MLL218 Study Guide - Final Guide: Hung Jury, Private Prosecution, Mercedes-Benz W191
24 May 2018
School
Department
Course
Professor
9 Machinery of Prosecution
PROSECUTION & TRIAL
Much of the activities of the pros occur before trial
o The decision to prosecute
o Made by DPP
o Little guidance in legislation
▪ CIRCUMSTANCES:
• After committal
• By way of direct indictment
• Following successful appeal by D in which conviction was
quashed and re trial ordered
• Following hung jury
• After taking over private prosecution
• Following discontinuance
• Following acquittal, new evidence emerges
o When?
▪ There is a reasonable prospect of a conviction = FORENSIC TEST and
▪ A prosecution is required in the public interest = POLICY TEST
• Public interest:
o Seriousness of offence
o Young age/mental health of alleged offender
o Age of alleged offence
o Availability of alternative to formal prosecution
o Need for deterrence
o Attitude of victim
o Reasonable chance of conviction
o What charges to lay
o What to charge?
▪ Within discretion of Vic Pol and the OPP
▪ Generally, not subject to judicial review (abuse of process)
• Cth AG power to issue guidelines and directions re how Cth
DPP should institute and conduct Cth pros
o Pre-trial negotiation, committal
o Plea bargaining was condemned in R v Marshall (1981) VR 725 as it was
deemed inappropriate for judges to be involved in such things. Australia =
charge negotiation:
▪ Pros and defence make contact outside of court to reach agreements
on issues in dispute and disclose this during pre trial procedures.
find more resources at oneclass.com
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o Negotiated justice:
▪ Charge bargaining
• An agreement between pros and defence as to the charges
that will be laid or proceeded with
▪ Plea negotiation:
• An agreement between the parties as to the charges that will
be admitted or contested
▪ May involve pros agreeing to withdraw certain charges or reducing
ertai harges i order to otai Ds agreeet to plead guilty
Likiardopoulos v The Queen (2012) HCA 37
Facts:
D and 6 others bashed & tortured V over 2 days period. ^ charged
with murder; prosecution accepted plea of guilty to lesser offences
(manslaughter) by 5 offenders, withdrew charge against 1,
proceeded with charge of murder against D. D convicted. D appealed,
inter alia, on claim of prosecutorial abuse of process i.e decision to
prosecute him, but not the 5 others, for murder was abuse of
process.
Vic Ct of Appeal: Appeal dismissed
Held:
High Ct: appeal dismissed. No evidence of unfairness, administration
of justice not brought into disrepute. While exercise of prosecutorial
discretion might amount in some circumstances to abuse of process,
did not occur here. There might be good reasons why prosecution
would proceed against some for lesser charges.
o Which court
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Dpp should institute and conduct cth pros: pre-trial negotiation, committal, plea bargaining was condemned in r v marshall (1981) vr 725 as it was deemed inappropriate for judges to be involved in such things. D and 6 others bashed & tortured v over 2 days period. ^ charged with murder; prosecution accepted plea of guilty to lesser offences (manslaughter) by 5 offenders, withdrew charge against 1, proceeded with charge of murder against d. d convicted. D appealed, inter alia, on claim of prosecutorial abuse of process i. e decision to prosecute him, but not the 5 others, for murder was abuse of process. No evidence of unfairness, administration of justice not brought into disrepute. While exercise of prosecutorial discretion might amount in some circumstances to abuse of process, did not occur here. There might be good reasons why prosecution would proceed against some for lesser charges: which court.
