CRIMINAL LAW NSW
The criminal justice system is designed to protect members of the community and their property. It is also designed to deal appropriately with people who do not obey the law.
The main role of the criminal justice system is to determine whether a person’s actions or behaviour form a criminal offence and deserve to be punished. It is the obligation of the State to protect its citizens against any harm upon their persons and property. With that, the State, through its legislative department, defined the acts which constitute a criminal offence and provide punishment for it.
The criminal justice system is divided into three separate sections. These include the investigative process, which involves investigations by State or Federal Police; the adjudicative process, where a case is taken before the courts to be heard and a penalty is imposed; and the correctional stage, where an offender completes a term of community service or serves his or her sentence in prison or some other correctional system.
The investigative process is a stage where the State or Federal Police determines whether there is a probable cause to indict a person for his particular act. If a probable cause is present, the State will file a case with the proper court. If it does not find probable cause, the case will be dismissed at this stage.
The adjudicative process is the determination by the court on the merits of the criminal case. Both parties, the prosecution and the accused, will be given opportunity to present its respective cases.
The NSW Police Prosecutor or the Director of Public Prosecutions, as the case may be, will present evidence to prove the guilt of the accused beyond reasonable doubt. On the other hand, the accused will also be given an opportunity to present evidence for his defence. After both parties presented their respective evidence, the case will be submitted for decision. The court will now issue a decision whether or not the accused is guilty beyond reasonable doubt on the charge filed against him. An appropriate penalty will then be imposed.
In correctional stage, if the accused is found guilty of the offence charged, he will suffer the consequences of his criminal act. Depending on the nature of the offence, he may ask to pay a bond or suffer imprisonment.
Who represents defendants in criminal matters?
A defendant may be unrepresented.
- Legal Aid Solicitor – employed by Legal Aid NSW or a Solicitor appearing on a Grant of Legal Aid (sometimes referred to as the Duty Solicitor).
- A Solicitor in Private Practice – funded by the defendant or appearing Pro Bono.
- A Barrister – may be briefed by the Solicitor or directly by the client. Barristers wear wigs and gowns in higher courts will wear ordinary attire in Local or Children's Court.
- Public Defender – is a Barrister employed by the NSW Government and appears mainly in Legal Aid matters.
- A Senior Counsel or Queen's Counsel – is a very experienced Barrister who mainly appears in Supreme Court and Appellate matters. Wears a longer wig. Some Public Defenders are Senior Counsel / Queen's Counsel. (Legal Aid NSW, Overview of NSW Criminal Justice System and Diversion Programs, July 2012)
Basic principles in the criminal justice system
Presumption of Innocence
A person against whom a criminal offence is filed in court enjoys this presumption. This is a fundamental right accorded to the accused in all criminal prosecutions. He is presumed innocent until his guilt is established beyond reasonable doubt. Otherwise, a false charge against a person would be an expedient ploy to put a man in jail without the necessity of proving the case.
Proof beyond a reasonable doubt
The quantum of evidence necessary to convict the accused is proof beyond reasonable doubt. It means that the evidence presented by the prosecution produces to the mind of the court a moral certainty that the person charged committed the crime. Any doubt as to the guilt of the accused will necessarily result in his acquittal.
A person who has been previously acquitted in a case can no longer be prosecuted under the same case. This is to ensure that a person already acquitted will be free from perpetual harassment by either the adverse party or the State. A person cannot be put twice into the same jeopardy involving the same act.
This section of the website contains some of the many legal articles covering all manner of criminal offences, 'white collar' offences and traffic offences in NSW. Other offences that are not listed in this section can be discussed with your criminal lawyer.
In New South Wales, criminal offences are based on the common law and some statutory provisions in the Crimes Act 1900 (NSW). The Crimes Act covers a range of offences relating to violence, sex offences, property, fraud, arson, corruption, breaches of the peace and others. It also contains procedural rules and practices.
Further offences are contained in other pieces of legislation, for example, the Weapons Prohibition Act 1988, Fire Arms Act 1996, Drugs Misuse and Trafficking Act 1985, Road Transport Act 2013, Bail Act 2013, and the Crimes (Domestic and Personal Violence )ACT 2007.
Also, a great number of other legislative enactments create criminal offences for specific offences or serious breaches of statutory duties. Some examples include the Fair Trading Act 1987, Corporations Act (C’th), Occupational Health and Safety Act 2000, and the Casino Control Act 1992.