The Rights of an Accused

The Rights of An Accused The right to be tried without unreasonable delay The Criminal Procedure Act 2009 (Vic) creates time limits for the start of trials. If an accused is charged with a sexual offence the trial must commence within 3 months from the day on which the person is committed for trial. If charged with an offence other than a sexual offence, the trial must start within 12 months.

The Rights of An Accused The right to a fair and unbiased hearing Pre-trial procedures Bail Trial

Criminal Pre-Trial Procedures Procedures that occur before a trial commences in a criminal case in the County or Supreme Court Purposes of criminal pre-trial procedures include protect the rights of the accused provide rights to the police provide an opportunity for the accused to be released pending trial clarify issues determine whether a trial should proceed determine if the accused wishes to plead guilty or not guilty Types of criminal pre-trial procedures Bail Remand Committal hearings Directions Hearing Once a person has been brought into custody, the alternatives for future dealings are that the person is : released – the police can release a person without charging him or her with a crime given a cautioning notice on the condition that they will be of good behaviour for the next fiveyears – for first-time offenders involved in minor offences. The offender must admit to the crime,co-offenders must be identified and the crime should involve no more than five incidents. If afurther crime is committed within five years, the offender goes to court and the caution note istreated as a prior conviction released pending summons – the suspect can be released pending the charge and summonsbeing served on the suspect at a later date, telling him or her which court to attend and the time ofthe hearing charged and released on bail remanded – charged and brought before the Magistrates’ Court for a remand application. Thecourt will decide if the suspect is to be remanded or given bail, alternatively, a bail justice can becalled. The bail justice will conduct a hearing and decide if the suspect should be remanded orallowed bail.

Strengths of pre-trial procedures Bail Upholds rights of accused Presumes an accused person is entitled to bail Can be granted with conditions (balance of rights and protection of society) Avoids exposure to influences of prison Remand Ensures justice can be done Protects society Ensures witnesses are protected and evidence not impeded Committal hearings Save time and resources Accused is informed of prosecution’s case Support notion that accused is innocent until proven guilty Charges may be withdrawn or combined – helps achieve a fairer trial and save time

Weaknesses of pre-trial procedures Bail Risk that the accused absconds Risk that the accused will reoffend or cause harm to society Accused may try to talk to witnesses, damage evidence or obstruct justice Bail process is very complicated, time-consuming and stressful Remand Does not uphold notion that the accused is innocent until proven guilty Exposure to jail – risk of reoffending Expensive Committal hearings Process is extremely complicated and expensive Can add to delays Can be stressful and inconvenient for many parties Could be considered unnecessary for stronger cases

Bail Accused released from custody after being charged Must appear in court at a later date May be granted at various stages Most are granted bail and released on their own undertaking (a promise to appear in court when required) May be released if a surety promises to pay a sum of money Can be granted by: a police officer at the station when a person is charged a magistrate at a bail hearing in the Magistrates’ Court an honorary justice (formerly known as a bail justice)

Conditions that could be imposed along with undertaking or surety Reporting to a police station Residing at a particular address Submitting to a curfew Not contacting specified persons or classes of persons Surrender of passport Not drive a motor vehicle or carry passengers when driving Specifying locations or zones that the accused must not visit Purpose of bail Allow an accused person to go free until the hearing or trial Allows time out of custody to prepare case Upholds presumption of innocence

Remand If not on bail, accused is held on remand – kept in custody until trial Time on remand if person found guilty may be deducted from prison sentence Purpose Protect the community Ensure the accused will be at the next hearing Prevents interference with witnesses or obstructing the course of justice

The right to silence

Police Caution I must inform you that you are not obliged to say or do anything, but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights; You may communicate with or attempt to communicate with a friend or a relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. If you are not a citizen or permanent resident of Australia, you may communicate with or attempt to communicate with the consular office of the country of which you are a citizen.

Police Investigation While the police will investigate most crimes, not all crimes will be prosecuted. Depending on: The amount of evidence obtained to support a conviction The willingness of witnesses to cooperate with investigations The nature and seriousness of the offence The age of the offender/s The offender’s previous criminal history.

Police Questioning The right to remain silent Police can ask for a name and address Searches With a warrant Must prove they have reasonable grounds to believe that they will find stolen goods/goods that may be evidence/goods may be used in a crime/evidence Without a warrant If they believe a person is carrying illegal drugs, stolen goods, firearms or offensive weapons. Can also search anything the person is carrying and their car. Fingerprints Finger, palm, toe and sole prints Destroyed if not charged within 6 months – must be informed Videotaped – copy 10-14 parent or guardian present or order from Children’s Court. Body Samples and DNA Person under the age of 10 cannot be forced to give a blood sample 10-17 under order of Children’s Court

Police Interview http://www.abc.net.au/7.30/content/2013/s3770435.htm

The Rights of an Accused cont … The right to trial by jury