The Courts
Hierarchy & Jurisdiction
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The court hierarchy is a necessary part of the Doctrine of Precedent
(lawmaking through courts)
Because the process of law-making through courts
depends on a decision being made in a higher court
which is binding on lower courts.
This enables individuals and lawyers to predict the likely outcome
of a case.
Judges and magistrates can be guided by the wisdom
of the more experienced judges in the higher courts.
There are state courts and federal courts.
The state courts deal with issues which arise under state law.
The federal courts deal with disputes which arise under federal law.
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Reasons for Court Hierarchy
1. Specialisation:
Affords Judges, and Magistrates the chance to gain greater skill and expertise in
the particular matters they hear and promotes consistency in decision making.
2. Administrative Convenience:
Efficient use of resources and personnel.
3. Appeals:
The hierarchy allows decisions of a lower court to be reviewed on appeal, if
necessary by a higher court/authority.
4. Precedent:
The use of past decisions to determine current cases relies heavily on a
hierarchical structure. Usually only higher courts set precedent, to be followed by
lower courts.
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Court Hierarchy ~ Criminal Jurisdiction
‘Jurisdiction’ refers to the extent of the power of the various courts.
Most courts have the jurisdiction to hear both civil and criminal cases.
A civil case relates to disputes between individuals,
in which one person is claiming that his or her rights have been infringed.
A criminal case relates to an offence against society,
such as stealing, and is between the Crown and an individual.
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All criminal cases come before the Magistrates Court in their first instance.
It is the ‘lowest’ Court in the hierarchy but will hear over 90% of all cases before Victorian Courts
The Magistrates Court hears and determines ALL Summary Offences
and Indictable Offences heard summarily.
It also conducts committal proceedings for other indictable offences, that may be heard
at a later date in the County Court or the Supreme Court.
A committal hearing is a hearing to determine whether the evidence held by the police is
of sufficient weight to support a conviction.
If the magistrate decides that there is sufficient evidence against the accused, the case proceeds to trial. If
not, the accused is released until such time as the police find additional evidence.
Magistrates Court
(State)
It has NO Appellate Jurisdiction
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Summary Offences:
Generally offences of a less serious nature, heard and determined by
a Magistrate. There is no right to a Jury for a Summary Offence.
(e.g. Traffic / DUI / Public Order / Minor Drug Offences)
Indictable Offences heard summarily:
More serious offences, where the accused is entitled to have the charge
heard by a Judge and Jury in a higher Court.
Some Indictable Offences are triable summarily, meaning they can be
heard by the Magistrate in the same way as a Summary Offence.
Magistrates can only hear criminal cases in this way with the consent
of the accused.
Indictable Offences that can be dealt with in this way incl:
Theft < $25,000 / Indecent Assault / Theft of a Motor Vehicle
Magistrates Court
(State)
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Magistrates Court – Specialist Courts
Koori Court
The Koori Court, a division of the Magistrates’ Court,
is available in Shepparton, Warrnambool and Broadmeadows and is only open to
Aboriginal defendants who plead guilty.
The court hears criminal cases (within the jurisdiction of the
Magistrates’ Court) except those involving sexual offences, domestic violence or a
breach of an intervention order.
The court is less formal than the Magistrates’ Court, and is conducted in a “round table”
setting. The Defendant may have the support of a lawyer and a family member.
The magistrate can take advice from Aboriginal elders on cultural issues and an
appropriate sentence.
However, the magistrate is the ultimate decision-maker and uses the same
sentencing options as available in the Magistrates’ Court.
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Magistrates Court – Specialist Courts
Drug Court
The Drug Court, deals with offenders who have a drug problem. (Well Duh!)
A magistrate deals with each case with the assistance of a case
manager, community corrections officer, special police prosecutor and defence
lawyer. The court deals with offenders who plead guilty to a crime committed under
the influence of drugs or to support a drug habit.
The crime must not involve a sexual offence or an assault causing bodily harm.
The offence must also be within the jurisdiction of the Magistrates’ Court
and punishable by imprisonment.
