Australia - Revision history

Ibjadmin at 14:26, 4 November 2016

2016-11-04T14:26:18Z

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	=== Criminal Law system ===		=== Criminal Law system ===
	==== Double jeopardy ====		==== Double jeopardy ====
	Double jeopardy is generally understood as the principle that a person should not be tried or punished twice with respect to the same, or a substantially similar offence. This principle has long been a feature of the common law in Australia<ref> Attorney General's Department website, 'Minimum guarantees in criminal proceedings': ~~http~~://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Minimumguaranteesincriminalproceedings.aspx.</ref> and is contained in legislation in various States and Territories.<ref> See, for example, Criminal Code (WA) s17; Criminal Code (Qld) s17; Acts Interpretation Act 1915 (SA) s 50.</ref> Further, the Victorian and ACT human rights legislation includes the right not to be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.<ref> Human Rights Act 2004 (ACT) s 24; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26.</ref>		Double jeopardy is generally understood as the principle that a person should not be tried or punished twice with respect to the same, or a substantially similar offence. This principle has long been a feature of the common law in Australia<ref> Attorney General's Department website, 'Minimum guarantees in criminal proceedings': https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Minimumguaranteesincriminalproceedings.aspx.</ref> and is contained in legislation in various States and Territories.<ref> See, for example, Criminal Code (WA) s17; Criminal Code (Qld) s17; Acts Interpretation Act 1915 (SA) s 50.</ref> Further, the Victorian and ACT human rights legislation includes the right not to be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.<ref> Human Rights Act 2004 (ACT) s 24; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26.</ref>

	However, the double jeopardy rule has now been modified in a number of jurisdictions in Australia by allowing for an accused who has been acquitted to be retried for the same offence in two instances; firstly, where the offence is very serious and fresh and compelling evidence is discovered; and secondly, where the acquittal was tainted, eg, where the accused bribed an official in the case.<ref> Bagaric, Mirko, Ross on Crime (Thomson Reuters, 6th edition, 2013), 588. See, for example, Criminal Procedure Act 2009 (Vic) Pt 7A, Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) and Criminal Code (Qld) Ch 68.</ref>		However, the double jeopardy rule has now been modified in a number of jurisdictions in Australia by allowing for an accused who has been acquitted to be retried for the same offence in two instances; firstly, where the offence is very serious and fresh and compelling evidence is discovered; and secondly, where the acquittal was tainted, eg, where the accused bribed an official in the case.<ref> Bagaric, Mirko, Ross on Crime (Thomson Reuters, 6th edition, 2013), 588. See, for example, Criminal Procedure Act 2009 (Vic) Pt 7A, Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) and Criminal Code (Qld) Ch 68.</ref>

