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The Legal System
This section outlines the basics of what families can expect during the investigation and subsequent trial of the offender. This is in no way an exhaustive list, and we would recommend families contact QHVSG staff for more information on their specific case.
The Homicide
Commonly, families are first notified of the homicide when their local police arrive on their doorstep. The Detective may ask the family to assist with the investigation by providing one or multiple statements and by allowing them to execute search warrants in order to gather evidence. The location of the homicide is declared a crime scene, if this is the family’s home, they may be asked to find alternative housing until the police have released the crime scene over for cleanup (cleanup is carried out by specialist crime scene cleanup investigations – QHVSG or your Detective can assist with organising this). QHVSG often assists families to access emergency accommodation (often at no cost to the family) in their local area.
Bail
If successful for a bail application, the defendant is released back into the community; however they are expected to attend court proceedings until the verdict is administered. There are usually orders or conditions placed on the accused whilst on bail and if these orders are breached, then the accused may be remanded back into custody for the duration of the court process. If the accused/offender has been granted bail and a family or individual feels that their lives are in danger or have other concerns, then it is suggested that you speak with the detective in your case or contact the QHVSG.
Mention/s
Throughout the legal process, you will hear this word being used. Mentions can occur at any time during the legal process, essentially this is an opportunity for both the prosecution and defence to meet before a Judge or Magistrate and re-evaluate where the case is, and how far away both parties are from proceeding. It is not necessary for family to attend. Mentions generally only last for a few minutes, nor is the offender present. Families can encourage the Detective handling their case to let them know the outcome of the mention (e.g., another mention or a date has been set to proceed to the committal hearing or the trial).
The Committal
At a committal hearing, a police prosecutor will submit evidence to the court associated with the murder of your loved one. This may include such things as the murder weapon, witnesses, video footage, forensic evidence and any other facts that the police have found during their investigation.
The Committal Hearing will be heard in a magistrates court within the region in which your loved one died. These hearings are usually ‘open’ meaning that anyone has the right to attend and sit in the gallery at the back of the courtroom (refer to the Queensland Courts website for further information on the layout of the courtroom).
The hearing is heard in front of a “magistrate” and it is up to them to weigh up the evidence and decide whether there is a ‘prima facie’ case, in other words, is there enough evidence to send this to trial in the Supreme Court. This is different to the Trial itself, where a jury of twelve are responsible for determining the actual outcome.
Because of the nature of a Committal Hearing, families may find attending incredibly difficult. There is often a great deal of legal argument and jargon, as well as highly graphic evidence and testimony. Please remember that QHVSG will try to provide families with a court peer supporter, please contact us on 1800 774 744 to arrange.
The Trial
Once the case has been committed to trial, it will be listed to be heard in one of Queensland’s supreme courts (locations can be found on Queensland Courts website or by talking to QHVSG).
A state-appointed Prosecutor (from the Department of Public Prosecutions) will try the case in front of the Judge, and a jury of twelve. It is essential that the jury reach a unanimous verdict, and because of this, jury deliberations can go for hours and in some cases, days.
The family have the right to request a meeting with the Prosecutor prior to trial where they can discuss their fears, questions, and hand over a copy of family members’ Victim Impact Statements (see below).
On day one of the trial, a jury will be appointed, and the case will commence. Family members are welcome to be party to this by sitting in the gallery at the back of the court. Despite the overwhelming nature of this setting, it is common to feel a sense of anger, frustration, and incredible pain as the facts are laid before the jury and witnesses relive their testimony. Again, please consider having a QHVSG (or family) court supporter with you during this time.
On conclusion of the trial, the judge will sum up the case, the jury will go out to deliberate on the verdict, which will be either “guilty” (in which case the offender will be taken into custody), “not guilty” (in which case the accused will walk free from the courtroom), or a combination of both if there is more than one charge. If the accused has been found guilty, the case will be listed for sentencing.