The Drug Court has the power to suspend a term of imprisonment
in favour of a 2 year maximum drug treatment order (DTO).
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Magistrates Court – Specialist Courts
Family Violence Court
The Family Violence Court is a special division of the Magistrates’ Court
Operating in Heidelberg and Ballarat.
The court uses specialist magistrates, registrars and
trained support staff to provide an integrated support service
for family violence victims.
The court allows witnesses to give evidence by closed-circuit television or
with a person beside them as support. The court can also order a person to leave
the court while a witness gives evidence.
Children can only attend proceedings at the court’s discretion.
The court hears all family violence matters within the jurisdiction of the
Magistrates’ Court.
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Magistrates Court – Specialist Courts
Neighbourhood Justice Centre Court
A Neighbourhood Justice Centre (NJC) Court has been established to hear cases
arising in the inner city area of Yarra.
It is a multi-jurisdictional court that works in partnership with the local community to
resolve legal issues and to provide support services.
It draws on the work of volunteers and mediators from the local area.
Community representatives helped to select a magistrate who not only
presides over the court but also meets regularly with the community to keep
abreast of local safety concerns or legal issues.
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Magistrates Court – Specialist Courts
Neighbourhood Justice Centre Court
The NJC Court is a one-stop court providing a range of services.
Its trained staff can assist people who need
drug, alcohol, mental health, housing, employment, financial, legal and interpreter
services. The NJC Court has the combined jurisdictions of the criminal and
civil divisions of the Magistrates’ Court, the Family Violence Court, the criminal
division of the Children’s Court and the Residential Tenancies, Civil Claims and
Guardianship lists of the Victorian Civil and Administrative Tribunal (VCAT).
The NJC Court can also help victims of crime claim compensation from the Victims of
Crime Assistance Tribunal (VOCAT).
The NJC Court does not deal with committal
hearings or serious sexual offences.
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Magistrates Court – Specialist Courts
Specialist lists
The Magistrates’ Court has established specialist lists to streamline processes
and to maximise the expertise of court personnel or support staff.
The specialist lists are generally less formal and
more flexible than traditional courts and are
designed to make participants feel more comfortable.
The Sexual Offences List
deals sensitively and fairly with victims of sexual offences and
reduces delays to ensure the matter is dealt with quickly.
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Learning Activity 1
(Page 128)
 Copy and complete Learning Activity 1 into work
books.
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The Coroner (a magistrate), has the power to investigate reportable deaths
and fires (2003 Bushfires).
A “reportable death” includes;
• The sudden death of a person.
• Homicide is suspected,
• The person was in care (Aged Care / Ward / Prisoner)
• The identity of the decedent is unknown,
• Death occurred under prescribed circumstances (Anaesthetic is one),
• The Attorney-General directs an inquiry be made,
• The State Coroner directs an inquiry be made.
The Coroner can also advise on ways to avoid such deaths in the future,
how fires can be avoided in the future, and inform the community of such
findings. It has NO Appellate Jurisdiction
Coroners Court
(State)
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Magistrates Court
(State)
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The Children’s Court has the power to hear most cases involving children
charged with criminal offences. It may also hear cases of young people
under 17 considered in need of Care and Protection.
The Court can also hear cases dealing with “Irreconcilable Differences”
between child and parent, likely to result in disruption to the young persons
care.
A child is identified as anyone;
• Under the age of 18 at the time of an offence, and
• Under the age of 19 at the time the charge is heard.
It has No Appellate Jurisdiction
Coroners Court
(State)
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Magistrates Court
(State)
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Children’s Court
(State)
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The County Court has both “Original” and “Appellate” jurisdiction. This simply means
that it can hear matters that have not been to Court before, as well as those matters
previously dealt with in the Magistrates Court.
County Court
(State)
Coroners Court
(State)
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Magistrates Court
(State)
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Children’s Court
(State)
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Criminal Jurisdiction: All criminal offences except the most serious such as Murder /
Treason or Attempted Murder. It will in practice deal with the majority of serious
criminal cases. In cases where the accused pleads ‘Not Guilty’ the case is heard by a
Judge and a Jury of 12.
