Underling Principles of the Criminal Law System
What are the two elements of a Criminal Offence?
The Guilty Mind (mens rea)
The prosecution must prove that the accused had the mental intent to commit the crime. That is, the accused planned to commit the homicide in advance of the actual commission of the crime.
The Guilty Act (actus reus)
The prosecution must also prove that the person actually commtted the criminal act. If both elements cannot be proved, the accused must be committed.
True or false: Juries have to give reasons for their verdicts.
False - A jury deliberates in private and does not give reasons for their verdicts.
List three types of Admissible Evidence
- Direct evidence (heard, felt, smelt, seen) by an eye-witness who can testify in court
- Indirect circumstantial evidence that facts can be inferred from (fingerprints, DNA)
- Primary (objects, artefacts, weapons, etc)
- Secondary (CCTV of a murder weapon, etc)
- Expert Opinions
Define ADR
Methods of settling civil disputes without recourse to litigation in formal courts.
List the two sources of Law in Australia
Parliament and the Courts
List 3 Underlying Principles of the Adversary System.
-Rule of Law
-Natural Justice
- Judicial Independence
-Right to Know
- Right to be heard
-Burden to prove
This common law principle, reflected in legislation, prevents an accused who has been acquitted from being tried again for the same offence.
Double Jeopardy
List 3 types of inadmissible evidence
- Hearsay
- Illegally Obtained
- Opinion
- Past Criminal Record
True or false, In Independent arbitration, the arbitrator can question the parties, call witnesses and examine evidence.
What is meant by the term Representative Government.
A system of government where members of the community are elected as decision makers and law makers by the people.
of the people
by the people
for the people
What is the role of a judge? (be specific)
- To enforce the rules of evidence and procedure to ensure a fair trial
- Determine all questions of law (e.g. admissibility of evidence)
- Determine the facts in civil cases and criminal cases without a jury
What is purpose of the Third Schedule of the Juries Act 1927?
List 2 reasons why we have rules of evidence
- Fairness (fair & equal opportunity for both parties to present their case, both parties play by the rules)
- Efficiency (Deters cases that lack evidence going to trial - saves money and court time)
- Protect Rights (prevents law enforcement from soliciting evidence that breaks that law)
- Public Confidence (protects the integrity of the justice system)
Self-help, conceding a claim and abandoning a claim use this category of ADR
List 2 Key features of Judicial Independence
- Appointment and dismissal
- Permanency of Tenure
- Fixed Renumeration
- Judicial Privilege - Can't be sued for defamation, etc
- Free from Influence - Can't be a part of a political party
List 4 rights of the accused
•The presumption of innocence
•The right to remain silent
•The right to challenge the admissibility of evidence in a trial
•The right to cross-examine the prosecution’s witnesses
•The right to a trial by jury
•Adherence of all parties to the strict rules of evidence and procedure in order to hold a fair trial (for example, the right to have access to all the prosecutor’s evidence against them before a trial so they can prepare a defence).
•The principle of double jeopardy
•The right to be heard
•The right to legal representation, if they wish to have it.
What are the two stages to putting a jury together? Summarise both steps.
1. Compiling Jury Lists: Random selection of prospective jurors from the community (checking for eligibility)
2. Empanelling: The random selection of a specific jury for a criminal trial (basically selecting the 12 to sit in on a trial)
Hint: Think about Coco v R [1994]
Mediation, Conciliation and independent arbitration use this category of ADR.
ADR by third party intervention
What are the 4 roles/purposes of Parliament.
Democratic
Scrutinising
Supply
Legislative
What occurred in R v Che [1995] at the conclusion of the prosecution's case?
Justice Bollen asked the jury to consider a not guilty verdict at the conclusion of the prosecution's case, as it was considered very weak.
Key Takeaway: The defence are not always required to present a defence case at trial if it is deemed unnecessary.
Why is it important that jurors are not 'forced' to come to an agreement? (Hung Jury).
- The standard required to return a guilty verdict is strict, otherwise there is a risk innocent people may be sent to prison.
- Hung jury indicates that evidence was unclear/weak/contradictory - better to retry the case than risk an unfair verdict.
- Additionally, jurors will be exposed to increased pressure to make/change their decision to ensure an outcome is reached.
This would undermine confidence in the Jury process.
- We prioritise fairness over efficiency here
In the case of Coco v R [1994]
Why was Santo Antonio Coco able to successfully appeal his conviction?
Because the evidence gathered against him had been illegally obtained.
Mr Santo Antonio Coco was convicted in Queensland of offering to bribe a Commonwealth officer. A significant portion of the evidence used against Mr Coco in court was captured on a listening device that had been installed on Mr Coco’s telephone by two federal police officers, dressed as telephone repairmen. Mr Coco initially appealed his conviction to the Supreme Court of QLD, which upheld his conviction.
Mr Coco appealed to the High Court of Australia, arguing that while the judge who had granted the policemen the authority to install the listening device in his telephone had done so legally, the legislation did not grant the policemen the authority to enter his property and install the device; subsequently, breaching his right to privacy, which was protected by the Invasion of Privacy Act 1971 (QLD).
List 3 advantages of ADR over litigation
- Faster
- Less Costly
- More flexible to individual needs of the people involved
- Informal
- Confidential
- Conserving goodwill (note escalating the conflict)
Decentralise Law making - lets elected local councils legislate to meet local needs
Relieve the Workload of Parliament
Technical expertise
Quicky response to emergencies
convenience
Political considerations - back-door method if faced with a hostile upper house.