For many people, the workings of the criminal justice system are foreign and unknown to them. Often clients come to our Melbourne offices having only been exposed to criminal law through TV shows and movies. This series of blog posts seeks to assist by explaining who each of the players are, and the role they play in criminal law.
The accused person is the focal point of the justice system – it exists to determine their guilt or innocence of an accused act, and if necessary, sentence that person. Due to the seriousness of having criminal allegations made against them, the accused is afforded a number of rights throughout the process. Some significant examples are the right not to answer questions from police during a record of interview and that the prosecution must fully disclosure the evidence against the accused before a hearing commences.
A person becomes an accused when the police lay charges against them. This usually occurs after conducting a record of interview with the accused person. Once someone is charged, they then have the right to plead either guilty, and admit their responsibility for the offence, or not guilty, and contest the charges. If an accused is found guilty, those offences are placed on their criminal record for life.
Where more than one person is charged in relation to the same offence, the people charged become ‘co-accused’ in the matter. Generally in Melbourne, the Courts will keep co-accused matters together.
Though many police may be involved in the arrest of an accused, the police officer who lays the actual charges against an accused is referred to as the ‘informant’. The informant is responsible for the conduct of the case, including compiling the brief of evidence against the accused. The brief of evidence contains all the material the police and prosecution are relying upon to prove their allegations that the accused committed the alleged offences.
The informant is important not only for the evidence they may give at Court, but because they are the person a defence solicitor deals with before the matter first reaches Court. When an accused has received their charges, their solicitor will write to the informant requesting a copy of the brief.
The attitudes and opinions of the informant determine or influence matters such as bail conditions, negotiating charges, the returning of an accused’s property and whether an accused is suitable for participation in the Diversion program.
The criminal defence lawyer
Once instructed by an accused, a criminal defence solicitor plays a variety of roles for the accused. Primarily, these are to advise clients with regards to their case and to appear in Court, or arrange representation, on their behalf.
In advising clients, solicitors will explain what the criminal law process is, what all of the available options are and most importantly, the strength of the evidence against an accused and the probable outcomes. Solicitors, where appropriate, will then appear on behalf of an accused at Court hearings. This means standing up before a Court and speaking to the Judge or Magistrate about the case.
In some instances, generally the more serious matters, the decision will be made to use the services of a Barrister at Court. Solicitors will then prepare the file for the Barrister and work as a team with them on the case.
Additionally, defence Solicitors act as a medium between their clients and the other parties. This is often an important role because it alleviates some of the stress experienced by an accused going through the criminal justice system.