Players in the Criminal Justice System – Part 2

The barrister

Barristers are individuals who, after becoming qualified lawyers, have completed additional training and exams to ‘go to the bar’. They do not work for a particular law firm, rather they operate by themselves and are briefed by solicitors to advocate on behalf of clients. Like solicitors, barristers will often specialise in particular areas.

Some exceptional barristers become ‘Queen’s Counsel’ or ‘Senior Counsel’ (QC or SC), otherwise known as ‘Silks’. These barristers represent the pinnacle of the profession and are recognised by their peers as possessing the finest advocacy skills and largest contributions to the law and justice system.

Though barristers can be briefed for smaller hearings, they are predominately used in serious matters such as trials or contested hearings in the Magistrates’ Court.

The prosecutor

As offences are considered in the eyes of the law to have been committed against the State, rather than the victim themselves, the role of the prosecutor is to represent the community in criminal proceedings.

Prosecutors appear at Court and present the evidence collected by the informant and police. Importantly, the prosecutor must act in an independent and unbiased manner in presenting their case.

Generally the prosecutor in the Melbourne Magistrates’ Court is a police officer. In the County and Supreme Courts, they are a solicitor from the Office of Public Prosecutions. OPP solicitors usually brief barristers to prosecute the cases.

Often there will be discussions between the defence solicitor and the prosecutor about particular aspects of an accused’s case, and whether they are pleading guilty or not guilty. If the accused is pleading guilty, then negotiations are undertaken  to decide the appropriate charges the accused should plead guilty to. The prosecutor will also correspond with the informant and any prosecution witness during the court process.

The Magistrate or Judge

The Magistrate will hear matters in the Melbourne Magistrates’ Court and Judges hear matters in the County and Supreme Courts. Their role is to direct matters procedurally, hear cases put before the Court by the prosecution and defence, and in the Magistrates’ Court, determine whether a case can be proven beyond a reasonable doubt. In the County and Supreme Courts, the finding of facts is generally undertaken by a jury. Where appropriate, a Magistrate or Judge will impose sentences.

In sentencing an accused, Magistrates and Judges weigh up the aggravating factors (put by prosecution) against the mitigating factors (put by the defence) and apply the relevant legislation and sentencing principles to come to a sentence.

In some circumstances, Magistrates or Judges must impose mandatory minimum sentences, such as in drink driving cases.

The jury

Where charges against an accused are to be determined in the County or Supreme Court, the trial is heard in front of a jury. A jury of 12 people are selected from a larger pool of the accused’s peers at the commencement of a trial. As the names of persons to be on the jury are read out during selection, the accused has 6 opportunities to ‘challenge’ a juror, meaning that person will not sit on the jury.

Once the 12 members have been selected, the jury sit through the trial, hearing the evidence put before the Court. After conclusion of the giving of evidence and the Judge has directed the jury as to the law, the jury retire to deliberate whether or not they find the accused guilty or not guilty of the alleged offences. To deliver a verdict, the jury must consist of at least 11 members for most offences. Further, for most state offences, a jury can return a ‘majority verdict’ in which 11 out of 12, or 10 out of 11 members agree on a verdict. In coming to a verdict, members of the jury must apply the test used in criminal law, which is to be satisfied of a particular fact or element ‘beyond a reasonable doubt’.

Tom Isaacs

Tom Isaacs

Bachelor of Laws with Honours - LLB(Hons)

Tom has been part of the firm for the past 10 years, working initially as a law clerk and now as a fully qualified Solicitor. He completed his Bachelor of Laws with Honours at Deakin University, and undertook his legal training at the Leo Cussen Insititute where he was president of his class. Tom appears regularly at Magistrates' Courts, both metropolitan and in regional Victoria.