Civil and Criminal Procedure

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LAWS 1014

Criminal Procedure Exam

Table of Contents

Introduction to Criminal Procedure – Crime and Society4
Crime4
Criminal law4
Sources of criminal law in Australia4
Justice4
Procedural law5
Substantive law5
General criminal procedure5
Current trend towards criminal procedure5
Crime and history6
Crime and society6
Problems with criminal procedure7
Reforms to criminal procedure8
Context for making criminal procedures9
Indigenous people and Australian criminal procedure9
Ethnic minorities and Australian criminal procedure9
Application of racial vilification laws9

Stages of Criminal Justice10
Process of criminal justice10
Criminal justice system10
Stages of criminal justice11
Determination of criminal liability12
Operation of criminal justice in practice12
Hierarchy of the criminal courts12
Fair trial14
Reality of discrimination14

Police Discretion: Gatekeepers of the Criminal Justice System16 Role of police discretion16
Legislated police powers16
Stereotyping and its influence17
Key to the process of diversion17
‘Stop and Search’17
Central role of police in constructing prosecution case18
Discretionary nature of police powers18
Key decision sites18
Problems of accountability and good governance18
Arrest, detention and investigation powers19
Attempts to restrict judicial discretion have changed the face of sentencing and punishment in NSW22 LAW relating to police powers - prior to criminal investigation prior to criminal trial23 Significance of the political context in relation to the rules governing police powers and their recent form25 Various law reform proposals25

Pre-trial Criminal Investigation and the Decision to Prosecute26 What precedes the decision to prosecute?26
Practice of charge and plea bargaining26
“no bills” and “stays or prosecution”27
Disclosure obligations27
Law reform on committals28
Unfair inducements to plead29
Possible defences to crimes29
Non-police investigation agencies/ special powers29

Resolving Responsibility without Litigation31
Alternative Dispute Resolution31
Police Cautions and Infringement Notices31
Workings of Protective Orders32
Restorative Justice33
Circle Sentencing and Indigenous Justice Alternatives34

Bail36
What is bail?36
Types of bail36
Legislative framework for bail36
Recent legislative change on the underlying principles of bail38 Development of restrictions on accessing bail as of “right”39 Submissions in a bail application39

Trials and Appeals40
The hierarchy of criminal courts40
Structure and volume of work of criminal courts40
Process through criminal justice system40
Rules of evidence41
The driver for efficiency41
Grounds and processes of appeal41
Summary vs indictable court processes42
Criminal court system in practice not media43
Indicia of “fair trial”43

Sentencing and Punishment44
Justifications given for punishment44
Sentencing principles used by judges44
Sentencing legislation in NSW45
Connection between “law and order politics”46
Judicial discretion in sentencing48
Judicial Measures49
Sentencing alternatives50
Preventive detention51

Introduction to Criminal Procedure – Crime and Society

Crime

• Crime is defined by institutional and procedural responses (such as prosecution, trial and penalty) to a particular prohibited behaviour.

• Crime and the individual: crime as illness, born criminal, learning crime etc.

• Crime in Australia: crime is about people and places – certain environments will stimulate crime. Communities have opposing views on crime.

• Violation of morality as well as the law (Findlay – 6)

Criminal law

• Framework of rules and procedures designed to control social interaction through the prevention and punishment of criminal...
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