The criminal trial process is a vital part of the criminal justice system in NSW as it plays a fundamental role in achieving justice, by determining the innocence or guilt of an offender. Yet, despite the criminal trial process still having many complex issues that remove it of achieving its full means of justice, the process has stood the test of time and lasted for more than two centuries. It aims at lawfully and justly providing victims, offenders and society with the rights of a fair trial. The hierarchies of courts play a crucial role in effectuating justice for the community.
The courts jurisdiction is the extent of the court’s authority and is often determined by the hierarchy. The lowest form of court is the Local Court. The Local Court Act 1982 (NSW) outlines the offences that are heard in this court. They are less serious crimes, where matters are tried summarily, but are also the location for bail and committal hearings, where police play a prominent role in achieving justice. The Intermediate and High Courts handle indictable crimes as well as appeals from lower courts. It is in these courts that a decision made sets a doctrine of precedent.
The court hierarchy is a major part of the criminal trial process as it allows appeals and precedents to flow easily. It attempts to ensure consistency between judicial decisions, as well as limit the discretion on most judicial verdicts. Appeals and precedents fundamentally ensure efficiency and the effectiveness of achieving justice, but despite them being an effective measure in achieving justice, there are still cheaper and more cost-efficient methods, such as YJC, and Circle Sentencing, that can fulfill the same outcome. The cornerstone of Australia’s criminal trial process is the Adversary System.
This refers to the legal procedure where two opposing sides argue a case before an independent, third party eg. Judge/Magistrate. The third party remains impartial through appropriate process, such as crossexamination, and then comes to a conclusion at the end of the trial to decide whether the offender was guilty or not. They determined this by the standard of proof, and what version of events they believed were true. However, the adversary system has generated much controversy over the years. Adopted from English Common Law, this system focuses on finding a winner, rather than revealing the truth.
Witnesses (especially victims) are often subject to unfair cross-examination, and the ability of the lawyer plays a strong role in evidence and although there is equal opportunity to present a case, and less likelihood of innocence going to jail, there is a lack of transparency both inside and outside the courtroom. Perhaps, the NSW justice system could benefit from a much preferred and alternate method, in the Inquisitorial system. Already in place in the Coroner’s court, it differs from the Adversary system as it makes use of the judge to discover facts, ask questions and use their discretion, whilst simultaneously representing society.
Lawyers play a more passive role, only asking suitable questions, and leaving the discovering of facts to the judge. It effectively reduces the negative aspects of the adversary system, nullifying the impacts of legal representation, but the reliance on judge discretion and chance of bias puts the accused’s rights secondary to the truth, and this can impact severely on the community. During a criminal trial, there are numerous legal representatives present to try and obtain justice for the community, victim or accused.
The most important professionals in the courts are those of the magistrates in the local courts, or judges in higher courts. They have the massive role of making rulings on admissibility as well as overseeing the conduct of the hearing. Yet, due to the high salary, many people criticise them for being too disconnected to society. The DPP, Police and Prosecutors all act on behalf of the state to present and argue evidence in order to obtain a guilty plea from the accused, therefore achieve justice for the victim and society.
In NSW Local Courts, this job is bestowed upon Police Prosecutors, who are specially trained officers ready to represent the community in court, but in higher courts the DPP is responsible for arguing the case. Their previous life tenure has been reduced to a ten years, under the DPP Act 1986 (NSW), was amended in 2008, and this has allowed society to trust their decisions and believe that justice will be served. Yet, one significant dispute over the years is the job of Defence Lawyers. As they are there to represent the accused, and by doing this, counter the prosecution’s evidence and cast doubt in the minds of the jury (beyond easonable doubt), they are often criticised for being to aggressive, or maintaining client confidentiality.
Despite not a lot of negativity going towards solicitors in the local courts, barristers who appear in higher courts are brandished with cruel attacks, as they are too unjust during the trial. They have referred to victims as “moaning in pleasure” (Telegraph, April 16 2008) during sexual assault cases, and this forced legal means, such as the proposal to introduce a code of behaviour, in 2008, to stop the aggressive nature of defence lawyers. h To achieve justice in the criminal trial process, everyone should have the right to a fair trial. In Australia there is a common law right to a fair trial, hence it assumed that those brought before the courts have the right to legal representation, and access to Legal Aid. Legal Aid is government funded legal representation that act independently of the government and represent people who are unable to obtain legal representation themselves.
