Video transcript – Criminal case scenario part one

Screen title: Criminal trial, Episode 1

Screen title: Judge Hannan, Head of the Criminal Division

Her Honour Judge Hannan: This is about a 22 year old young man who is driving in a suburban backstreet in circumstances where he has his mobile phone in his hand. When he approached the roundabout a woman was riding a bicycle, and she entered the roundabout. It seems to be common ground that she entered it at a significant speed for a bike rider. And a collision occurred. The prosecution allegation is that his speed was excessive in the circumstances. Because he was approaching a roundabout, he should have slowed, which he did not do. Unfortunately the young man's vehicle clipped the rear wheel of the bike. She was thrown from her bike. And unfortunately collided with another car and was killed.

Screen title: Solicitor’s office

Screen title: James Dowsley, Solicitor

James Dowsley: The solicitor's role is very intense and acute at the commencement of any case. And that can happen at any time of the day when you get a call and somebody's in a police station and needs advice about what to say to the police in a record of interview. And that's actually one of the hardest tasks I think of a solicitor, to get instructions from the client when they're under pressure in police interview.

Defence solicitor: My advice to you at this stage is not to answer any questions.

James Dowsley: And working out with scant information at that time available to you what's the best course of action. Whether they should make no comment or whether they should answer questions. Those decisions have to be made, and made pretty quickly. And thereafter you'll see the client. You'll get the charges, you get the brief of evidence from the police, and you'll start having conferences with the client along a process towards what's called a committal hearing, which is the first stage of cross examination of witnesses. And that's when we involve barristers in the lead up to the committal hearing.

Screen title: Sarah Keating, Barrister

Sarah Keating: The cab rank principle applies. And effectively that says, if it's within your area of expertise and you're available to take it and you have been briefed, then you're obliged to take the brief. Which is important, because otherwise there are people who are unpopular or whose cases are seen as difficult, or reputationally perhaps ones that you don't necessarily want to take. But you must, because it makes sure that the system works fairly and that everybody continues to have access to representation.

Defence barrister: Your Honour, our next witness's evidence has been pre-recorded and it goes for--

James Dowsley: In the absence of having a lawyer, you have to represent yourself. And that would be, in my view, very unfair to have the state, a prosecutor who's trained in the law, facing a person who's untrained in the law having to represent themselves. So that process or that right of having representation is fundamental.

Screen title: Prosecutor

Prosecution barrister: He's admitted to looking at his mobile phone while driving. You cannot look at your mobile phone and the road at the same time. And you've just heard expert evidence that looking at your mobile phone can cause a significant distraction.

Screen title: Fran Dalziel, Crown Prosecutor

Fran Dalziel: One of the most important things that a prosecutor must be is fair. Prosecutors are not out to win it. And that means that if we see a problem in the case, we need to ensure that a jury knows about it. We don't hide evidence. We don't attempt to pull the wool over anyone's eyes. We are supposed to fairly prosecute the case. Common law generally requires there to be some sort of mens rea, we call it, evil mind. Or that's what we're talking about, intent. Intent to harm, intent to steal, intent to do the evil act for the evil reasons. In common law offences which are things like murder, manslaughter, those must have the evil mind. So with murder it must be intent to kill or really seriously injure. The offence here, dangerous driving causing death, is a statutory offence. Statutory offences are the ones where we tend not to see the mens rea being part of it. And so in a dangerous driving causing death there's no mental element of an evil mind. It's the objective assessment. So to make things clearer, instead of having to go and read 12 cases about what the law is, you can just go to the act and it tells you what the elements of the offence are, and what the prosecution have to prove, and what any new defences are.

James Dowsley: For a young person who's charged with a serious offence such as dangerous driving causing death in the example where he's got no prior convictions and no history in the criminal justice system, there would be an expectation that he would most likely be granted bail through the process. Given that he's on bail, he won't have as much priority in the criminal justice system to get to his trial quite as quickly.

Her Honour Judge Hannan: To take a case through this to trial you're probably looking at up to two years from the date you're charged through the Magistrates' Court, through trial in this court. So this would be a five day trial. The current delay in this court for a five day trial from the date you are here for an initial directions hearing is about 10 months.

Screen title: The trial begins

Judge: It is a critical part of our justice system that people are presumed to be innocent unless and until they are proved guilty. In a criminal trial, the prosecution must prove the accused's guilt beyond reasonable doubt. But the prosecution does not have to prove every fact that they allege to this standard. It is the essential ingredients or elements of the charge that they must prove to this standard. The elements of this crime are, one. At the time of the offence the accused was driving the motor vehicle. Two, the accused was driving in a manner or at a speed that was dangerous to the public. Three, the dangerous driving caused the victim to die.

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Page last updated: 21 September 2020