The accused
• https://www.youtube.com/watch?v=HucsdMLoDkw
(Robin Michael)
• The accused – someone charged with or on trial for a crime
• If you were accused of murder, or any summary/indictable offence,
what rights or safeguards would you want in place within the criminal
justice system to protect you, the accused?
Note: Criminal justice system – just looking at investigative component
(police) and adjudicative component (courts).
Safeguards to protect the accused
• Exercise of police powers
• Presumption of innocence
• Bail
• Preliminary proceedings
• The right to silence
• Double jeopardy
• Principles of natural justice
• Right of defendant in a trial
by judge and jury
• Disclosure by prosecution
• Right to contest the
admissibility of evidence
• Right to appeal
Natural Justice (procedural fairness)
• For society to be satisfied with the outcomes of criminal
cases, the outcomes must be fair and appropriate.
• Natural justice is a common law principle that states people
must be treated fairly.
• It involves the right to be heard by an unbiased decisionmaker.
• People need to know the nature of any allegations made
against them.
• People should be given a fair chance to put their case or
respond to allegations.
• There should be an avenue to appeal a decision that has
been made.
Natural Justice
• WordPress reading:
• Principles of Natural Justice (Australian Legal System: Hot
Topics)
Right to appeal
• A person who has been convicted by a jury, or has pleaded
guilty and been sentenced by a Supreme Court judge, has a
right of appeal to the Court of Criminal Appeal.
• The appeal must be made on one of the following grounds:
• appeal against conviction on any ground which only
involves a question of law,
• appeal against conviction on any ground which involves a
question of fact, or mixed law and fact, or some other
sufficient ground of appeal,
• appeal against the sentence passed
Court hierarchy in Tasmania (Criminal)
Magistrates Court
Supreme Court
Court of Criminal Appeal
High Court
Right to appeal
• Court hierarchy handout
• Court system (WordPress)
• Textbook reading (Blue edition):
• Page 298-299
• Page 329 (The definition of traffic lights – a point of law)
• Page 338 – 341 (Federal courts)
• Textbook reading (Red edition)
• Page 285-287
• 311 (The definition of traffic lights – a point of law)
• 319 (Federal courts)
Right to appeal
• WordPress reading (Right to appeal notes) - contains:
• Appeals in the Supreme Court
• Tasmanian Attorney-General announces plan to change
criminal appeals law
• Legal revamp may give Tasmania’s criminals more right to
appeal convictions
• Answer the following questions:
• Q1: What is the current avenue available for a convicted person
who has exhausted all appeal rights?
• Q2: An additional grounds for appeal is being considered by the
Tasmanian Government. Explain what it is.
Right to appeal
Research the following cases:
• Tim Ellis case
• Susan Neill-Fraser case
Investigate both cases and summarise their appeals including:
• Facts of the case
• On what grounds did they appealed (explain)
• Which court/s they appealed to
• What was the decision/s
The Right to Silence
• The right to silence is the right of a suspect to say
nothing in the face of police questioning and is
justified as a protection from self-incrimination.
• Read page 440 “Right to silence” (Blue edition)
• Read page 414 “Right to remain silent” (Red edition)
• WordPress readings:
• Macquarie Law Journal
• Right to silence (Tasmanian Law Handbook & article)
• Anything you don’t say may be used against you
The Right to Silence
• Answer the following questions:
Macquarie Law Journal questions
• 1. Describe the two tiers of the right to silence
• 2. Explain how the right to silence leaves the burden of
proof entirely with the prosecution.
• 3. In what situations does the right to silence not apply?
• 4. What reasons would an accused want to remain silent
during the pre-trial setting and the trial?
The Right to Silence
• Answer the following questions:
“Anything you don’t say may be used against you” article
1. What changes have been made to the NSW right to silence
legislation? How will this effect the accused?
Presumption of Innocence
The principle that a person is considered innocent until proven
guilty:
• A legal right of the accused
• Burden of proof is on the prosecution to prove ‘beyond
reasonable doubt’ that the accused is guilty. This burden is
reversed if the accused uses a defence like insanity, selfdefence etc.
• The standard of proof is beyond reasonable doubt.
• The presumption of innocence is contained in article 14(2)
of the International Covenant on Civil and Political Rights
(ICCPR).
Presumption of Innocence
• WordPress reading:
• Australian Criminal Justice (Findlay, Odgers, Yeo, 1998)
• Q1: What does the reading say about the burden of proof on the
defendant? How does this effect the presumption of innocence.
• WordPress reading:
• Prove your innocence article: Abbott set to reverse onus of proof
for home grown terrorists (Foreign Fighters Bill).
• Q2: Explain how and why the new terrorism legislation are
reversing the burden of proof.
• Presumption of innocence (Attorney-General’s Department)
• Q3: According to the UN Human Rights Committee, what is the
scope of the right to the presumption of innocence?
• Q4: What is the reverse onus provision?
Exercise of police powers
• Police powers – legislation handout
• What power do the police have to arrest, detain and charge suspects?
(handout)
• Safeguards to protect the accused (police procedures handout)
• Police officer guest speaker
• WordPress reading:
• Balancing the rights of the accused with police powers
Bail
• Bail is the term for the conditional release of a person until
their case is determined by the courts.
• Bail is usually granted because people should always be
treated as innocent until proven guilty.
