Paul发的一些关于法庭程序和澳洲法律体系的信息
Accused Persons
Introduction
Note: For additional information on resources for Accused Persons see the
web site of the Legal Aid Commission.
A criminal action is different from a civil action in two important ways
Firstly, it is an action brought by the State against an individual;
and
Secondly, it does not seek full compensation for a person's
misconduct but rather punishment, by imprisonment or some other
penalty. A person whom the State brings a criminal action against is
called the "accused" (in the Supreme Court) or the "defendant" (in
the Magistrates Court).
When a person is convicted of a serious offences in the Magistrates Court
or the Supreme Court, the court is required to impose a compensation levy
under the Victims of Crime Compensation Act 1994.
The start of a criminal action
A criminal action begins with the police charging a person with an offence.
Offences are contained within Acts of Parliament and can be divided into
two general categories:
simple or "summary" offences; and
crimes or "indictable" offences.
Indictable offences are more serious than summary offences and are
generally dealt with in the Supreme Court.
All offences, with only rare exceptions, are officially recorded on a piece
of paper called a "complaint". This document is drawn up by the police and
contains:
the accused's name and address;
the name of the offence they are charged under; and
a brief summary of the facts which the police think make the accused
guilty of that offence.
Once a person has been charged with an offence the law requires that the
police bring them before a magistrate as soon as is reasonably possible. At
this first appearance the accused has a right to have his/her matter
adjourned to another date in order to decide whether he/she will plead
guilty or not guilty. Alternatively, they can plead to the charge on their
first appearance.
Bail
Once the accused has been remanded to a future date, or had pleaded not
guilty or guilty to the charge, the Magistrate will either remand the
accused in custody (gaol) or on bail.
"Bail" is an order of the court, or in some circumstances, of an authorised
police officer, which allows the accused to remain out of custody until
they are required to return to court in relation to the charges on which
they are accused. Bail orders will detail the date that the accused must
appear in court and may include conditions which the accused must comply
with and which, if he/she does not, may result in further action being
brought against the accused.
An accused person may be granted bail on their first appearance. If an
accused is refused bail and is remanded in custody, he/she may apply to the
Supreme Court to overturn the decision of the Magistrate and to grant bail.
If these applications are refused they will be required to remain in
custody until the next court appearance.
Link to Bail Act 1994
Magistrates Court or Supreme Court?
What happens after the accused has pleaded and has been either granted or
refused bail depends on the seriousness of the offence.
In the case of a summary offence, if the accused has pleaded guilty the
accused may be sentenced immediately or the Magistrate may adjourn the
matter to another date for sentence. If the accused has pleaded not guilty
then the Magistrate may adjourn the matter to another date for a "contest
mention".
A contest mention is a procedure in which the Magistrate has evidence put
before him/her so that:
there is a better understanding of the relevant issues; and
the accused can be given an idea of what sort of sentence is likely
if he/she is found guilty.
For further information on criminal cases in the Magistrates Court go the
Legal Aid Commission Facts Sheet
In the case of a crime or indictable offence, the Magistrate will need to
make an order for "committal" to the Supreme Court. This order means that
from that point on the case will be heard in the Supreme Court.
If the accused has pleaded guilty in the Magistrates Court then he/she will
be committed to the Supreme Court for sentence.
If the accused has pleaded not guilty in the Magistrates Court then the
Magistrate may order that a "committal proceeding" commence prior to moving
the case to the Supreme Court. At this proceeding the witnesses for each
side may be examined and cross-examined and the strength of the State's (or
Crown's) case against the accused will be assessed.
Appearance in the Supreme Court
The first date that an accused person actually appears in the Supreme
Court, unless they have applied for bail there, will almost certainly be on
a "remand day".
This is a day, usually at the beginning of a period set by the court to
hear criminal matters, when the Crown will mention a lot of matters to the
Judge and make suggestions as to when they should be heard for trial or
sentence; or the Crown may ask for a matter to be remanded off to another
day when they will be more likely to know when they will be ready for trial
or sentence.
