The Prosecution Process
The following summary explains the criminal prosecution process.
Investigations are carried out by State and Federal Police Forces, by Joint Task Forces made up of officers from both, by Commissions such as the Australian Crime Commission or a State Crime Commission, by the State Coroner, ICAC, ASIC and other Government Departments and bodies such as Customs, Australian Tax Office, Roads and Maritime Authority, Centre Link, Royal Commissions, and a large number of other bodies with investigative powers.
Some of these conduct both private and public hearings, and have the power to initiate a prosecution. Others, such as the Coroner or ICAC must refer matters to the Director of Public Prosecutions for his consideration whether to prosecute.
Because the procedure and rules in criminal cases differs from civil or commercial litigation, the approach taken by experienced criminal lawyers is also different. A client may expect that the lawyer will attempt to satisfy the investigating body of the client’s innocence or curtail the investigation by promptly providing information. In practice this is rarely the case.
Some recent developments are tending however towards defence disclosure at an early stage. Investigative bodies may have a policy of leaving it to the court to resolve allegations, even when there are strong reasons to believe a prosecution will not succeed. Watsons has the experience that will guide the client and ensure that where there are specific statutory protections that need to be invoked to limit the use of evidence in later prosecutions the client will be informed.
Commencement of Prosecution
Prosecutions are initiated by the issue of a Summons or a Field Court Attendance Notice (called a Field CAN) or by arrest and charging under a Court Attendance Notice (CAN). Once a person is charged he or she has to appear in court to answer the charge or charges. There are established procedures that provide for the person to be informed of the case to be brought and the evidence to be relied upon by the prosecution. This is achieved by the court making orders for service on the person or on the person’s lawyer of that evidence.
The serious nature of some offences or a person’s criminal history or personal circumstances may mean that a police officer who has the power to grant bail decides to refuse bail. If bail is refused the person must be brought by police before a Magistrate as soon as possible to enable the person to make an application for bail. Sometimes these applications occur on weekends when a special bails court sits to hear urgent applications.
Whether bail will be granted by the court will be governed by many different factors. There are legal presumptions for and against bail that apply to different types of charges and to people with certain prior criminal records. There are specific criteria to be considered that are set out in legislation. The court will consider information placed before it by police and by the person applying for bail, and make a bail determination.
That determination will be affected by the Magistrate’s assessment of the strength of the prosecution case as set out in the police facts, the seriousness of the offence charged, the likelihood of the person committing further offences, the likelihood of the person absconding or interfering with witnesses, the person’s criminal record, the likely penalty if found guilty, the availability of security and of a place to live, the strength of the person’s community, employment and family ties, the availability of a passport to surrender, the adequacy of reporting and other conditions designed to monitor compliance with bail conditions and any other relevant and credible information.
A client’s prospects of retaining liberty pending the hearing are greatly enhanced by skilful management and assertion of the client’s rights in this period immediately after arrest and by effective preparation and presentation of the bail application. It is not a routine matter. It is the first step in what may be a lengthy battle to protect his or her rights and freedom. The client’s ability to be effective in maintaining a defence can be significantly impacted if bail is refused. It is not only disruptive to personal relationships, employment and support of dependents, but it is considerably more difficult to communicate with lawyers and to have access to critical information from a remand prison. The ability to access computers is either very restricted or impossible altogether.
This is where Watsons, with decades of experience, can help plan and execute the best course of action right from the start. We study the prosecution allegations charges and evidence. We look into the background material, community ties, the availability of bail security from the client, family and friends, and assess each of the matters that will be relevant to the application for, and grant of bail, on terms that can be met. We present a carefully prepared bail application with the objective of securing the client’s freedom without jeopardising defence options.
Reading, Analysis and Preparation
When the prosecution serves the brief of evidence upon which it intends to rely, rather than just the initial assertions made by police or investigators about the case, the defence is able to gain increasing insight into the strengths and weaknesses of the prosecution case.
