The document provides an overview of the criminal trial process in New South Wales, Australia. It discusses the different courts' jurisdictions and the types of cases they hear. For example, it states that the Local Court hears summary offenses and conducts committal hearings, while the Supreme Court hears the most serious crimes. It also outlines key aspects of the criminal trial process like pleas and charge negotiation, the use of evidence, and the roles of legal personnel and juries. Overall, the document serves as a reference guide to the New South Wales criminal justice system.

1. HSC CORE - CRIME
SECTION 3 - CRIMINAL TRIAL
PROCESS
Mr Shipp
Term 2, 2014

2. MAIN SYLLABUS POINTS
Hint: The largest section for evaluating the effectiveness theme

3. COURT JURISDICTION
• Courts will be used depending if it is a bail hearing,
committal hearing or trial
• Some courts will have power to hear certain trial cases.
Local, District, Supreme
• The authority for a court to hear a matter for the first time is
known as the court’s original jurisdiction
• The authority to review matters on appeal from another
court is known as the court’s appellate jurisdiction.
Hint: Remember the crimes and which court they will be heard in

5. • Hears summary offences
• Conducts committal hearings to
establish Prima Facie
• No jury present
• Bail Hearings will often be heard
• The local court can be efficient, it may
be cheaper and quicker to establish
the correct evidence for a trial
1. The Local (Magistrates) Court

6. • Deals with suspicious
crimes when death
occurred:
• in a violent way
• after an accident
• in police custody
• receiving medical care
• The coroner doesn’t try
people rather present
sufficient evidence that a
criminal act has occurred
2. The Coroners Court

7. • Deals with crimes committed by Under 18year
olds, except homicide, aggravated sexual
assault and some traffic offences
• Closed Court and focuses on rehabilitation
3. The Children’s Court

8. JUSTIN BIEBER EGG THROWING CRIME
CHILDREN’S COURT

9. • Diversionary court setup in 1999
• Aims to manage repeat offenders with drug
addiction
• Local and District jurisdiction
4. Drug Court of NSW

10. • Trial court, usually jury of 12 people
• Majority of indictable offences
• Court Proceedings will take longer than the local
court and cost more money to the accused
5. The District Court

11. GRAFFITI VANDALS - DISTRICT COURT

12. • Most serious crimes murder, major conspiracy and
drug offences, Commonwealth breaches of
corporate law, kidnapping and serious sexual assault
• Hears appeals from lower courts known as ‘stated
cases’
6. Supreme Court of NSW

13. KELLI LANE TRIAL EVIDENCE

14. • That people cannot be retried for the same crime
once they have been acquitted, for serious crimes
• Crimes (Appeal and Review) Act 2006 (NSW)
Double Jeopardy rule

15. DOUBLE JEOPARDY RULE
VICTORIA

16. • Appeals from the District
or Supreme Courts, some
local court cases on
questions of law
• Appeals may include a
question of law, a question
of fact(evidence), or a
challenge to the severity
or adequacy of a sentence
7. Criminal Court of Appeal
Hint: The right to appeal is a paramount right for the accused,
however it may only be used by those who can afford it

17. GORDON WOOD APPEAL

18. • Most criminal cases will be held in state courts.
This is the highest appeals court though
• Interprets the Constitution which may involve
criminal law
8. The High Court

19. • This federal court will hear some criminal matters
which come under the Trade Practices Act (Cth)
1974
• Copyright breaches
• breaching safety standards
9. The Federal Court

20. THE ADVERSARY SYSTEM
• Criminal justice system is based on an adversarial
system of law
• Opponents argue that in many cases the
competing sides are not equal before the law, with
potential imbalances in resources, skills or
knowledge. The Jury may also misunderstand the
case
Hint: As criminal law uses the adversarial system, many themes in
crime can use this section e.g. Juries

21. ACHIEVING JUSTICE IN THE
ADVERSARIAL SYSTEM
Positives Negatives
Both sides are given the opportunity to
be heard
In many cases both sides are not equal
before the law
An impartial judge is used as well as a
jury
The full truth may not be discovered due
to high standard of proof and rules of
evidence
Strict rules of evidence, involving
hearsay, relevance and opinion
the resources and skills of barristers may
be different
past records of the accused can only be
used in sentencing
not using past records may withhold
critical evidence

22. LEGAL PERSONNEL
• Judges and Magistrates - learn the
difference between the two (Yr11
Notes)
• Prosecutors - Police Prosecutor (local)
and Director of Public Prosecutions
(DPP)
• Barristers, Public Defenders and
Solicitors - a Public Defender is public
barristers who can appear for an
accused in serious criminal matters
where legal aid has been granted