When the Crown is finally ready to proceed, the accused will be brought
before the court and their matter announced. The accused will be asked to
plead to the charges read out from a document called an "indictment". An
indictment is a piece of paper detailing the charges against the accused
and is much like a complaint.
The only exception to this is when the accused has chosen to have their
summary offence heard in the Supreme Court, in which case the charges will
be read from the original complaint.
The effect is the same regardless of whether the charges are contained in a
complaint or an indictment.
The accused may change their plea at any point in the proceedings. If the
accused pleads "guilty" then he/she can either be sentenced then and there
or be remanded off for sentence on another day. If the accused pleads "not
guilty" then the trial officially begins at that point.
When the trial begins
Once an accused person has pleaded not guilty a jury will be empanelled to
try the case. The accused has a right to "challenge" six of the jurors and
have them removed from the jury.
Once the jury has been empanelled and finally sworn in to try the accused
person's case, the representative of the State, referred to as the
"prosecutor" or the "Crown" will make a short statement to the jury about
their version of events in regards to the accused person's case. The
accused or his/her lawyer will then be entitled to make a short statement,
with certain restrictions, about their version.
The Crown will then call witnesses to testify against the accused whom they
may then cross-examine when the Crown has finished with them. The Crown may
also produce physical or written evidence to support their case against the
accused. Once all the Crown's witnesses and other evidence have been
finished with, their case is said to be closed.
The accused may now give evidence personally, or call their own witnesses,
or both. Both the accused and their witnesses may be cross-examined by the
Crown. When the accused has no more witnesses or evidence left to produce,
the case is then closed.
The Crown and the accused, or their legal representative, will then both
address the jury to sum up the case as they see it and convince them of the
truth of their respective cases. The judge will then give some directions
about the law to the jury and they will then be sent out to deliberate over
whether the accused is guilty or not guilty.
When the jurors have finished deliberating they will alert the Judge's
Associate and the court will be reconvened. The Judge's Associate will then
ask them for their verdict and the fore-person will give it.
If the verdict is one of guilty then the Judge may proceed to sentence then
and there or may hold the accused (now called the "prisoner") to a later
date for sentencing. If the verdict is one of not guilty, the accused is
free to go.
Further questions
Can an accused change his/her plea at any time?
Yes. An accused person can change his/her plea from guilty to not
guilty, or vice versa, at any time during the proceedings, including
during the middle of a trial.
Must an accused person give or call additional evidence in a case against
them?
No. An accused person is presumed to be innocent until proven guilty
and is therefore under no obligation to give or call additional
evidence in order to prove his/her innocence. It is up to the Crown
to prove that the accused has committed the offences alleged and if
the Crown does not prove this to the satisfaction of a jury, then the
accused will be discharged.
Must an accused person have a lawyer to represent them?
No. If an accused does not wish to have a lawyer represent them in
court they may represent themselves. If they do wish to have a lawyer
but cannot afford one they can apply to the Legal Aid Commission for
legal representation. An accused may not ask someone who is not a
lawyer to represent them: the accused must either do it personally or
obtain the services of a lawyer.
Can an accused appeal against the decision of a lower court?
Yes. Decisions in the Magistrate's Court may be appealed to the
Supreme Court. Decisions of a single Judge of the Supreme Court may
be appealed to the Court of Criminal Appeal, which is made up of
three Judges. Decisions of the Court of Criminal Appeal may be
appealed to the High Court of Australia. No appeals are possible from
the High Court.
Are all serious/indictable offences heard in the Supreme Court?
As a rule, yes. However, for certain offences which are technically
indictable but are not in reality very serious, the courts provide
that the accused may be dealt with in the Magistrates Court. An
example of this is stealing something valued at under $5,000. Where
the offence is the same, i.e. stealing, but is more serious in
nature, valued at between $5,000 and $20,000, the accused has a
choice whether to defend the charge in the Magistrates Court or in
the Supreme Court. |
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