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This subject aims to teach Australian criminal procedure in depth. Successful students will understand the Australian criminal process, from investigation through charge, pre-trial, plea, appeal and ancillary phases. Students will be familiar with the key legislation and with the major cases applicable. The subject is directly relevant to criminal practice Australia-wide, and has additional relevance to practice in public law.
The subject also engages with the laws and policies which shape criminal procedure as applied in court.
- First, recent Victorian legislation impacts directly: students will study the application and effect of the Criminal Procedure Act 2008 and the Jury Directions Act 2013.
- Secondly, recent High Court authority impacts directly: students will consider the effect of Lee v The Queen  HCA 20 and X7  248 CLR 92, the ‘public law’ quality of criminal procedure, and the development of the ‘principle of legality’.
- Thirdly, international human rights norms impact: students will consider international materials (the ICCPR, selected ICTY and ICC decisions and materials, and selected cases from national courts outside Australia) and understand how these notions can apply in practice in Australia.
Principal topics include:
- Fundamental concepts: the criminal process, the principle of legality, the relevance of human rights to the process, the notion of a fair trial
- Investigation: jurisdiction, warrants and coercive orders.
- Charge and Indictment
- Pre-trial management: media, bail, victim and witnesses, asset freezing
- Disclosure of the case and the evidence
- The trial process
- Sentencing hearings
- Appeals, review and clemency.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the elements and rules of Criminal Procedure, and its principles and sources, including recent and relevant legislative, common law and international developments
- Be able to critically examine, analyse, interpret and assess the effectiveness of these legal rules
- Be an engaged participant in debate regarding contemporary issues, including the application of privilege, the right to silence and its limits, disclosure obligations of prosecutors, defendants and third parties, open justice, trial management under the Jury Directions Act 2013 and the dictates of the accusatorial system
- Have a sophisticated appreciation of the issues relevant to recent and current parliamentary reform of the criminal process
- Have an advanced understanding of the practical effects of the current elements of procedure in real proceedings
- Have a detailed understanding of the international and human rights influences upon criminal procedure, now and in future
- Have the cognitive and technical skills to generate critical and creative ideas relating to the development of criminal procedure in all its phases, and to critically evaluate existing legislation and current law reform proposals
- Have the cognitive and technical skills to independently examine, research and analyse all aspects of the criminal process
- Have the communication skills to clearly articulate and convey complex information regarding the criminal process both to specialist and non-specialist audiences
- Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field.
Last updated: 29 July 2022