Ibjadmin at 11:57, 4 November 2016

2016-11-04T11:57:23Z

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	===Fair Trial Rights===		===Fair Trial Rights===
	====Freedom from prolonged pre-trial detention====		====Freedom from prolonged pre-trial detention====
	Victorian criminal law requires that trial of a person for an offence must commence within 12 months after the day on which the person is committed for trial or if no committal proceedings have been held then 12 months after the day on which the indictment against the person is filed.<ref> Criminal Procedure Act 2009 (Vic) s 211.</ref> For sexual offences the equivalent time limit for commencing trial is 3 months.<ref> Criminal Procedure Act 2009 (Vic) s 212.</ref> The Victorian and ACT human rights legislation also afford a person charged with a criminal offence the minimum guarantee to be tried without reasonable delay.<ref>Human Rights Act 2004 (ACT) s 22(2)(c); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).</ref> Australia's counter-terrorism regime and immigration detention practices have been criticized on the basis that the period of detention provided for is often arbitrary, and therefore, in breach of the detainee's human rights.<ref> Law Council of Australia, website, 'Immigration Detention and Asylum Seekers' <http://www.lawcouncil.asn.au/lawcouncil/index.php/current-issues/immigration-detention-and-asylum-seekers>~~; Amnesty International, 'Review of anti-terrorism laws welcome, but some proposals are not acceptable' 13 August 2009 <http://www.amnesty.org.au/news/comments/21541/>.~~</ref> Additionally, in certain cases, migration law may allow indefinite detention of persons seeking asylum in Australia.<ref> Al-Kateb v Godwin (2004) 219 CLR 562.</ref>		Victorian criminal law requires that trial of a person for an offence must commence within 12 months after the day on which the person is committed for trial or if no committal proceedings have been held then 12 months after the day on which the indictment against the person is filed.<ref> Criminal Procedure Act 2009 (Vic) s 211.</ref> For sexual offences the equivalent time limit for commencing trial is 3 months.<ref> Criminal Procedure Act 2009 (Vic) s 212.</ref> The Victorian and ACT human rights legislation also afford a person charged with a criminal offence the minimum guarantee to be tried without reasonable delay.<ref>Human Rights Act 2004 (ACT) s 22(2)(c); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).</ref> Australia's counter-terrorism regime and immigration detention practices have been criticized on the basis that the period of detention provided for is often arbitrary, and therefore, in breach of the detainee's human rights.<ref> Law Council of Australia, website, 'Immigration Detention and Asylum Seekers' <http://www.lawcouncil.asn.au/lawcouncil/index.php/current-issues/immigration-detention-and-asylum-seekers></ref> Additionally, in certain cases, migration law may allow indefinite detention of persons seeking asylum in Australia.<ref> Al-Kateb v Godwin (2004) 219 CLR 562.</ref>

	====Freedom from punishment====		====Freedom from punishment====

Ibjadmin at 11:50, 4 November 2016

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	====Complaints procedures under the international human rights treaties====		====Complaints procedures under the international human rights treaties====
	It is possible for an individual to make a complaint to the United Nations that their rights under a treaty have been violated by Australia, provided that Australia is a party to the treaty and has agreed to be subject to the relevant complaints mechanism.<ref> http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#proceduregenerale~~; http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Complaintsmechanismsunderhumanrightstreaties.aspx.~~</ref>		It is possible for an individual to make a complaint to the United Nations that their rights under a treaty have been violated by Australia, provided that Australia is a party to the treaty and has agreed to be subject to the relevant complaints mechanism.<ref> http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#proceduregenerale</ref>

	==Rights in Prison==		==Rights in Prison==

Ibjadmin at 11:41, 4 November 2016

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	Summary offences are heard by the lower courts (for example, the Magistrates' Court in Victoria or the Local Court in New South Wales).<ref> For example, see Criminal Procedure Act 2009 (Vic) s 27, Criminal Procedure Act 1986 (NSW) s 7(1), and Justices Act 1886 (Qld) s 139.</ref> There is no provision for an accused to request a jury trial in relation to summary offences. Certain indictable offences (known as indictable offences triable summarily) can also be heard before a lower court with the consent of the accused.<ref> Criminal Procedure Act 2009 (Vic) ss 28 and 29(2).</ref>		Summary offences are heard by the lower courts (for example, the Magistrates' Court in Victoria or the Local Court in New South Wales).<ref> For example, see Criminal Procedure Act 2009 (Vic) s 27, Criminal Procedure Act 1986 (NSW) s 7(1), and Justices Act 1886 (Qld) s 139.</ref> There is no provision for an accused to request a jury trial in relation to summary offences. Certain indictable offences (known as indictable offences triable summarily) can also be heard before a lower court with the consent of the accused.<ref> Criminal Procedure Act 2009 (Vic) ss 28 and 29(2).</ref>

