Examine the criminal trial process, including pleas, court hierarchy, the use of juries, legal representation, and the role of the judge

What this dot point is asking

NESA wants you to know how a criminal trial works in NSW: where the trial is held, the parties involved, how a plea is entered, when a jury is used, the role of legal representation, and the role of the judge. Expect a 5-8 mark question in Section II.

The answer

The court hierarchy in NSW

• Local Court. Hears summary offences and conducts committal hearings for indictable offences. Magistrate alone, no jury.
• District Court. Hears most indictable matters except homicide. Judge alone or judge with jury.
• Supreme Court. Hears the most serious indictable matters (murder, attempted murder, treason). Judge with jury, or judge alone by election.
• Court of Criminal Appeal. Hears appeals from the District and Supreme Courts.
• High Court of Australia. The final court of appeal, by special leave.

Pleas and charge negotiation

A criminal trial begins with the accused entering a plea: guilty or not guilty.

A guilty plea triggers sentencing without a trial. Under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D, a guilty plea entered at the earliest opportunity attracts a 25 percent sentencing discount. The discount falls if the plea is later.

Charge negotiation (sometimes called plea bargaining) is regulated by the Director of Public Prosecutions in NSW. The DPP may agree to amend charges or drop charges in exchange for a guilty plea. This conserves court resources but is criticised when it leaves victims feeling under-served.

Jury trial

For indictable offences tried in the District or Supreme Court, the trial is by judge and jury unless both parties consent to a judge-alone trial under the Criminal Procedure Act 1986 (NSW) s 132.

• Composition. 12 jurors (s 19 of the Jury Act 1977 (NSW)).
• Selection. Random from the jury roll, with peremptory challenges and challenges for cause.
• Verdict. Unanimous, or majority of 11 to 1 after 8 hours of deliberation (s 55F of the Jury Act 1977 (NSW)).

Legal representation

The right to legal representation is foundational. Dietrich v The Queen (1992) 177 CLR 292 held that, while there is no absolute right to publicly-funded counsel, a trial for a serious offence may be stayed where the accused is unrepresented through no fault of their own and would be denied a fair trial.

Legal Aid NSW provides representation subject to a means test. The shortfall in legal aid funding is one of the most enduring access-to-justice problems flagged by the Law Council of Australia in successive reports.

Role of the judge

The judge:

• decides questions of law (admissibility of evidence, directions to the jury);
• ensures the trial is conducted fairly (the right to a fair trial is a fundamental common-law principle, reinforced by article 14 of the International Covenant on Civil and Political Rights 1966);
• directs the jury on the law before deliberations (model directions are provided by the Judicial Commission of NSW Bench Book);
• imposes the sentence on a guilty verdict.

Role of the prosecution and defence

The prosecution (the Crown, conducted by the Office of the Director of Public Prosecutions (NSW)) bears the burden of proving the offence beyond reasonable doubt. The defence tests the prosecution case and may call its own evidence.