24. PLEAS AND CHARGE
NEGOTIATION
• The law requires the
accused to enter into a
plea of guilty(80%) or not
guilty
• Pleas will affect the
sentencing process
especially if the accused
admits guilt at this stage
Pleas

25. • This is where the accused will admit guilt to a lesser
charge in order for higher charges to be withdrawn
• This will result in faster and less costly cases for the
prosecution (discretion)
• Handled under the Prosecution Guidelines of the Office of
the Director of Public Prosecutions. Limited transparency
Excellent
News Article
Case: Karl Koch sexual
assault case Nanette
May
Charge Negotiation
click here for radio program on Charge Negotiations

26. For Plea Bargaining Against Plea Bargaining
decreases time delays and
costs
crimes may go unpunished
Increases the rate of
criminal convictions
accused may plead guilt to
a lesser charge they are
innocent towards
conviction on a lesser
charge is better than no
charge at all
May lead to bullying of the
accused and not give the
right to fair trial
Hint: Great for effectiveness and balance of rights themes

27. BALANCE OF RIGHTS
Community
efficient, quick and
inexpensive however justice
is hidden
Victim
saves them from giving
evidence however victim is
not involved in CN and
offender is not punished
sufficiently
Accused
plead guilty to a lesser charge
due to costs of trial or has
been pressured
ACHIEVING JUSTICE

28. LEGAL REPRESENTATION AND
LEGAL AID
• Dietrich v The Queen 1992 in the high court
established the right to a fair trial in consideration
to the accused not being able to afford legal
representation
• Everyone doesn't have the finances to seek proper
legal representation. Can result to injustices in the
courtroom

29. • In 1979, the Legal Aid Commission was established by the
state government
• It was created:
• to give access to proper law representation for
marginalised and disadvantaged groups
• to have equitable access before the law for all groups of
society

30. • The defendant must be means tested to decide whether their
income or assets can pay for legal representation (most
important)
• Merit Test will not be used in criminal matters unless in appeals
where there is a good chance of winning
• Jurisdiction Test will be used to see what area of law is being
used. Not all areas of law will be covered and most pass this test
• Legal Aid is often limited in funding where many people who
require assistance may not receive it
Hint: Legal Aid is a great way for the accused to gain access to
the law, however depending on the funding of government,
resource efficiency could be affected

31. BURDEN AND STANDARD OF
PROOF
• Burden of Proof - in criminal matters, the responsibility
of the prosecution to prove the case against the accused
• Standard of Proof - the level of proof required for a party
to succeed in court. Prosecution must prove the case
beyond reasonable doubt
• Prosecution will often bring a case to trial if they believe
there is enough evidence to prove the guilt of the
accused to the jury (discretion)

32. • Crimes (Criminal Organisations Control) Act in
2009 first introduced - restrict bikie association,
increased powers for judges. Due to the Anthony
Zervas Murder
• Wainohu v New South Wales 2011 - high court
rules legislation invalid
• The Crimes Amendment (consorting and organised
crime) Act 2012 - clearing up high court decision
Case Space: Anti Bikie gang laws
Hint: This is a great case study that can be used in many ways
for a 15 mark HSC question

33. WAINOHU V NEW SOUTH WALES 2011
HIGH COURT DECISION

34. NEW ANTI-BIKIE LAWS -THE CRIMES AMENDMENT
(CONSORTING AND ORGANISED CRIME) ACT 2012
MARCH 2012

35. USE OF EVIDENCE, INCLUDING
WITNESSES
• For evidence to be admissible
it needs to be relevant and
obtained legally by the crown
• The different forms of evidence
are witness testimony, real
evidence (tape recordings,
charts, photographs etc) and
documentary evidence
(documents from the crime
scene)

36. • Anyone who witnessed a
crime or was interviewed by
police may be subpoenaed
to appear later in court
• The witness will be cross
examined by both sides of
the adversary system
• An expert witness may be
called who is qualified in a
specific area (DNA testing,
mental health doctor)

37. DEFENCES TO CRIMINAL
CHARGES
• Most defences revolve around
the mens rea of the offence
• Defences help achieve justice
because it considers the
accused actions surrounding
the crime
• A defence can simply be
innocent of the alleged charges

38. • If successfully proven, the accused will be
acquitted of all charges in the trial
complete defences

39. • a defence that is only available where
the accused can prove that they were in
fact mentally incapacitated when they
committed the offence
• This relates to proving a lack of mens rea
• The defence of insanity is very difficult to
prove
• The McNagthen Test 1843 is used to
prove whether the accused can use
insanity
1. Mental illness/insanity

40. • Relating to the mens
rea of the accused –
that the accused’s
action was not
voluntary or could not
be controlled
• Mens rea cannot be
established under this
defence
2. Involuntary behaviour/Automatism