	The Constitution also embodies a doctrine known as the 'separation of powers'. This doctrine has the effect of keeping judicial power separate from executive and legislative power. The result is that proceedings are resolved by courts and judges who are impartial and not subject to improper controls or pressures.<ref> Attorney General's Department website, 'Fair trial and fair hearing rights:' ~~http~~://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Fairtrialandfairhearingrights.aspx.</ref>		The Constitution also embodies a doctrine known as the 'separation of powers'. This doctrine has the effect of keeping judicial power separate from executive and legislative power. The result is that proceedings are resolved by courts and judges who are impartial and not subject to improper controls or pressures.<ref> Attorney General's Department website, 'Fair trial and fair hearing rights:' https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Fairtrialandfairhearingrights.aspx</ref>

	====Right to appeal====		====Right to appeal====

Ibjadmin at 11:32, 4 November 2016

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	====Freedom from punishment====		====Freedom from punishment====
	Torture is criminalized in Australia, and acts of cruel, inhuman or degrading treatment are covered by a range of offences in existing Commonwealth, State and Territory legislation.<ref> Attorney General's website, 'Prohibition on torture and cruel, inhuman or degrading treatment or punishment': ~~http~~://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Prohibitionontortureandcruelinhumanordegradingtreatmentorpunishment.aspx.</ref>		Torture is criminalized in Australia, and acts of cruel, inhuman or degrading treatment are covered by a range of offences in existing Commonwealth, State and Territory legislation.<ref> Attorney General's website, 'Prohibition on torture and cruel, inhuman or degrading treatment or punishment': https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Prohibitionontortureandcruelinhumanordegradingtreatmentorpunishment.aspx</ref>

	====Right to counsel====		====Right to counsel====

Ibjadmin at 11:23, 4 November 2016

2016-11-04T11:23:45Z

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	The High Court is the court of ultimate appeal in Australia and has the power to review the validity of Commonwealth legislation against the Constitution. The rest of the court hierarchy is divided into two main streams: the federal court system and state court systems. Each State has its own court hierarchy, but generally, States have local or magistrates' courts, district or county courts, and a Supreme Court, which is the highest court within the State or Territory.		The High Court is the court of ultimate appeal in Australia and has the power to review the validity of Commonwealth legislation against the Constitution. The rest of the court hierarchy is divided into two main streams: the federal court system and state court systems. Each State has its own court hierarchy, but generally, States have local or magistrates' courts, district or county courts, and a Supreme Court, which is the highest court within the State or Territory.

	In Victoria, the Magistrates' Court handles about 90% of all cases that come before Victorian courts.<ref>See 'Magistrate's Court of Victoria', available at ~~<http~~://www.~~courts~~.vic.gov.au~~/courts-tribunals/victorian-courts-and-tribunals/magistrates-court-victoria>~~.</ref> In respect to criminal laws, the Magistrates' Court hears all less serious offences (known in all Australian jurisdictions as summary offences) and some more serious offences (known in all Australian jurisdictions as indictable offences) at first instance. The County Court is an intermediate trial court and has both civil and criminal jurisdictions. The County Court has jurisdiction to hear most indictable offences and is the court of first instance for numerous serious offences including drug offences, sex offences, driving offences and firearms offences.		In Victoria, the Magistrates' Court handles about 90% of all cases that come before Victorian courts.<ref>See 'Magistrate's Court of Victoria', available at https://www.magistratescourt.vic.gov.au.</ref> In respect to criminal laws, the Magistrates' Court hears all less serious offences (known in all Australian jurisdictions as summary offences) and some more serious offences (known in all Australian jurisdictions as indictable offences) at first instance. The County Court is an intermediate trial court and has both civil and criminal jurisdictions. The County Court has jurisdiction to hear most indictable offences and is the court of first instance for numerous serious offences including drug offences, sex offences, driving offences and firearms offences.

	The Supreme Court is the highest court in Victoria, and includes both a Court of Appeal and a Trial Division. The Trial Division hears the most serious criminal cases including treason, murder, attempted murder and other major criminal matters. These matters are heard before a judge and a 12-person jury. The jury is responsible for deciding the verdict of the case, and the judge must preside over the proceedings and impose the relevant penalty.		The Supreme Court is the highest court in Victoria, and includes both a Court of Appeal and a Trial Division. The Trial Division hears the most serious criminal cases including treason, murder, attempted murder and other major criminal matters. These matters are heard before a judge and a 12-person jury. The jury is responsible for deciding the verdict of the case, and the judge must preside over the proceedings and impose the relevant penalty.

