Prepare court documentation for criminal proceedings

1. Prepare court documentation for criminal proceedings JUS404A

2. Legislation • Crimes Act 1900 • Crimes (Appeal and Review) Act 2001 • Summary Offences Act 1988 • Law Enforcement (Powers and Responsibilities) Act 2002 • Criminal Procedure Act 1986 • Young Offenders Act 1997 • Bail Act 1978 • Crimes (Sentencing Procedure) Act 1999 • Drug Court Act 1998

3. How to study Law • Do not try and commit it all to memory • Understand where to find the relevant information • Access electronic information whenever possible

4. The Criminal Justice System • Investigative – police • Adjudicative – courts • Correctional – custodial/community

5. WHAT IS LAW? • Rules • Rights & responsibilities • Reflection of society

6. External Influences • Internal practices and procedures • External integration • Legislation • Common law (case law) • Judicial practice and procedure • Information sharing

7. SOURCES OF LAW • Custom • Common Law – court decisions • Statute Law – parliament • Delegated legislation

8. Common Law • Commonlawisalsoknownascaselawandarisesfromjudicialdecisions • Precedent(staredecisis)isafeatureofcommonlawsystems • Precedentmeansthatcourtsmustfollowdecisionsofhighercourtswithinthesamehierarchy • Precedentisdependantuponcaselawjudgements

9. LEGISLATION • The formal legal rules made by Parliament • It is the dominant source of law • A necessary requirement of contemporary society • Proactive

10. THE LEGISLATIVE PROCESS • A set procedure is followed: • Commencing in the House of Representatives – • 1st Reading – proposed Bill presented • 2nd Reading – speech & debate • Committee Stage • 3rd Reading – if approved moves to the Senate & same procedure followed • Royal Assent

11. Common Law and Legislation • Commonlawprinciplessubordinatetolegislation • Commonlawneedsdisputesbeforethecourtstodevelopprinciples–(DonoghuevStevenson) • Legislationplaysareformingandmodernisinginfluence • Legislationisthevoiceofdemocracy–judgesnotaccountable

12. Delegated Legislation • The power to make legislation remains with the Federal Parliament • This power can be delegated to the States • It is primarily in relation to matters that are insignificant to the Federal Government but of importance to the State Government

13. Public Law Criminal Law Administrative Law Constitutional Law Private Law Contract Law Trust Law Family Law Succession Tort Law Company Law Legal Categories

14. LEGAL PERSONNEL • Judge • Associate • Jury • Solicitor • Barrister • Depositions Clerk

15. Criminal Prosecution commences proceedings Accused/defendant answers the charge Primarily freedom at risk Civil Plaintiff commences proceedings Respondent/defendant answers the claim Primarily money at risk THE ADVERSARIAL PROCESS

16. Civil Criminal On the plaintiff on the balance of probabilities On the prosecution beyond a reasonable doubt STANDARD OF PROOF

17. How to read case law • Case law is court judgments • Transcript of the proceedings of the matter • Written decision of the presiding decision maker • Written order of the court

18. Case title • The prosecuting/complaining party name is first • The defending/accused/responding party name is second • ‘v’ for versus is in between and is pronounced as ‘and’ • Cases starting with ‘R’ rather than a party name indicate criminal prosecution by the Crown (currently Regina)

19. Legislation • Parts • Chapters • Sections • ASectionisthemainbuildingblockofanact.Sectionsthemselvesarebrokendownintosmallerparts: • SubSection • Paragraph • SubParagraph

20. 66Requirementsoffineoptionorders (1)Afineoptionordermustcontainrequirementsthattheoffender— (a)mustreporttoanauthorisedcorrectiveservicesofficeratthe place,andwithinthetime,statedintheorder;and (b)mustperforminasatisfactorywaycommunityservicedirected byanauthorisedcorrectiveservicesofficer— (i)forthenumberofhoursstatedintheorder;and (ii)atthetimesdirectedbytheofficer;and Section and title Paragraph Sub-section Sub-paragraph

21. Locating Legislation • www.legislation.nsw.gov.au • On introduction page select Home • Then select Search • Enter exact or some words • Scroll through the pages until you find the required Act and select • Instructions are in your Unit Guide

22. Alternative location • www.austlii.edu.au • National website, includes all State and Federal Legislation • Select New South Wales under Cases and Legislation on the left hand side • Select New South Wales Consolidated Acts under New South Wales Legislation • Select ‘S’ from the alphabet listing • Locate and select the Summary Offences Act 1988 • NOT as user friendly

23. Navigating legislation • Once you have located the legislation, download it in the PDF format if available, type ‘Ctrl F’ • Utilise the find function to locate relevant sections by entering specific offence titles • Utilise the index on the left hand side to scroll through chapters and sections according to chapter and section numbers.

24. Finding offences • What do you do to locate the penalty for murder in the Crimes Act 1900? • Type Ctrl F • Enter ‘murder’ into the find box • Select ‘next’ or ‘previous’ on the find box to locate different uses of the word ‘murder’ in the legislation • Locate the relevant section that specifies the penalty • Answer the question with the set penalty and the section number to form the habit of locating and learning section numbers.

25. More offences • What do you do to find the elements of the offence of stealing a car? • Type Ctrl F and enter ‘steal’ or ‘steal car’ into the find box • What do you do if the find box does not locate the offence? • Enter an alternative word, like ‘motor vehicle’

26. Types of offences • Indictable offences • Summary offences • Regulatory offences • Simple offences

27. DEFENCES

28. Defences • Explanation OR excuse? • Can you excuse any behaviour that breaks the law? • Can you explain why you behaved in a manner that broke the law? • Will society accept your explanation?

29. Presumptions • Presumption of law is something that is accepted as a fact in the absence of the evidence. • Rebuttable presumption is something that is accepted as a fact until evidence proves otherwise • Irrebuttable presumption is something that is accepted as a fact regardless of any evidence that proves otherwise

30. EVIDENCE

31. Evidence • Evidence is provided to prove a fact • It can support a contested fact • It can disprove an accepted fact

32. Rules of evidence • Hearsay – evidence must be attested to first hand and not overheard • Expert – evidence that is accepted as expert in the area and therefore the knowledge is unquestionable • Admissable – allowed in court • Inadmissable – not allowed for various reasons

33. How a criminal matter gets to court and what happens there • Police investigate matter • Arrest suspect • Charge suspect with commission of crime • Bail applied for by person charged • In summary matter or by election of accused, trial by magistrate • Indictable offence requires judge and jury • Accused asked to plead • Lawyer for prosecution presents case • Lawyer for accused presents case • Judge or jury makes finding of fact • Judge applies law • Judge makes order