• The main aim of giving bail is to allow an accused person to
go free until the hearing or trial, as a person is presumed
innocent until proven guilty. Granting bail also allows the
accused person time out of custody to prepare their case.
Bail
• Textbook reading 309-310, 442-449 (Blue edition)
• Textbook reading 416-421 (Red edition)
• Answer the following questions:
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Who can grant bail?
In what circumstances can bail be refused?
If bail is refused, what can the accused do?
How does bail help to uphold the presumption of innocence?
What is surety?
What is the relevant Bail Act for Tasmania?
What is remand?
What is the purpose of remand?
How does this contradict the presumption of innocence?
Bail
WordPress reading:
• Strengths and weaknesses of bail and remand
• Q1: Explain 3 strengths of bail and remand
• Q2: Explain 3 weaknesses of bail and remand
Bail
• Read the Bail Articles on the WordPress site and answer the following
questions:
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What are bail conditions and why are they imposed?
What were the bail conditions for Peter Cundall and Bridget Gatenby?
What happens if a person breaches their bail conditions?
As the accused, if you disagree with the bail conditions, what can you do?
Right of defendant in a trial by judge and jury
• 1. Right to disclosure (indictable offence): prosecution must
give copies of written statements of all evidence to be used
against the defendant at trial.
• 2. Right to disclosure (summary offence): defendant may
apply for and receive relevant police documents.
• 3. Prosecution has a duty not to proceed if they believe there
is no substantial prospect of conviction.
Disclosure by prosecution
• 1. It is the duty of the prosecution to call relevant witnesses
who may assist the defence case (unless the prosecutor
believes them not to be truthful).
• 2. It is the duty of the prosecution to advise the defence of
anything known that may conceivably assist the accused.
Right to contest admissibility of evidence
• 1. Defendant can contest the admissibility of evidence
against them on the grounds that the evidence was
improperly or illegally obtained (Evidence Act 2001).
• 2. Criminal Law (Detention and Interrogation) Act 1995
regulates police conduct, interviews, interrogation and
charging process.
Evidence
• Evidence is concerned with the proving of facts.
• Evidence can be:
• Oral evidence (answers to questions from the barristers)
• Sworn statements (affidavit)
• Objects such as murder weapon, stolen goods, photos
• Audio or audio-visual material
• Set of circumstances or facts indicating that a certain event has
happened
Evidence
• Protection of the accused:
• Parties are treated fairly
• Jury is not distracted by irrelevant material
• Unreliable or illegally obtained is not heard by the court
• Evidence is not unduly prejudicial to the accused (ie; evidence of
bad character)
• Court hears evidence only about the case before the court, not
prior convictions of the accused (although propensity evidence is
allowed)
Evidence
• Textbook reading (blue edition)
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Page 392 – 395
Page 397 - 398 R v Farquharson case
Page 399 Strengths to the rules of evidence
Page 401 – 404, 406 - 407 Weaknesses to the rules of evidence
• Textbook reading (red edition)
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Page 369-372
Page 374 R v Farquharson case
Page 376 Strengths to the rules of evidence
Page 378-379, 382-384 Weaknesses to the rules of evidence
Evidence
• Answer the following questions:
• What is inadmissible evidence?
• Explain each type of inadmissible evidence.
• Learning activities (Page 405 – 407) Blue edition
• Learning activities (Page 381-382) Red edition
• 7.5 Q7 b
• 7.5 Q8a, b
• 7.5 Q9a, b
Preliminary proceeding
• Also known as a Committal hearing or a Pre-Trial procedure
• A preliminary proceeding involves cases where a person has been
charged with an indictable offence. Before the case can go to trial
before a judge and jury, the details must be presented to a magistrate
who has to decide whether or not there is a prima facie (reasonable)
case.
• If there is no prima facie case, the magistrate can order the charges to
be dropped and the person released.
• If, however, there is enough evidence to suggest that a prima facie
case does exist, the case will go to trial.
Preliminary proceeding
• Read Preliminary Proceedings (Law Handbook) on WordPress site
• Read page 451 – 457, 434 - 435 textbook (blue edition)
• Read page 409-410, 415, 423-429 textbook (red edition)
Preliminary proceeding
• Answer the following questions:
• 1. Explain the terminology prima facie
• 2. Explain the aim/purpose of preliminary proceeding.
• 3. What is a direct indictment and what are the two situations
where direct indictment occur?
• 4. What is the role of the Director of Public Prosecutions?
• 5. Who is the present Director of Public Prosecutions in Tasmania?
• 6. Explain discontinuing a prosecution.
• 7. What are depositions?
• 8. How do preliminary proceedings help to bring about a fair and
unbiased hearing and how do they protect the accused?
Double Jeopardy
• Double jeopardy rule – prevents a person who has been acquitted or
convicted of an offence from being tried again for an offence relating
to the same conduct or event.
• This means that if a defendant is charged, for example, with murder,
and acquitted, that person cannot be charged again with the same
murder, no matter what new evidence becomes available.
Double Jeopardy
• In Tasmania, this rule was changed.
• In the Criminal Code Act 1924, it states that The Court may order an
acquitted person to be retried for a very serious crime if satisfied that
there appears to be fresh and compelling evidence against the
acquitted person in relation to the crime; and in all the circumstances
it is in the interests of justice for the order to be made.
• The court may order a person to be retried for a very serious crime
under this section even if the person had been charged with and
acquitted of a lesser crime.
• Read Double Jeopardy reading on WordPress site.