There can be more than one cause of the injury suffered by the victim. Where appropriate the jury should be directed to consider whether there is any act of the victim that broke the chain of causation between the act of the accused and the injury inflicted upon the victim: McAuliffe v The Queen CLR In such cases the question is whether the act of the deceased broke the chain of causation by responding to the threat posed by the accused in an unreasonable or irrational manner.
The suggested direction has been framed accordingly. This is a question of fact for you to decide. Today's Stories. Subscribe Get The New Daily free every morning and evening.
There was an error submitting the form. Please try again. First Name this. Last Name this. Email Address this. Gender Female Male Other Required. You look at it as part of a series of events that took place, both before and after the act causing the death of the deceased occurred.
I will explain the first two states of mind — an intention to kill or inflict grievous bodily harm — together since they are related. Grievous bodily harm is simply bodily injury of a really serious kind. This type of injury does not have to be permanent or even life threatening. You decide what sort of injury would be described as being really serious because that is an issue of fact for you.
Intent and intention are very familiar words. In the legal context in which we are considering them, they carry their ordinary everyday meaning. The third state of mind, which the Crown relies upon to prove murder, is known in legal terms as reckless indifference to human life. If [ the accused ] did come to that realisation, but decided to go on and commit the act regardless of the likelihood of death resulting, and if death does in fact result, then [ the accused ] is guilty of murder.
The conduct of a person who does an act that the person knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who commits an act with a specific intention to cause death. Section 18 1 a provides that murder is committed where the act causing death was done in an attempt to commit, or during or immediately after the commission, of a crime punishable by imprisonment for 25 years.
The act causing death should be identified by the Crown and the judge should direct the jury accordingly. This may, in an appropriate case, require the jury to determine whether there was a voluntary act of the accused, for example where the accused asserts that the discharge of the weapon was an accident, see Voluntary act of the accused at [ ]ff. In this regard there is a distinction between a voluntary act and an intentional one.
Unless otherwise stated the section numbers below refer to the provisions of the C riminal Procedure Act. Paragraph references are to sections of the Bench Book. In the usual case the accused is committed for trial to the relevant trial court after a case conference certificate is filed or, if a case conference is not required to be held because the accused is unrepresented or a question of fitness to be tried has been raised s 93 1 after a charge certificate is filed: s 95 1.
The indictment is to be presented to the trial court within a specified time after committal: s and District Court Rules Pt The trial court can make directions and orders even where the indictment has not been presented: s 4. However, the indictment can include multiple charges and multiple accused. The DPP may present an ex officio indictment where the magistrate does not commit an accused for trial, where the charge in the indictment is different to the committal charge or even where there have been no committal proceedings: s 8 2.
This is not a matter that will generally affect the course of the trial. Generally it is sufficient if the charge in the indictment is set out in terms of the provision creating the offence: s However, there is a common law requirement for particulars as to the place, time and manner of the commission of the offence to be included, see generally Criminal Practice and Procedure NSW [2-s The indictment can be amended at any time with leave of the court or the consent of the accused: s The amendment can include the addition of further charges.
Before trial the amendment can occur by the substitution of another indictment for that filed: s 20 3 , see Criminal Practice and Procedure NSW [2-s An arraignment occurs when the charge in the indictment is read to the accused who is asked to plead to the charge. The accused should enter the plea personally. The accused may be represented by a legal practitioner or appear self-represented: s It is rare to permit a person other than a legal practitioner to play an active role in the trial.
Generally the accused is placed in the dock, but may be permitted to remain outside the dock, particularly where self-represented: s It is not prejudicial to require an accused to sit in the dock: R v Dirani No 7 at [56]; R v Stephen at [13]. The dock is the traditional symbol of what is at stake in a criminal trial and is a means of impressing on the community, and the jury, the gravity of the proceedings: R v Dirani No 7 at [32]; R v Stephen No 2 at [11].
If there is more than one charge, the accused is asked to plead to each individually as each charge is read out. Where there are multiple accused they can be arraigned on different occasions. Where multiple accused are before the court, they can be arraigned individually or together depending upon what course is more convenient having regard to the nature of the charges.