Appeals: The County Court will hear appeals from the Director of Public Prosecutions
against the leniency of a sentence given, as well as appeals against conviction or sentence
handed down in the Magistrates Court if it is a criminal matter.
County Court
(State)
Coroners Court
(State)
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Magistrates Court
(State)
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Children’s Court
(State)
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Criminal:
The Court will deal with the
most serious criminal cases
such as murder and treason.
The highest Court in Victoria, the
Supreme Court is divided into two
divisions;
Criminal & Court of Appeal.
Supreme Court of Victoria
(State)
A Judge and a Jury of 12 will
hear cases where the
accused pleads “Not Guilty”.
It can also hear matters of
public significance.
Coroners Court
(State)
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County Court
(State)
Magistrates Court
(State)
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The highest Court in
Victoria, the Supreme Court
is divided into two
divisions; Criminal &
Court of Appeal:
The Court has the power,
for both civil and criminal
cases, to hear and
determine appeals from the
County Court (1 Judge), and
the Trial division of the
Supreme Court (3-5
Justices)
Appeals dealing with a point
of law from the Magistrates
Court will be heard by a
single Judge.
Children’s Court
(State)
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Created under the
Constitution, the High
Court has the power to
hear cases throughout
Australia.
It has the jurisdiction to
act as;
• Final Court of Appeal
from State Supreme
Courts and Federal
Courts.
Coroners Court
(State)
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High Court of Australia
(Federal)
Supreme Court of Victoria
(State)
County Court
(State)
Magistrates Court
(State)
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It has the jurisdiction to
act as;
• Interpreter of the
Constitution.
This includes
determining the
meaning of words, the
limits of Federal and
State Gov’t powers, as
well as determining the
validity of Federal and
State laws.
Children’s Court
(State)
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Original and Appellate Jurisdiction
The courts have original and appellate jurisdiction.
When a court is hearing a dispute for the first time it is said to be
operating in its original jurisdiction (area of power).
When a court is hearing an appeal it is said to be operating in
its appellate jurisdiction.
An appeal allows an individual to take the matter to a
higher court to review the original decision.
If it is thought necessary, the appellate
court (the court hearing the appeal) can reverse the original decision.
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High Court of Australia
(Federal)
Supreme Court of Victoria
(State)
County Court
(State)
Coroners Court
(State)
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Magistrates Court
(State)
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Children's Court
(State)
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The Courtroom
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The Criminal Trial
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County & Supreme Courts
The Criminal Trial
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Judge / Justice
Referred to as “Your Honour”.
Normally wears a wig and gown.
Their role is to ensure that the
rights of the accused, and
witnesses are protected.
They make rulings on points of law
pertinent to the case
The Criminal Trial
In a Criminal case,
It is the Judge who decides on the
ultimate sanction after weighing
the evidence.
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Judge’s Associate
A personal assistant and research
officer.
Chosen and appointed by the
Judge.
Usually qualified lawyers,
but this is not necessary.
They announce the
Charges.
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The Criminal Trial
Tipstaff
Maintains order in the court.
Calls witnesses and attends to the
jury.
Supreme Court they wear a formal
grey coat, County wear green.
The Criminal Trial
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Public Seating
The Criminal Trial
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Crown Prosecutor
Barristers present in open court on
behalf of their client.
Crown Prosecutors present the
case against the accused on
Behalf of the state.
The Criminal Trial
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Defence Barrister
The Criminal Trial
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Instructing Solicitors
Members of the
Prosecution/Defence team.
They provide advice/info to the
Barristers, as it is probably they
who have done the majority of
preparation.
The Criminal Trial
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Witness
One with knowledge of the event,
specialist or expert knowledge that
may assist.
They will be questioned by both
sides.
Evidence-In-Chief
Cross-Examination
Re-Examination
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The Criminal Trial
Jury
12 persons selected at random
from the electoral roll.
