CHINESE PROSECUTORS SHORT COURSE AIJA COURSE OUTLINE 25-26 November, 2002.

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:amwall@ozemail.com.au

AIJA website – www.aija.org.au