The basis of the criminal law in Queensland is that the prosecution must prove its case 'beyond reasonable doubt'. An accused person is presumed to be innocent and can therefore elect not to give evidence, but simply argue that the prosecution case alone is insufficient to prove his or her guilt.
If a matter proceeds to trial in the District or Supreme Court, the trial formally commences when the accused person is 'arraigned'. This unusual word simply refers to the procedure whereby the judge (or his associate) reads out the charges to the accused person and asks whether he or she pleads 'guilty'or 'not guilty'.
If a 'not guilty' plea is entered, a jury will then be 'empanelled'or chosen. The jury is a group of twelve people selected from a larger panel of persons who have been chosen from the electoral roll to represent society at large.
The duty of a jury is to determine whether an accused person is guilty or not guilty in a criminal matter. Both the prosecutor and the defence have the right to challenge a certain number of prospective jurors before they are empanelled onto the jury.
After the jury is empanelled, the prosecution "opens" its case with a brief outline of the evidence intended to be called for the prosecution (or'Crown'). The prosecution will then call each of its witnesses, one at a time. Each witness is questioned first by the prosecution, then cross-examined by the defence, and then if need be, re-examined by the prosecution.
At the close of the crown case, the accused is asked whether he or she intends to give evidence, or call other witnesses. There is no obligation on an accused person at a trial to give or call any evidence. If the accused does elect to give or call evidence, the accused or his or her lawyer will then make an opening address to the jury, and then call each defence witness in turn.Defence witnesses will be questioned first by the defence lawyer, then cross-examined by the prosecutor, and then if need be re-examined by the defence lawyer.
At the conclusion of the defence case, both sides are entitled to address the jury. If the accused has called or given evidence, the defence barrister must address the jury first. If the accused has elected not to give or call evidence,then the prosecution must address the jury first. Right to last address is perceived by lawyers as an advantage and so a defendant has to also take this factor into account as part of the overall trial strategy.
In a trial, the judge decides issues of law, such as the admissibility and relevance of particular evidence. The jury has to decide all issues of fact.
At the conclusion of the addresses to the jury by the opposing lawyers, the judge then 'sums up' to the jury, advising them on the appropriate law to apply to the facts of the case. After the judge has completed his summing up,the jury then retires to deliberate. This can take minutes or many hours, even days. The jury's verdict, whether it be guilty or not guilty, must be unanimous. There are no compromise or majority verdicts available in Queensland.
If the jury returns a verdict of not guilty, the accused is discharged and allowed to go free. If found guilty by the jury, the judge then commences sentencing proceedings. The jury play no part in the sentencing process.
Sentencing proceedings occur in a court when an accused person pleads guilty,or after an accused person is found guilty following a hearing (in the Magistrates Court) or trial (in a higher court).
Imposing a sentence or punishment for a proven offence is always a matter for the presiding magistrate or judge alone.
In sentencing an offender, the magistrate/judge has to balance the competing interests of society's need for protection and deterrence of criminal acts on the one hand, against the prospect of rehabilitating the offender on the other.It is not the case therefore that a magistrate or judge simply imposes the harshest sentence allowed.
The magistrate or judge must consider the personal circumstances of the offender, the reasons why the offence was committed, and the rehabilitation prospects of the offender. For this reason two people who commit very similar offences may get significantly different sentences.
Magistrates and judges have a wide variety of sentencing options open to them, and these are listed below.
An offender can be ordered to pay a fine as punishment for the offending behaviour. The fine can be anywhere from a few dollars through to many thousands of dollars. Often the offender will be given time to pay the fine, so that it can be paid for example by instalments. If the offender can't pay the fine,then he or she can apply to have it converted to unpaid community service. If no such application is made, and the fine is not paid, then the offender can be jailed in default of payment.
Good Behaviour Bond
A court can place an offender on a good behaviour bond, which is a written promise by the offender to be of good behaviour and not break the law for a specified period.
The effect of the bond is that if the offender commits a further offence during the period of bond, the offender may be liable to pay a sum of money for breaching the bond, and may also be dealt with more heavily for the new offence because it was committed whilst the offender was on a bond. Bonds are usually only imposed for offences at the less serious end of the scale.
Probation is a system of government monitoring and supervision. Probation orders are normally served by way of regular visits by an offender to a correctional officer, who will monitor the progress and rehabilitation of the offender. The duration of the order can be six (6) months through to three (3)years.
Probation is most commonly imposed on offenders who are thought to require some type of guidance, treatment or rehabilitation. A probation order allows the court to sentence an offender in a way in which the offender is likely to obtain treatment for problems such as drug addiction and gambling problems. It is more commonly imposed on younger people than older people.
There are a number of conditions which attach to a probation order, such as a prohibition upon committing another offence, mandatory participation in programs or counselling as required, a prohibition upon leaving the state without permission, and an obligation to notify the correctional officer of any change of address or employment. A probation order can only be imposed if the offender consents to such an order being made.
Community service is similar in nature to a probation order, but rather than monitoring and supervision, the offender is required to perform unpaid work in the community. An offender can be ordered to perform anywhere from 40 - 240 hours of unpaid work, which normally must be completed within 1 year. As with probation, an offender can only be sentenced to community service if he or she consents to such an order being made.
Intensive Correction Orders
Intensive correction orders are seen as periods of imprisonment which are served in the community. Under an intensive correction order, an offender is subject to conditions similar to both community service and probation and is also required to participate in and complete programmes recommended by the relevant community corrections officer, including programmes which require a participant to reside at a particular facility for up to seven (7) days at a time.
For example, an alcohol or drug detoxification programme may require some periods of living‑in at a particular centre. An intensive correction order is really seen as a last sentencing resort for a person requiring significant rehabilitation treatment in an effort to avoid an actual jail term.
Imprisonment (Suspended or Served)
Courts can impose custodial terms upon offenders for serious offences. Where jail is imposed on an offender, he or she is immediately taken away and kept in custody. As a rule, adults are eligible for parole (supervised release) after they have served 50 percent of their sentence.
However, if their offence is classified as a 'serious violent offence'then they must serve 80 percent of their sentence before being eligible for parole.
For offences which are not serious violent offences, judges can also recommend (rather than order) that an offender serve less than 50 percent of their sentence.
Another option open to a court is to suspend, partially or totally, the operation of a jail term on an offender. This means that a magistrate or judge can sentence an offender to jail, then immediately suspend the operation of the order so that the offender does not actually go to jail.
The offender must then be of good behaviour for the operational period of the order (up to five (5) years). If during that time the offender commits a further offence, then the offender almost invariably will serve the full length of the jail term that was previously suspended.
Similarly a magistrate or judge can order that a jail term be suspended after the offender has served a short part of the jail term. The offender is then released, but if the offender commits another offence during the operational period of the order, he or she will be returned to jail to serve the balance of the original prison term.
In sentencing offenders, magistrates and judges also have the ability to order an offender to pay restitution or compensation. Compensation is a monetary order against the offender to reimburse a victim for personal injury.
Restitution is a monetary order against an offender to reimburse the victim for any property damage or financial loss suffered by the offender as a result of the commission of the offence. Such orders can be imposed in combination with any of the sentencing options mentioned above.
Convictions and Criminal Histories
In sentencing offenders the judicial officer also has to determine whether or not to record a conviction against an offender. Recording a conviction means that an offender obtains a criminal record for the offence for which they have pleaded guilty or been found guilty.
If no conviction is recorded, then for public purposes the offender does not have a criminal history in relation to that matter.
For some sentences, such as certain bonds, the magistrate or judge cannot record a conviction.
For the majority of sentencing options, such as fines, community service and probation, there is a discretion available as to whether or not to record a conviction.
For the most serious of sentencing options, such as jail and intensive correction orders, a conviction must be recorded.
As mentioned earlier, the avenues of appeal open to a person convicted of a crime and then sentenced will depend on the court in which the matter was heard.Appeals must be lodged very promptly after the decision to which they relate is made. You should ensure that you get prompt legal advice if you are considering an appeal from a finding of guilt or a sentence imposed upon you.
In many instances in criminal law the relevant appeal period is less than one(1) month, and if an appeal is not lodged within the appropriate time, then the person is prohibited from appealing the decision against them.
For most matters that are determined in the Magistrates Court, a right of appeal lies to the District Court. The appeal is then heard by a District Court judge sitting alone.
For matters determined in the District Court or Supreme Court, the relevant appeal lies to the Queensland Court of Appeal. The Court of Appeal is usually comprised of a panel 'bench' of three judges who hear the case. There are no juries involved in appeals.
Appeals are often heard some months after the decision being appealed against is made. If the person who is appealing is in custody, it is sometimes possible to obtain bail whilst the appeal is pending, although this is not common.
As a general rule a convicted person can appeal against both findings of guilt (if the plea was not guilty) and the harshness of the sentence imposed.The Crown on the other hand are unable to appeal a jury's verdict of not guilty, but can appeal against the leniency of a sentence imposed upon an offender.
It is important to note that most appeals are not conducted on the basis of a rehearing of the original case. Rather, they merely focus on whether an identifiable error or mistake was made during the original hearing or trial and which has caused great unfairness to the accused person, or which has caused the sentence imposed to be either manifestly excessive or inadequate.
After hearing an appeal against conviction, the Court of Appeal has power to dismiss the appeal, or uphold the appeal and order a new trial, or simply quash the conviction altogether. After an appeal against sentence, the court has the power to substitute a sentence which it considers to be a legally proper sentence if the sentence imposed was manifestly excessive or lenient.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
If you want further information, we recommend contacting the law firm of Ryan& Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.