The right to Legal Aid was established in the case Dietrich vs The Queen (1992) where the Dietrich argued that in order to have a fair trial, one must have representation. Legal Aid, or the Public Defenders Office play a crucial role in achieving justice for the economically disadvantaged, but sometimes there is debate over who it should be distributed to. Justice can seem to elude some victims in when a charge negotiation or plea bargain occurs before a trial can to take place. In a plea bargain a ‘deal’ is struck between the prosecution and the defence.
In this ‘deal’ a variety of outcomes may be reached; particular charges may be dropped to ensure a guilty plea to another or the crime may be downgraded i. e. murder to manslaughter. Although plea bargains are usually arranged to ensure the accused is punished and does not escape a guilty charge, many victims feel left out by the legal system or believe that justice has not been achieved. One case in which justice seemed to elude the victim was in DPP v. Koch. In this case Mr. Koch brutally beat his ex-partner Mrs.
May in there garage. Originally Mr. Koch was accused with attempted murder by the prosecution. However, the lack of physical evidence that put Mr. Koch at the garage caused the DPP to strike an arrangement with Koch’s defense lawyers that meant he would only be charged with aggravated assault, which carries a much lighter sentence, then attempted murder. Mr. May however believed that she should have had her evidence heard by a jury as she believed her emotional testimony would have helped secure a guilty verdict of attempted murder.
Her opinion however was not considered by the DPP and instead the prosecution settled on the lesser plea of aggravated assault. Although charge negotiation lacks transparency, it also saves the state and therefore tax payers money; as it is quicker and cheaper then a long trial. Plea Bargains also achieve justice for the offender, as they can feel satisfied with their sentence, when they carry out an early guilty plea. The assumption of innocence until proven guilty is a significant means of attaining justice in our legal system. The burden of proof in our system rests with the prosecution.
It is the prosecutions job to prove that defendant is guilty ‘beyond reasonable doubt’; meaning the jury must be 100% sure that the defendant is guilty before making a guilty connection. This burden of proof is so high as a criminal charge is a very serious matter; usually including a prison term, social stigma and the removal from family and support networks. This high burden of proof is also in place due to the unlimited resources at the states (DPP or Crown’s) disposal. However many well funded defendants have easily matched the state in their resources available at trial.
This leads to many defendants who are guilty of there crime getting off as well as a prolonged trial costing the public large amounts of money. Evidence and its application in the court is one of the most important factors in our legal system in place to ensure justice. Evidence is material or information that is used in court to prove facts. The way evidence can be used in our court system is outlined in the Evidence Act 1995 (NSW). This legislation also outlines what evidence is ‘admissible’ (permitted in court) and inadmissible (not permitted in court).
Evidence is an extremely important part of our legal system and in many cases justice can hang on an individual piece of evidence. The jury system is another apparatus in place in our legal system to ensure justice takes place. Juries are in place to ensure that individuals accused of crime can come before and be judged before there peers. The Jury Act 1977 (NSW) is the legislation outlines the function of the jury and its purpose. Despite the juries important role in our legal system it has a number practical limitations such as complex scientific evidence, which can confuse (SMH – March 29, 2010).
Another negative of the jury system is the potential for a hung jury, which was recently combatted via the introduction of the Jury Amendment (Verdicts) Act 2006 (NSW) which introduced the system of majority verdicts (11:1). Juries also cost a substantial amount of money to tax players; in NSW juries cost taxpayers $7. 8 Million. The jury however is once of the key concepts of justice that our legal system operates on and as such many argue it should remain apart of our system. A crucial part of maintaining justice in our court system is the opportunity of the defendant to defend himself in court with an appropriate defence.
These defenses are split into to categories; partial and complete. Although these defenses are often legitimate claims the recent case of R v. Singh (2012) SC. demonstrates that abuse of justice which can occur in criminal defenses. In this case an Indian women was brutally murdered with a box cutter; sliced 8 times across the throat, after threatening to leave her abusive husband. The husband claimed the partial defence of provocation and escaped a charge of murder having his crime downgraded to manslaughter and receiving only 7 years in prison as a consequence for his crime.
The criminal trial itself is full of contradictions. In many ways justice can be forsaken for the victims of crime to ensure the smooth systematic running of the courts. Occurrences such as charge negotiation or bad juries usually hinder the process of justice and many people can end up feeling isolated and bitter due to the court system. It is important to however remember that our legal system has ‘the hinders’ of funding and time which ultimately effect the systems running.
