSW

Aid granted on a means test (income/assets) + merit test (prospects). Targets the disadvantaged; the "missing middle" can miss out.

The safety net

No absolute right to counsel — but a serious trial may be stayed if lack of representation makes it unfair.

Dietrich v The Queen (1992) 177 CLR 292

The key High Court authority on legal representation and the right to a fair trial.

3.6 & 3.7

Proof & evidence

3.6 Burden & standard of proof

Who proves — and how much

Burden = WHO

On the prosecution. The accused is presumed innocent and need not prove innocence.

Standard = HOW MUCH

Beyond reasonable doubt — a very high bar (cf. civil: balance of probabilities).

A few defences shift a burden to the accused, but only on the balance of probabilities.

3.7 Evidence & witnesses

Only admissible evidence counts

Evidence must be relevant and lawfully obtained (Evidence Act 1995 (NSW)). Types:

Real

Physical items — weapon, DNA.

Documentary

Records & documents.

Witness

Sworn testimony; lying = perjury.

Expert

Specialist opinion — persuasive but not infallible.

3.8

Defences to criminal charges

3.8 Complete defences

If successful → full acquittal

3.8 Partial defences to murder

Reduce murder → manslaughter

Extreme provocation

Provocation must be a serious indictable offence; non-violent sexual advance excluded. Crimes Amendment (Provocation) Act 2014; s 23.

Substantial impairment

Abnormality of mind from an underlying condition; intoxication excluded. s 23A — replaced "diminished responsibility".

Correct the notes: duress is not a murder defence, and the provocation reform is 2014.

3.9

The role of juries

3.9 Juries — selection

Twelve citizens from the roll

Selected at random from the electoral roll; usually 12 jurors in a criminal trial. Jury Act 1977 (NSW).

Peremptory challenge

Reject a juror with no reason (limited number — 3 per accused).

Challenge for cause

Reject for a stated reason (e.g. suspected bias) — unlimited but justified.

Eligible: citizens 18+ on the roll. Some are ineligible/disqualified or excused for cause.

3.9 Verdicts

Unanimous, majority & hung

R v Gittany (2013)

Judge-alone murder trial — used to avoid prejudicial publicity.

R v Xie

Lin family murders — multiple hung juries before conviction (2017).

Jury decides the verdict; judge decides the sentence.

3.9.1 & 3.9.2

Juries: worth it? Evaluating effectiveness

Advantages

Community participation; reflects community standards; 12 minds dilute bias; tests the state's case.

Disadvantages

Hidden prejudice; long trials disrupt lives; no reasons given; hung juries cost time & money.

To evaluate the trial process, weigh each element against the rights of accused, victims & society, discretion and access to justice.

End of Chapter 3

Recap & check

Hierarchy & jurisdiction · adversary system & personnel · pleas, negotiation, representation & legal aid · burden = prosecution, standard = beyond reasonable doubt · evidence · complete vs partial defences · juries & verdicts. This completes the Crime core — revise with the Study Guide.
1 / 0