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CHINESE PROSECUTORS SHORT COURSE
AIJA COURSE OUTLINE25-26 November, 2002
Course topics
1. The Australian judicial system and the training of judges and prosecutors
2. The role of prosecutors and criminal law procedure
The Australian judicial system and the training of judges and prosecutors
1. Overview of Australian legal system:– State and federal jurisdictions– Sources of law– Court systems– Role of judges and magistrates– Judicial independence & judicial ethics
TOPIC 1: THE AUSTRALIAN JUDICIAL SYSTEM AND THE TRAINING OF JUDGES AND PROSECUTORS
The Australian judicial system and the training of judges and prosecutors . . .
2. The training of judges and prosecutors:– Professional training and employment– Professional regulation– Professional ethics– Continuing professional development– Anti-corruption task forces
The Role of Prosecutors and Criminal Law Procedure
1. The Role of Prosecutors:– Overview – investigation and prosecution of offences
in Australian courts– Roles of police and prosecutors– Independence of prosecutors and review of
prosecutorial function
The Role of Prosecutors and Criminal Law Procedure. . .
2. Criminal Law Procedure:– Adversarial system– Presumption of innocence– Standard of proof– The stages of a criminal trial– Summary and indictable offences– Jury trials– Use of technology in the prosecution process
The Australian judicial system and the training of judges and prosecutors
Australian Judicial System
Overview of Australian Legal System
Western Australia
Northern Territory Queensland
New South Wales
Victoria
Australian Capital Territory
Tasmania
South Australia
State and Federal jurisdictions
Each State and Territory has its own:
criminal law; system of courts; investigation systems for offences; prosecution system; and system of regulating the practice of law
Plus - Commonwealth:
criminal law; system of courts; investigation systems for offences; and prosecution system.
Sources of Law
State and Commonwealth Statute Law
– Criminal codes
‘Common law’ – developed by the courts International law – treaty obligations e.g.
human rights
Australia’s Court system
State and Territory minor courts
(called Local Courts, Magistrates Courts or Courts of Summary
Jurisdiction)
State Intermediate (County or District Courts)
States and TerritoriesSupreme Courts
Full Court / Court of Appeal State and NT Supreme
Courts
Federal TribunalsFor example, Copyright Tribunal, Competition Tribunal,
Migration Review Tribunal, Refugee Review Tribunal
Federal Magistrates Court
Federal Court of Australia
Family Court of Australia
Full CourtFederal Court of Australia
Appeal DivisionFamily Court of
Australia
On appeal / review On appeal / review
HIGH COURT OF AUSTRALIA
STATE/TERRRITORY COURTS COMMONWEALTH COURTS
Appeals to the High Court by Special Leave only
Role of judges and magistrates
No involvement in investigation;Magistrates – less serious cases in
local/magistrates’ courts;Judges – more serious cases – District
and Supreme Courts.
Role of Judges and Magistrates
Judges– Bail– Pre-trial hearing– Pleas of guilty– Trial (with jury)
Magistrates– Bail– Pre-trial hearing– Committal – Pleas of guilty– Trial
Judicial Independence
“Rather than independence for judges, its essence is the independence of a justice system, and hence of the judges who administer it, from sources of power and influence which exist within their community and which, without that independence, might affect the just and impartial working of the system.”
Sir Ninian Stephen, former High Court judge and Governor-General
Judicial Ethics
Corruption, bribery;Conflict of interest;Bias.
AIJA/Council of Chief Justices
Guide to Judicial Conduct at
http://www.aija.org.au/online/GuidetoJudicialConduct.pdf
2. The training of judges and prosecutors
Professional training and employment
Prosecutors – training and employment
Qualified legal practitionerContinuing education requirements In-house trainingUse of barristersOther legal experience/employment
Judges – appointment and training
Appointment by governmentFrom senior ranks of legal professionNo specialist training requiredJudicial education and continuing
professional development courses are available
Judicial Qualifications
Legal Knowledge and experience– a high level of achievement and
effectiveness – Sound knowledge and understanding of
the law and rules of procedure – Court or litigation experience
Judicial Qualifications
Professional qualifications– intellectual and analytical ability;– sound judgment;– decisiveness and the ability to discharge judicial duties
promptly;– written and verbal communication skills;– authority – the ability to command respect and to promote
expeditious disposition of business while permitting cases to be presented fully and fairly;
– capacity and willingness for sustained hard work;– management skills, including case management skills
Judicial Qualifications
Personal qualities– integrity, good character and reputation;– fairness;– independence and impartiality;– maturity and sound temperament;– courtesy and humanity
Complaints against Judges
Removal from office – serious complaints
Judicial Commission of NSW – complaints procedure
Professional Regulation
Prosecutors - regulation
Prosecution Policies and Guidelines
Professional Ethics
Judicial Ethics
Guide to Judicial Conduct etc.
(see above)
Prosecution - ethics
Prosecution policies and guidelinesProfessional standards
– Solicitors– Barristers
act competently and diligently with honesty and candour with fairness and courtesy
Investigations and sanctions
Continuing Professional Development
Judges - CLE
Voluntary Courses by:
– AIJA– National Judicial College– Judicial Commission of NSW– Court Conferences
Judges - CLE
Courses on:– The law– Sentencing updates and information;– Judgment writing– Use of technology– Expert evidence– Cultural Awareness
Prosecutors - CLE
‘In-house’ – DPP Offices – trainingProfessional bodies – Law Societies
and Bar Associations
Anti-corruption task forces
Independent Commission against Corruption (‘ICAC’)
Website:
www.icac.nsw.gov.au
Independent Commission against Corruption (‘ICAC’)
Headed by independent Commissioner – reports direct to Parliament, not subject to direction by Government Minister;
Conducts– Investigations– Corruption prevention - strategies– Public education
Independent Commission against Corruption (‘ICAC’)
Powers:– To require information;– Entry, search and seizure;– To conduct public hearings;– Refer to other investigation and
prosecution agencies.
TOPIC 2: THE ROLE OF PROSECUTORS AND CRIMINAL LAW
PROCEDURE
The Role of Prosecutors
Overview – investigation and prosecution of offences in Australian courts
Roles of police and prosecutors Independence of prosecutors and
review of prosecutorial function
Investigation and prosecution of offences
Investigation and prosecution - separate functions
Investigation agencies– General
Police
– Specific Australian Crime Commission Australian Customs Service Australia Securities and Investment Commission (ASIC)
Investigation and prosecution of offences
Prosecution agencies– Police
Summary matters (less serious)
– Director of Public ProsecutionsSerious offences
– Specialist Prosecution Services Australia Securities and Investment Commission (ASIC),
Australian Taxation Office
Roles of Police and Prosecutors
Police– Investigate– Institute proceedings– Prosecute less serious crime
Prosecutors (DPP)– Prosecute more serious crime– Handle committal hearings in local courts– Handle summary prosecutions in more serious
matters
Role of the prosecutor
To assist the court to arrive at the truth – must act impartially and fairly towards the accused person
Must ensure all the evidence is available – not just that which favours the prosecution case
Director of Public Prosecutions
Independent office established by statute
Same tenure as judgeNot subject to direction by government
minister or officials.
Responsibility of Prosecutors
Screen cases to ensure they only proceed where justified by the evidence and required in the public interest – assess evidence/discontinue
prosecute offenders liaise with witnesses and victims of crime review the outcome of trials and decide whether or
not to institute an appeal institute proceedings to deprive offenders of
proceeds of crime in appropriate cases
Discretion to prosecute
No automatic prosecutionPublic interest is the dominant
consideration
NSW – Prosecution test
Does the admissible evidence available establish each element of the offence?
Is there a reasonable prospect of conviction? and
Are there any discretionary factors that dictate that the matter should not proceed in the public interest?
Decision to prosecute – discretionary factors
seriousness of offence; obscurity of the law; fair trial not possible; whether offence is of considerable public
concern; Need for public confidence law; staleness of the alleged offence; prevalence of the alleged offence and any need
for deterrence, Alternatives to prosecution;
Decision to prosecute – discretionary factors . . .
Length and expense of a trial; Likely sentence degree of culpability; mitigating or aggravating circumstances; the youth, age, maturity, intelligence, physical health, mental
health or special disability or infirmity of the alleged offender, a witness or a victim;
alleged offender's antecedents and background, including culture and language ability;
whether alleged offender is co-operative in the investigation or prosecution of others,
the attitude to a prosecution of a victim or a material witness; entitlement or liability to criminal compensation.
Independence of prosecutors and review of prosecutorial function
Independence
Safeguards the integrity of the prosecution process
Discretion must be exercised within guidelines and ethical constraints
Requirement to give reasons for decisions in some cases
No external review of prosecution decisions
Criminal Law Procedure
Adversarial system Presumption of innocence Standard of proof The stages of a criminal trial Summary and indictable offences Jury trials Use of technology in the prosecution
process
Adversarial system
Judge – Adjudicates– Does not examine or investigate
Parties – Present evidence– Make legal submissions
Presumption of InnocenceAccused person is presumed innocent until proven guilty – prosecutor has to prove guilt, the accused person does not have to prove their innocence
‘Beyond reasonable doubt’
If there is any reasonable doubt whether the accused is guilty, he or she should be ‘acquitted’ (i.e. found to be not guilty of this offence.)
High standard – to minimize risk of convicting an innocent person
The ‘Right to Remain silent’
A person is not required to answer any questions put by a police officer (except in certain limited situations;
An accused is not required to answer charges or call evidence at trial. Can ‘put the prosecution to proof’.
Duty of the prosecutor
Prosecuting counsel are ministers of justice, who ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry. Their duty is to assist the court . . . to make certain that justice is done.
Double Jeopardy
A principle of criminal law that no person should be:– Punished more than once for the
same offence; or– Tried twice for the same offence.
Categories of Offences
Summary Offences– less serious offences – punishable by lower penalties– heard by a magistrate without a jury
in the local (magistrates’) court
Plea mention – Magistrates’ Court
Police – charge offenderBail or summons
Police refer evidence to police prosecutor
Prosecutor reviews charge
Trial(Magistrate)
Intermediate (District) Court(appeal against conviction/ sentence)
Plea of Not Guilty
SUMMARY OFFENCESAppeals to the High Court by Special Leave only
Sentencing(Magistrate)
Plea of Guilty
Appeal to Supreme Court (point of law)
Categories of Offences
Indictable Offences– More serious offences– Punishable by higher penalties– Tried by judge and jury– In the Intermediate (District) Court– Some indictable offences may be tried
summarily, with the consent of the accused and the court.
Committal hearing-Magistrates’/Local Court
Police – charge offenderBail or remand
Police refer brief of evidence to DPP
Prosecutor reviews charge
District/Supreme CourtProsecutor files indicment
Trial(Judge and Jury)
Supreme Court/Court of Appeal(appeal against conviction/ sentence)
Plea of Guilty Plea of Not Guilty
INDICTABLE OFFENCESAppeals to the High Court by Special Leave only
Arraignment
Pre-trial hearing
Sentencing(Judge)
Committal hearing
In an indictable offenceHeld before a MagistrateTo determine if there is sufficient
evidence to justify the trial of the defendant.
Pre-trial hearing
Greater judicial management of trial process
To reduce delay and cost of trialsDisclosure
– By prosecution– By defence
Crimes (Criminal Trials) Act 1993 - Victoria
Prosecution Case Statement– Full details of the prosecution’s case, including
evidence and legal arguments
Defence Response– Indicate which evidence will be contested– Expert witness statements– Reply to prosecution legal arguments– Defence legal arguments
Trial procedure
Jury is empanelled and sworn Opening address by Prosecution Prosecution case
– Prosecutor calls evidence– Defence cross-examines
Opening Address by Defence Defence case
– Defence calls evidence– Prosecution cross-examines; OR
Trial procedure . . .
Defendant makes unsworn statement Prosecutor’s closing address to the jury Defendant’s closing address to the jury Judge’s summing up to the jury Jury retires to consider verdict Jury announces verdict Judge may proceed to sentence or adjourn
sentence to a later date
Trial procedure . . .
‘Voir Dire’ – legal argument about the admissibility of evidence (in the absence of the jury)
Submissions during trial – – Objections to evidence– ‘no case to answer’– Move to disqualify a juror– Adjournment
Trial by jury
Not a ‘right’, but indictable Commonwealth offences must be tried by jury
Most indictable offences in Intermediate (District) Courts and Supreme Courts are heard by a judge and jury
In some States, an accused can choose to have their case heard by a judge without a jury (for some kinds of offences)
Role of the jury
To decide whether the prosecution has proved the guilty of the accused – taking into account– The evidence called by prosecution– Any evidence called by the defence– Directions on law given by the judge
Role of the jury . . .
The jury does not– Investigate the facts– Call evidence – Ask questions of witnesses
Composition of the jury
Drawn randomly from all adult members of the community (electoral roll).
BUT - Exclusions:– Those in prison;– Lawyers, police,– those unable to understand English
Exemptions– doctors, pregnant women, illness
Composition of the jury . . .
Peremptory challenge – both prosecution and defence may object to a certain number of potential jurors, without giving any reason.
Challenge for cause – prosecution and defence may challenge any juror on the ground of bias. Rarely used. No right to extensively question jurors (like USA).
Criticisms of the Jury
Not randomly selected because of all the exemptions and challenges.
Lack knowledge to determine more complex issues - e.g. scientific, financial issues.
Advantages of the jury
Guarantee against arbitrary exercise of state power
Democratic participation in the criminal justice system
Source of community values Encourages the trial to be conducted fairly
and in a way that can be understood by the public
Reforms to the jury system
Tighter exemptionsMajority verdictsTrial by judge aloneMake evidence more easily
understood by jury
Pre-trial publicity
Jury must not be aware of, or influenced by, material not admitted as evidence in the trial – e.g. information about an accused’s prior criminal record
Law of contempt prohibits publications before trial that might prejudice the trial i.e. create a bias in the mind of the jury
Jury Deliberations
Jury deliberations – discussions in the jury room – take place only in the presence of the jurors
These discussions are regarded as confidential - jurors should not disclose what goes on the jury room
Changes to the use of juries
More offences being created which may, or must, be determined summarily – trend to less use of juries
Sentence
Sentence is passed by the judgeMust take into account submissions by
defence and prosecutionPenalty – as set out in statuteSentencing principles
Sentencing Principles
Punishment Deterrence
– Individual– General
Prospects of Rehabilitation Mitigating Factors – e.g. age, remorse, co-
operation Protection of the community
Use of technology
To collect and organise the evidence To deal with remands and bail applications To deal with pre-trial hearings To present the evidence in court
– Litigation support systems;– Computer monitors– Document cameras
To bring witnesses to court e.g. by video-link To do legal research – look up the statute law and cases To assist the jury – charts, diagrams, etc. displayed on
computer screens
Further Information
Copy of this presentation – www.aija.org.au/courses/cpc.ppt
Anne Wallace – email:[email protected]
AIJA website – www.aija.org.au