Careful reading and analysis, conferences with the client and witnesses, and any necessary investigation, supplemented by call on appropriately drafted subpoenas enables Watsons to provide advice to the client, drawing on the many years of experience in defending a wide range of charges. Those vary from dishonesty involving modest sums to major fraud involving hundreds of millions of dollars, from drug offences of possession of small quantities for personal use to charges involving large commercial quantities measured in tonnes.
Drug cases handled over many years span cultivation, manufacturing, importation, trafficking, supply and conspiracies to do these. The firm has extensive experience with corporate fraud, corporations law offences, white collar crimes such as tax evasion, money laundering, failure to declare funds transferred internationally, currency counterfeiting, contested proceeds of crime and asset forfeiture or proceeds assessment cases.
Plea to be entered - either ‘Not Guilty’ or ‘Guilty’
Apart from rare cases where a formal defect in the wording of a charge requires challenge to the validity of the charge there are only two pleas that can be made to a charge. One is ‘not guilty’ and the other is ‘guilty’. A plea of ‘not guilty’ does not equal a plea of innocence. A plea of ‘not guilty’ is saying that the facts and/or the elements of the offence are not admitted and it is up to the prosecution to prove them.
A plea of guilty admits only the essential elements of the offence charged. A plea of ‘guilty’ does not necessarily admit the correctness of every fact asserted by the prosecution. There may still be a dispute about the facts. Entering a plea is just one of the steps that must be taken, and it should only be taken after receiving competent advice.
Jurisdiction - which court will hear the case.
The Local Court has jurisdiction called summary jurisdiction for less serious offences which involve either a defended hearing following a plea of not guilty or a sentence hearing following a plea of guilty. For more serious offences known as indictable offences the Local Court has jurisdiction to hold committal proceedings for ‘not guilty’ pleas or committal for sentence to the District or Supreme Court following a plea of guilty.
In Local Court summary hearings the evidence is heard by the Magistrate who makes the decisions about the facts and the law, and at the conclusion of the hearing either dismisses the charge or finds the charge to have been proved and then proceeds to sentence. In summary hearings the Local Court Magistrate determines both guilt and the sentence.
For indictable offences the Magistrate does not make findings of guilt nor does the Magistrate pass sentence. For indictable offences the Local Court hears committal proceedings only to determine whether to dismiss the charge, if the evidence is insufficient to prove the charge, or to commit the person to stand trial before a jury in either the District or the Supreme Court. Where guilt is admitted, the Local Court commits the person for sentence in one of those courts.
In District and Supreme Courts trials the evidence is usually heard by a jury which makes the decisions about the facts and the judge makes the rulings about the evidence and decisions about the law to guide and assist the jury to reach its verdict. The jury decides whether the person is not guilty or guilty and if it finds the person guilty the judge sentences the person. In some cases a person may request a trial by the Judge only.
At sentence hearings, whether heard by a Magistrate in the Local Court or by a Judge in the District or the Supreme Court, evidence is presented that bears on the circumstances of the offence, on the character and mental or physical health of the person, the person’s criminal record, if any, and any other evidence that is relevant to determining the background and roles of the person and of any other related offenders. Before sentence is passed submissions are made by the prosecutor and by the defence lawyer. The Magistrate or the Judge then passes sentence.
Appeals – against conviction, sentence or on a question of law.
Appeals against conviction or sentence from a Magistrate’s decision are to the District Court, appeals on a question of law decided by a Magistrate are to the Supreme Court, appeals against conviction by jury or sentence by a Judge from the District or Supreme Court are to the Court of Criminal Appeal, appeals on a question of law from a judge of the District or the Supreme Court are to the Court of Appeal and appeals from the decisions of the Supreme Court, Court of Appeal or Court of Criminal Appeal are to the High Court.
The issues in appeals are almost always complex and there are many principles applied that require specialised knowledge, skill and experience. This is an area where it is vital to know those principles and the rules, as in many cases they are not appreciated by the inexperienced until it is too late.