12 for Criminal trials, although
15 can be selected for
longer
The Criminal Trial
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Procedures for
Criminal Procedures
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The Hearing:
A hearing is a judicial examination and determination of a case, reaching a
decision in a court of summary jurisdiction (that is, the Magistrates’ Court).
The hearing does not itself determine guilt, rather than the fitness of the
accused to face trial, and the suitability of the charges, or jus veritas of the
charges against the accused. (i.e. Is there a prima facie case)
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Mention hearing
A person who has been charged with a summary offence or an indictable offence
that can be heard summarily will be brought before the Magistrates’ Court for a
mention hearing.
The defendant can choose to enter no plea or can indicate how he or she will plead,
guilty or not guilty.
If the defendant is pleading guilty, the matter may be dealt with immediately, or adjourned
until later for a plea of guilty hearing, depending on the number of witnesses to be called
and the time it is likely to take.
If the defendant is pleading not guilty, or enters no plea, the case is postponed to a full
contested hearing date.
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The Hearing:
If a defendant indicates prior to the mention day that he or she intends to
plead not guilty the matter goes straight to a contest mention hearing.
The parties are called together and asked to discuss issues relevant to the case and to
Inform the court of the number of witnesses to be called.
The prosecution will indicate the strength of their case against the defendant.
The defendant may at this stage decide to change his/her mind and enter a plea of
guilty.
Under the Sentencing Act, sentences are discounted if a person pleads guilty. If the
defendant continues to plead not guilty the matter is sent to a full contested hearing.
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The Hearing:
Uncontested hearings in the Magistrates’ Court
In most cases the defendant pleads guilty.
If this is the case, the main witness for the prosecution may outline the evidence against
the defendant.
Character witnesses may be called on behalf of the defendant and the magistrate
decides on a sentence.
In some cases the parties may agree to have the case dealt with through a diversion
program.
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The Hearing:
Contested hearings in the Magistrates’ Court
Cases which are brought before the Magistrates’ Court are known as full contested
hearings. These occur when the defendant pleads not guilty.
• the case is called and appearances are entered — The case begins with
the ‘calling-on’ of the case when the defendant’s name is called and the prosecutor
announces that s/he appears on behalf of the informant. The defendant’s legal
representative announces that s/he appears on behalf of the defendant.
• the charges are read and a plea is entered — The offences with which
the defendant has been charged are read out from the charge sheet. The
defendant is asked, ‘How do you plead, guilty or not guilty?’. The defendant’s
response is entered in the court records.
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The Hearing:
Contested hearings in the Magistrates’ Court
• all witnesses are asked to leave the court — The defendant remains, and members
of the public, who are not participating in the hearing, can stay.
• the prosecution calls its witnesses — Each witness is sworn in, this involves the
witness swearing an oath, or making an affirmation if the witness does not hold religious
beliefs,

being examined-in-chief (by the prosecutor, to adduce evidence ),
 cross-examined (by the defendant’s solicitor) and
 re-examined (by the prosecutor).
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The Hearing:
No case to answer — After the prosecution has presented their case the
defendant can submit to the court that there is no case to answer because
the prosecution did not establish a prima facie case. If the court does not
accept the submission the defence presents their case.
The defence calls its witnesses — Each witness is sworn in, examined-in
chief (by the defendant’s solicitor), cross-examined (by the prosecutor) and
re-examined (by the defendant’s lawyer). The defendant can choose to give
sworn evidence and be cross-examined, or remain silent.
44
The Hearing:
Final addresses are made — The prosecutor and the defendant’s lawyer
address the court, making submissions on questions of law.
The magistrate states whether the case is proven (decides whether the
defendant is guilty or not guilty) — If not guilty the defendant is free to go
(unless s/he is in custody for another offence). If the defendant is found guilty,
sentencing follows.
The defendant’s record is disclosed — The defendant stands while any
prior convictions are read out.
45
The Hearing:
A plea in mitigation of sentence is made — The defendant’s lawyer will
make a plea as to the appropriate sentence. Sometimes witnesses are
called during pre-sentencing to give evidence of the good character of the
defendant. Character references may also be submitted to the court.
The magistrate sentences the defendant — The magistrate announces
the penalty, and if appropriate makes other orders such as restitution to a
victim (paying the cost of repairing damage caused by the defendant).
46
The Trial:
All criminal cases to be heard in the County Court and Supreme Court are
known as trials.
There are a number of pre-trial procedures, such as a committal hearing, which
take place before a case goes to trial.
47
The Trial:
Criminal procedures in the County Court and Supreme Court are known as
trials.
Before a matter goes to trial in the County Court or Supreme Court, a committal
proceeding has usually taken place and the Office of Public Prosecutions
(OPP) has issued a presentment.
An accused person can request that the director of public prosecution (DPP)
omit the committal proceeding, but this is unusual.
If the accused is pleading not guilty in the County Court or Supreme Court
the procedure is as follows.
48
The Trial:
The case is called and appearances are entered — The prosecutor
(barrister acting on behalf of the OPP) announces that s/he appears on
behalf of the Crown. The defence counsel (accused’s barrister) announces
that s/he appears on behalf of the accused.
The accused is arraigned (arraignment) — The name of the accused “called
out” and the charges in the presentment are read out. The accused is asked to plead
guilty or not guilty. If the accused pleads not guilty the trial proceeds. If the accused
pleads guilty, the prosecution presents a summary of the evidence, prior convictions are
read out and a sentence is decided.
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The Trial:
A jury is empanelled — The jury is chosen from a pool of jurors. In criminal cases
there are 12 jurors, although up to 15 jurors may be empanelled ‘for any reason that
appears to the court to be good and sufficient’. This allows the trial to proceed if jurors
become ill or die (a trial can continue if a jury reduces to 10; any lower, and a retrial must
be ordered).
Opening addresses are made — The prosecutor gives an opening address telling
the jurors what the case is about, and refers to important witnesses and evidence. The
defence replies to the prosecutor’s opening address.
The defence counsel has the right to reply to the opening speech of the prosecutor to
outline issues in the trial and indicate briefly the facts, and the inferences which can be
made from those facts, that are not contested.
50
The Trial:
The judge addresses the jury — The presiding judge must address the
jury on the issues in the trial and the relevance of any admissions made,
directions given or matters decided during the directions hearings.
The prosecutor calls the crown witnesses — Each witness is sworn in
(this involves the witness swearing an oath, or making an affirmation if the
witness does not hold religious beliefs), being examined-in-chief (by the
prosecutor), cross-examined (by the defence counsel) and re-examined (by
the prosecutor).
A no-case submission may be made — If the defence counsel feels that
the prosecution has not proved the guilt of the accused, s/he can submit to
the court that there is no case to answer. If this is accepted by the court, the
charge is dismissed; if not, the case proceeds.
51
The Trial:
Defence counsel calls witnesses — Each witness is sworn in, examination inchief (by defence counsel), cross-examined (by the prosecutor) and
re-examined (by defence counsel). The accused can choose to give sworn
evidence and be cross-examined, or remain silent.
Evidence in reply may be called — The court may allow the prosecutor to call
evidence in reply to evidence given by the defence that could not reasonably have been
foreseen by the prosecutor from the defence response given before the trial.
Closing addresses are made — The prosecutor and the defence counsel
address the court with closing speeches. The prosecutor addresses the court
first. Both counsel explain to the jury the important parts of the evidence that
support their case. They also address the judge on the relevant points of law.
•
52
The Trial:
The judge sums up and directs the jury — The trial judge sums up, explaining
the relevant points of law to the jurors. The explanation includes the burden of proof,
the standard of proof and the main points relating to the offence.
If the trial judge believes that there is insufficient evidence against the accused for a
jury to return a guilty verdict, s/he can direct the jury to acquit the accused. The jury does
not have to follow this direction (although in practice the jury does follow it).
The judge cannot direct the jury to find a verdict of guilty.
A judge may set aside a jury verdict if it is manifestly unsafe at law, and find otherwise on
the basis of the evidence before the court.
53
The Trial:
The jury retires to consider its verdict — The jurors go into the jury room.
They may request copies of various documents to assist them in their deliberations.
The jury must:





discuss all the evidence
decide on questions of fact, that is whether they believe the accused is ‘guilty’ or ‘not
guilty’ according to the evidence
apply the law
reach a verdict.
The jury gives its verdict — If the accused is found not guilty, he or she is free to
leave the court, and cannot be tried again for the same offence (double jeopardy rule).
If the accused is found guilty, prior convictions are heard. Prior to sentencing, a plea for
leniency may be made and character witnesses may be called.
Sentencing — The trial judge passes sentence.
54
The Adversary System
55
The Westminster system utilises an ADVERSARIAL concept
Two sides (civil or criminal) battle to determine who wins.
Criminal:
Prosecution win = Guilty Verdict
Defence win = Not Guilty Verdict
Civil:
Prosecution win = Plaintiff wins
Defence win = Defendant wins
56
Party Control:
Each side has control of their case.
Following rules of evidence, each side can decide;
 how to invesitagte/present the facts
 how many witnessess are required
 what sort of evidence to present
 the need for legal representation, and
 methods to be used to adduce evidence
57
Role of the Judge:
An impartial adjudicator,
Present to control the case and rule on points of law.
Ensure fair treatment for both parties
58
Rules of evidence and procedure:
Only evidence relevant to the case may be presented.
Prior convictions are not heard until sentencing as they may bias the
Court. Propensity evidence may be allowed under some circumstances if it
can be shown that the accused has a propensity for a similar offence.
Hearing evidence –
Examination in Chief ~ Questioning of own witness
Cross Esamination ~ Demonstrate flaws in opposition case
Re-Examination ~ Clarify points from the cross
59
Equal representation:
If the system is to work effectively, both sides must have equal (or close to)
representation.
If there is an imbalance – the side with the most skilled/experienced
representation may out due to the lack of skills in their opponent.
Appeals can be used to address this imbalance – but are very costly
60
Advantages:
Truth should emerge through skillful questioning
Reliant on oral evidence
Parties in control of their own case
Impartial decision makers
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Truth may not emerge
Disadvantages:
Unequal representation
Oral evidence is flawed (understanding/language)
Legal expertise of Judges is under utlised
62
High Cost
Advantages:
Truth should emerge through skillful questioning
Reliant on oral evidence
Parties in control of their own case
Impartial decision makers
63
The Jury System:
Our legal system is predicated
on the concept of both
‘Trial By Jury’ and
‘Trial By Ones’ Peers’
64
The Jury System:
Juries are used in the original jurisdiction of both County and Supreme Courts
NOT PART of the Magistrates Courts.
NOT USED in appeals
Compulsory composition of 12 in criminal cases where the accused pleads Not
Guilty
65
The Jury System:
A criminal jury MUST try for a unanimous verdict!!
If not – a majority decision for crimes other than Commonwealth offences,
Treason or Murder. A majority is 11 of 12
A ‘hung jury’ occurs if the majority can not be made.
This means neither Guilt or Innocence and the accused can be retied later
66
The Jury System:
The finding of guilt must be BEYOND REASONABLE DOUBT
If a juror has any doubt, no matter how small, they MUST determine the accused
‘NOT GUILTY’
67
The Jury System:
In Civil cases a jury of six can be used, but is optional.
Either side can choose to empannel a jury.
A civil jury can reach a majority verdict of 5 to 1.
Civil cases are determined on the ‘Balance of Probabilities’
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The Jury System:
Ineligible - prospective juror can not understand the task or because of their occupation
(law or related)
Disqualified – prisoners of more than three years, or having been goaled for 3 mths + in
the last five years. Undischarged bankrupts
Excused – See Pge 133
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