IBJadmin at 15:37, 15 December 2014

2014-12-15T15:37:39Z

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IBJadmin: /* Pre-Trial Motions */

2014-12-15T14:24:14Z

Pre-Trial Motions

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	====Pre-Trial Motions====		====Pre-Trial Motions====
	''''Steps prior to initial appearance''''		'''Steps prior to initial appearance'''
	Once a proceeding has been formally commenced by charge-sheet, it will be set down for a mention hearing (generally for less serious offences) or a filing hearing (for more serious offences). At these hearings, the Court will determine whether the case should be committed for trial. If the proceeding is commenced by direct indictment, pre-trial procedures will commence (such as directions hearings).		Once a proceeding has been formally commenced by charge-sheet, it will be set down for a mention hearing (generally for less serious offences) or a filing hearing (for more serious offences). At these hearings, the Court will determine whether the case should be committed for trial. If the proceeding is commenced by direct indictment, pre-trial procedures will commence (such as directions hearings).

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	The accused must be provided with a brief containing evidence available against the accused and other information relevant to the proceeding.		The accused must be provided with a brief containing evidence available against the accused and other information relevant to the proceeding.

	''''Pleas''''		'''Pleas'''
	Prior to the initial court hearing (a mention hearing in the case of less serious offences or the committal hearing in the case of serious offences), an accused may choose whether to plead guilty (in which case sentencing will be the only issue considered by the court), or to plead not guilty (in which case, a full hand-up brief will be served and the proceedings will continue). In some circumstances, a guilty plea may not be accepted, which means that the earliest opportunity to plead guilty will be at the committal hearing.		Prior to the initial court hearing (a mention hearing in the case of less serious offences or the committal hearing in the case of serious offences), an accused may choose whether to plead guilty (in which case sentencing will be the only issue considered by the court), or to plead not guilty (in which case, a full hand-up brief will be served and the proceedings will continue). In some circumstances, a guilty plea may not be accepted, which means that the earliest opportunity to plead guilty will be at the committal hearing.

	''''Abuse of process / Stays''''		'''Abuse of process / Stays'''
	It is important to note that, if an application for an abuse of process is to be made, it should normally be made as soon as possible prior to the prosecution commencing their case. Likewise, if an application for the trial to be stayed is to be made, this should be done swiftly. In general, a permanent stay may be granted if there is a fundamental defect which goes to the root of the trial and cannot be remediated by the trial judge.		It is important to note that, if an application for an abuse of process is to be made, it should normally be made as soon as possible prior to the prosecution commencing their case. Likewise, if an application for the trial to be stayed is to be made, this should be done swiftly. In general, a permanent stay may be granted if there is a fundamental defect which goes to the root of the trial and cannot be remediated by the trial judge.

	====Preliminary Hearing ====		====Preliminary Hearing ====

IBJadmin: /* Pre-trial */

2014-12-15T14:23:34Z

Pre-trial

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	==Court Procedures==		==Court Procedures==
	===Pre-trial===		===Pre-trial===
	:====Charging Instrument====		====Charging Instrument====
	In Victoria, criminal proceedings may be commenced by:		In Victoria, criminal proceedings may be commenced by:
	:(a) filing a charge-sheet (the most common method);		:(a) filing a charge-sheet (the most common method);

IBJadmin: Created page with " == Introduction== === Quick summary of the context (including the country's recent history) === Prior to European colonization in the late eighteenth century, Australia was i..."

2014-12-15T14:21:36Z

Created page with " == Introduction== === Quick summary of the context (including the country's recent history) === Prior to European colonization in the late eighteenth century, Australia was i..."

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