41. • The accused can show they
carried out a crime in the
act of defending
themselves or property
• Jury is compelled to either
acquit the defendant or
find them guilty of the
crime
3. self defence/necessity
In R v Zecevic (1987) it was held that the defendant must have
reasonable grounds to believe their life was threatened and they
must use ‘proportional and reasonable force’ to defend themselves.
Zecevic’s Case stemmed from a dispute over a parking space

42. • Defendant may be
acquitted if they can show
they acted against their will
under unlawful pressure e.g
held at gunpoint to commit
murder
4. Duress
In R v Williamson [1972] NSW the
defendant disposed of a body while
under a death threat and this threat
was held to constitute duress.

43. • Complete defence for some crimes if the accused
can show the victim freely consented to the act in
question e.g sexual assault
• This cannot be used for crimes such as murder
5. Consent

44. • Mitigating circumstances that caused them to carry
out the act. This may reduce the sentence or even
acquit the accused
• A good example is a murder charge downgraded
to manslaughter
Partial Defences to Murder

45. • Whereby the defendant claims that
their actions were a direct result of
another person’s actions, and caused
them to lose control of their actions
• Abolished in other states but not
NSW
1. Provocation
In R v Camplin [1978] , a 15-year-old boy successfully argued
provocation after he hit his uncle with a frying pan and killed him. The
uncle had just sexually assaulted the boy and was mocking him about
the incident. The court held that an ‘ordinary person’ in the position of
the accused would have formed the intent to kill or inflict grievous
bodily harm on the person who had assaulted them.

46. • The Crimes Amendment (Provocation) Act 2014
(NSW)
• Extreme provocation only allowed as a defence for
murder. Not used when an individual wants to
end the relationship but can be used for
prolonged domestic violence
• R v Singh 2012 - case that led to reform
Case Space: Provocation Reforms
Hint: This reform was made to bring provocation in line with
community standards and to improve the right of women

47. PROVOCATION REFORMS

48. • When the accused is suffering from a mental
impairment that caused them to commit the crime
• abnormalities include a low IQ or mental retardation
• Being drunk or under the influence of mind-altering
drugs cannot be used
2. Substantial Impairment/Diminished Responsibility
R v. Byrne (1960), the accused was a sexual psychopath with violent
sexual desires that he could not control. Most of the time he was
considered to be normal, but the occasional episodes had led to
homicide in the past. In this case, the court ruled that the charge of
murder should be reduced to that of manslaughter.

49. Hint: The prosecution will normally take cases to court knowing
they will get a guilty verdict (Discretion)

50. ROLE OF JURIES: INCLUDING
VERDICTS
• Used in District or Supreme Court in the Adversary
System
• Jury of 12 people whose job is to ‘fact find’

51. • Both the prosecution and the defence have the right to
challenge jurors
• Peremptory Challenge - when the legal team strikes a
juror without needing a specific reason. (only knows their
name)
• Challenge for Cause - when the legal team strikes a juror
because it is believed that for some reason the juror will
be prejudicial
challenging jurors

52. • Jurors are sworn in
• They are allowed to make notes
• The Jury must remain fair and
open minded
• They must not discuss the case
outside of the court
• If enough time has been taken
to make the decision a majority
verdict may be allowed
Jury Role

53. • Jury will decide Guilty or Not Guilty
• If they cannot reach a verdict this is called a ‘Hung
Jury’. This can lead to a retrial
• Retrials can be a major strain on both the
prosecution and accused
Verdict

54. • Jury Act 1977 (NSW)- main operation of the
system
• Jury Amendment (Verdicts) NSW Act 2006 - 15
jurors can be selected but 12 will decide. Also
majority verdict introduced
• Jury Amendment Act 2010 - to improve the
eligibility and selection of jurors
Jury Legislation
Hint: This issue is a must for law reform

55. For Majority Verdict Against Majority Verdict
removing unreasonable jurors
in the process
disagreements are rare
avoid time delays and cost
discounting the possibility of
finding a reasonable doubt
decision
saving the victim from a retrial
may persuade the jury from
the beginning that they only
need to get an 11 count
Unanimous Verdict vs Majority Verdict
Hint: Another classic balance of rights section

56. Hint: Crime Reform is a constant theme throughout all sections.
Reading Time

57. MULTIPLE CHOICE: CRIME
1. The Coroner’s Court is which of the following?
a - a court that deals with the cause and manner of
a person’s death
b - a court where most criminal cases are heard
c - a court where the general public are prohibited
from viewing proceedings
d - the highest court in Australia

58. a - a court that deals with the cause
and manner of a person’s death
answer:

59. 2. Which of the following best describes the defence of
duress?
a - the accused claims that the victim consented to the crime
carried out against them
b - the accused tries to prove that they committed a crime
against their own free will
c - the crime was done in the act of self-defence
d - the victim’s actions caused the accused to lose control

60. b - the accused tries to
prove that they
committed a crime
against their own free
will
answer:

61. 3. A public prosecutor is
a:
a - judge
b - magistrate
c - lawyer
d - police officer

62. c - Lawyer
answer:

63. 4. When a defendant pleads guilty to a
lesser charge in exchange for another
charge being withdrawn it is referred to as:
a - plea bargaining
b - bail bargaining
c - double jeopardy
d - committal hearing

64. answer:
a - plea bargaining

65. 5. The standard of proof in a criminal
case is best described as:
a - beyond reasonable doubt
b - balance of all probabilities
c - diminished responsibility
d - innocent until proven guilty

66. a - beyond reasonable doubt
answer:
I HAVE
DOUBT

67. 6. Ray is charged with importing a large
amount of cocaine, to which he pleads guilty.
Which court will sentence Ray?
A -The Local Court
B - The Supreme Court
C - The High Court
D - The District Court

68. B -The Supreme Court
answer:

69. 7. Which of the following best describes the purpose of a
committal hearing?
A - To assess whether there is a prima facie case
B -To sentence a person found guilty of a crime
C - To determine the accused person’s guilt
D - To decide whether the Crimes Act 1900 defi nes the
offence as a crime

70. A - To assess whether
there is a prima facie
case
answer:

71. 8. Jack hit a man who pushed and shouted at his elderly
mother. What defence should Jack use in this case?
A - Self-defence
B - Provocation
C - Necessity
D - Compulsion

72. B - Provocation
answer:

73. 9. Who decides a question of law in a criminal
case in the NSW Supreme Court?
(A) The jury
(B) The judge
(C) The defence
(D) The prosecutor

74. B - The Judge
answer:

75. 10. What is the first step in a criminal trial
process for murder?
(A) A jury is empanelled.
(B) An arrest warrant is issued.
(C) A committal hearing is held.
(D) The offender is charged by police.

76. C) A committal Hearing is held
answer:

77. 11) In a criminal case, with whom does the
burden of proof rest?
A The defence
B The judge
C The prosecution
D The jury

78. C) The prosecution
answer:

79. 12. In most summary matters, who presents the
prosecution case?
A Crown prosecutors
B The Director of Public Prosecutions
C Police prosecutors
D Summary Offences Prosecutions Office

80. C) Police Prosecutors
answer:

81. 13. What type of hearing is used to determine if a
case involving a serious
indictable offence will proceed to trial?
(A) Onus of proof
(B) A coronial inquiry
(C) A committal hearing
(D) A summary proceeding

82. (C) A committal hearing
answer:

83. 14. Which of the following is NOT a
complete 19. defence to murder?
(A) Duress
(B) Necessity
(C) Defence of another
(D) Provocation

84. (D) Provocation
answer:

85. 15. Which statement is true of our criminal justice system in
NSW?
a) The burden of proof is on the plaintiff and the standard of
proof is on the balance of probabilities
b) The burden of proof is on the prosecution and the standard of
proof is on the balance of probabilities
c) The burden of proof is on the prosecution and the standard of
proof is beyond a reasonable doubt
d) None of the above

86. c) The burden of proof is on the
prosecution and the standard of
proof is beyond a reasonable doubt
answer:

87. 16. Which statement is true about the court
hierarchy?
a) The Federal court hears numerous criminal matters
b) The High Court hears numerous criminal appeals
c) A District Court judge may hear a committal
hearing for a Local Court trial
d) The Children’s Court is part of the Local Court level

88. d) The Children’s Court is part of the
Local Court level
answer:

89. 17. Which statement is false about the court hierarchy?
a) The NSW Supreme Court hears matters concerning indictable
offences
b) The Local Court has original jurisdiction for summary criminal
matters and appellate criminal jurisdiction
c) The District Court has original jurisdiction for indictable
criminal matters and appellate criminal jurisdiction
d) The High Court may hear appeals from Court of Criminal
Appeals if leave is granted

90. b) The Local Court has original
jurisdiction for summary criminal
matters and appellate criminal
jurisdiction
answer:

91. 18. When an accused agrees to plead guilty to lesser charges in
order to avoid charge on a more serious matter, this is known as:
a) plea bargaining, case conferencing and charge negotiation
b) plea bargaining, case conferencing and judicial discretion
c) case conferencing, charge negotiation and legal aid
d) judicial discretion, case conferencing, charge negotiation

92. a) plea bargaining, case conferencing
and charge negotiation
answer: