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Prepare court documentation for criminal proceedings JUS404A.

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Presentation on theme: "Prepare court documentation for criminal proceedings JUS404A."— Presentation transcript:

1 Prepare court documentation for criminal proceedings JUS404A

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

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

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

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

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

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

8 Common Law Common law is also known as case law and arises from judicial decisions Common law is also known as case law and arises from judicial decisions Precedent (stare decisis) is a feature of common law systems Precedent (stare decisis) is a feature of common law systems Precedent means that courts must follow decisions of higher courts within the same hierarchy Precedent means that courts must follow decisions of higher courts within the same hierarchy Precedent is dependant upon case law judgements Precedent is dependant upon case law judgements

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

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

11 Common Law and Legislation Common law principles subordinate to legislation Common law principles subordinate to legislation Common law needs disputes before the courts to develop principles – (Donoghue v Stevenson) Common law needs disputes before the courts to develop principles – (Donoghue v Stevenson) Legislation plays a reforming and modernising influence Legislation plays a reforming and modernising influence Legislation is the voice of democracy – judges not accountable Legislation is the voice of democracy – judges not accountable

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

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

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

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

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

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

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

19 Legislation Parts Parts Chapters Chapters Sections Sections A Section is the main building block of an act. Sections themselves are broken down into smaller parts: A Section is the main building block of an act. Sections themselves are broken down into smaller parts: Sub Section Sub Section Paragraph Paragraph Sub Paragraph Sub Paragraph

20 66 Requirements of fine option orders 66 Requirements of fine option orders (1) A fine option order must contain requirements that the offender— (1) A fine option order must contain requirements that the offender— (a) must report to an authorised corrective services officer at the place, and within the time, stated in the order; and (b) must perform in a satisfactory way community service directed by an authorised corrective services officer— (i) for the number of hours stated in the order; and (ii) at the times directed by the officer; and Section and title Sub-paragraph Paragraph Sub- section

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

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

23 Navigating legislation Once you have located the legislation, download it in the PDF format if available, type ‘Ctrl F’ 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 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. 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? What do you do to locate the penalty for murder in the Crimes Act 1900? Type Ctrl F Type Ctrl F Enter ‘murder’ into the find box 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 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 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. 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? 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 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? What do you do if the find box does not locate the offence? Enter an alternative word, like ‘motor vehicle’ Enter an alternative word, like ‘motor vehicle’

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

27 DEFENCES

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

29 Presumptions Presumption of law is something that is accepted as a fact in the absence of the evidence. 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 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 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 Evidence is provided to prove a fact It can support a contested fact It can support a contested fact It can disprove an accepted fact It can disprove an accepted fact

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

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


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