There are a number of special pleas that can be made to the indictment. These are rare but include a plea of autrefois: s Such a plea is determined by a judge alone. The accused may plead not guilty to the charge stated in the indictment but plead guilty to an offence, not set out in the indictment, but included in the charge: eg plea of guilty to offence of robbery on charge of armed robbery. The Crown may accept the plea in discharge of the indictment or refuse to do so: s If the Crown does not accept the plea, it is taken to have been withdrawn.
If the accused pleads not guilty to the primary charge but guilty to an alternative count on the indictment and that plea is not accepted by the Crown in discharge of the indictment, the plea to the alternative count remains but the accused is placed in charge of the jury on the primary charge only, see Criminal Practice and Procedure NSW at [2-s Section provides that, where the accused has been arraigned, the trial court may make orders for the conduct of the trial before the jury is empanelled.
Chapter 3, Pt 3, Div 3 of the Act makes provision for the court to order pre-trial hearings, pre-trial conferences and further pre-trial disclosure.
The purpose of these provisions is to reduce delay in the proceedings. It is for the court to determine which if any of those measures are suitable: s 2. The accused is required to give notice of alibi s and evidence of substantial mental impairment s It is suggested that before the date of the trial the judge ask the defence whether there is a challenge to the admissibility of evidence in the Crown case and request the parties to define the issues to be placed before the jury.
In particular the judge should identify whether evidence challenged will substantially weaken the Crown case and, therefore, may engage s 5F 3A Criminal Appeal Act if the ruling is made against the Crown. Any such ruling should be made before the jury is empanelled in case the Crown appeals the ruling.
Before embarking upon any pre-trial application the trial judge should ensure the accused has been arraigned.
As to other statutory provisions empowering non-publication or suppression, or self-executing prohibition of publication provisions, see [ ]ff. Any orders made by the court before a jury is empanelled are taken to be part of the trial: s 2. Pre-trial orders made by a judge in proceedings on indictment are binding on a trial judge unless it would not be in the interests of justice: s A.
Section A orders extend to a ruling given on the admissibility of evidence: s A 5 inserted by the Statute Law Miscellaneous Provisions Act No 2 Section I Criminal Procedure Act provides for the admission of evidence of a complainant in new trial proceedings.
Section I 5 is directed to the position after specific questions of admissibility, determined under the Evidence Act , have been addressed and permits the court to have regard to the effect of any edits to the record of evidence: Pasoski v R [] NSWCCA at [29]. In sexual assault trials, there are special provisions associated with the production, and admissibility, of counselling communications involving alleged victims of sexual assault.
As a general rule, a person in possession of such material cannot be compelled to produce it in trials, sentence proceedings, committal proceedings or proceedings relating to bail: ss , The relevant definitions are found in ss and See further [ ] Sexual assault communications privilege. If the accused is self-represented, the judge is obliged to explain the trial process to the accused before the jury is empanelled.
See generally [ ]ff and [ ]. Any interpreter who is present to assist the accused need not be sworn. The interpreter should be placed so that he or she may communicate with the accused. Generally all proceedings in connection with a criminal trial should be heard in open court.
There are statutory provisions restricting publication of evidence, for example where children are involved either as an accused or a witness. The court also has power to have a witness referred to by a pseudonym. There are provisions relating to witnesses giving evidence by alternative means, as to which see below. A jury panel is summoned by the sheriff and brought into court when required. Practice varies as to whether the judge is on the Bench when the panel is brought into court.
The judge can determine whether to excuse any person in the panel: s 38 Jury Act. The judge can determine to have the prospective juror make the application in person after the panel is brought into court. It is suggested that the trial judge inquire of the panel whether any person wishes to be excused for some reason, even though an application may have been refused by the sheriff, based on any matter raised with counsel or otherwise. For example, the jury should be informed that the proceedings will be in English, the sitting times of the court and the need for attendance every day.
It is a matter for the judge whether the prospective juror should be sworn or not when seeking to be excused. It is possible to challenge the array before empanelment but this is very rarely done: s 41 Jury Act.
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