| General intro | Accused is generally “typically male, under 30, of low intelligence or education or both ,poor, addicted to or heavy user of alcohol or illegal drug” – temby QC. [1241]. Criminal trial and accused Accused has pivotal role in case – ie sits in central position. But doesn’t mean that accused exercises authority or control in trial. First way – accused’s opportunity to speak in trial to testify is as first witness called for defence. If speak out of turn, then cannot be ‘heard’ by the court. -
Evidence must be adduced in the required way: Iliev Eg here – during prosecution’s final address to jury iliev while in dock uttered incriminating words and raised left arm consistent with machismo type gesture. Trial judge referred to it and expressed view that incident was so damning that it would lead inevitably to a verdict of guilty. Left it to jury to give whatever significance they saw fit. New trial ordered by NSWCCA. Reasoning: (1) the incident had little probative value but was highly prejudicial and should not have been before jury as matter which they could take into account (2) Judge should have sent jury out, ask crown whether wished to place evidence before court, if crown called evidenece accused would be entitlted to be heard and given evidence Accused may remain silent (discussed 24.74) Accused has right to respond to prosecution case and to test the prosecution case and that of any co-accused Accused may lead evidence of good character. (CL being as matter of tradition rather than logic wiling to not consider whether the evidence is actually relevant). (note can be a double edged sword. Scope for prosecution to respond to this evidence). Fundamental notions of a fair trial: Establishes procedural requirements and other common law fundamentals: presumption of innocence and criminal burden of proof: Eastman. -
Philosophical stance regarding accused’s position in criminal trial considered in Eastman:‘legal system is prepared to tolerate practical possibility that some persons who are guilty are acquitted, but not that persons who are innocent should be convicted.” Essential function of criminal trial is to minise risk that innocenent persons will be convicted. Ensures that prosecution case taken as a whole consists of potentially reliable evidenc presented in an unprejudicial manner. Means: “independent judiciary, independent jury, ethcalcode binding prosecution reflected in rules of law, burden and standard of proof, applicable rules of evidence, rule preventing accused person from being tried unless fit to plead. ‘Fitness to plead’: meansincapable of understanding what charged with, incapable of pleading to charge, or exercising rights of jury challenge, or understanding that trial was inquiry into what he did what he was charged with, or following course of proceedings, or understanding effect of evidence against him, or deciding what defence to rely on, or instructing legal representatives, or a combination of these things. If unfit to plead – no adequate testing of crown case, no adequate process of objection to inadmissible crown evidence, no adequate process of preventing erroneous rulings by trial judge, no proper attention given to defence answer to crown case, no proper development of defence submissions Accusatorial v Adversarial – bits of both The criminal trial is accusatorial as there are obligations on prosecution but no obligations on defence to prove anything: Dyers (Gaudron, Hayne, Kirby JJ). When accused doesn’t given evidence, prosecution is put to proof, and it is important that the reasoning appropriate to adversarial civil trials doesn’t undermine the accusatorial elements of a criminal trial. Adversarial...
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