Victim Impact Statement
Family members are encouraged to share their thoughts, hurt, feelings, and an insight of their lives without their loved one with the judge. This takes written form, and is called a Victim Impact Statement. This is perhaps the only opportunity a family has to have their anguish considered; as such we encourage family members to take some time to do this, even if that means only one paragraph. QHVSG can assist with the writing of your Victim Impact Statement.
Sentencing
Once an offender has been found (or has plead) guilty, a date will be set for sentencing. This is again heard at the Supreme Court, in front of a judge, however no jury is present. Family are quite welcome to attend (as it is usually an open court). Sentencing can last for one or more hours during which time the prosecution and defence illustrates the reasons for seeking a particular length of time spent in custody. The judge, having heard these arguments and considered the evidence, will then outline the offenders’ sentence, including their non-parole period.
Appeal
The defendant has the right to lodge an appeal, against either the verdict or the sentence imposed by the courts. Generally the appeal period is one calendar month from the day of conviction; however the court of appeal has discretion to allow applications outside of this timeframe. Once an appeal has been lodged, the matter will be given a hearing date (this can be some months after the original conviction) whereby a panel of judges will re-examine the evidence and consider the defendants complaint. Based on this one of several outcomes may occur including:
- Dismissing the appeal (in which the original conviction / sentence applies)
- Remitting the matter back for a retrial
- Quashing the verdict and giving an acquittal verdict (in which the defendant is not guilty)
- Directing that there be no retrial without directing a verdict of acquittal
- Substituting a verdict of guilty of a different offence where the jury must have found an accused guilty of that other offence
- And, in exceptional circumstances, setting aside the conviction and entering a verdict of not guilty but insane
(ref: http://www.courts.qld.gov.au)
Unfortunately, families have little power over what occurs in, and the outcome of an appeal hearing. We recommend contacting QHVSG for support and information during this time.
Parole
Parole Boards are independent statutory bodies appointed by the Governor in Council. There are three Parole Boards; the Queensland Parole Board, Southern Queensland Regional Parole Board and Central and Northern Queensland Regional Parole Board. The Queensland Parole Board makes decisions on parole for serious offenders serving sentences of eight years or more.
The Regional Parole Boards make decisions regarding parole for offenders serving sentences in excess of three years but less than eight years.
The Corrective Services Act 2006 introduced the new system that ensures all offenders serve their entire sentence either in custody or on parole. The sentencing court must set a parole release date for sentences of 3 years or less and not a serious violent offence or sexual offence. An offender commences parole on the release date and will be issued with a parole order with statutory conditions by the Chief Executive's delegate.
The Parole Boards role is to determine whether eligible offenders are ready for supervised released into the community. Parole orders may include conditions relating to a number of matters, including employment, accommodation, programs to be undertaken and curfews. However these conditions must be to ensure the offender's good conduct or to stop the offender committing an offence.
Victims of crime who are registered with the Victims Register will be notified when an offender lodges an application for parole and invited to make a written submission to the Parole Board within 21 days.
In considering an application for release to a parole order the board holds community safety paramount. The Board takes a number of factors into account, including:
The nature of the offence
- the offender's past offences and any patterns of offending;
- the possibility of the offender committing further offences;
- whether the offender has previously been granted an order and if so, whether the offender breached any conditions of that order;
- whether the offender has successfully completed programs of rehabilitation;
- The institutional conduct of the offender whilst incarcerated
- The viability of the offender's relapse prevention and release plans;
- The risk of physical or psychological harm to a member of the community and the degree of risk;
- Any behavioural report relating to the offender; and
- The sentencing Judge's recommendation.
(Ref: http://www.dcs.qld.gov.au/About_Us/Community_Corrections_Board/index.shtml)
QHVSG can work with families to ensure their thoughts, fears and concerns are heard. Please contact the office on 1800 774 744 as soon as you learn of the offender’s application for parole
Mental Health
The Mental Health Court decides amongst other things, the state of mind of the person/s charged with criminal offences.
If there is reasonable cause to believe that an alleged offender is or was mentally ill or has an intellectual disability of a degree that the person’s mental condition should be considered by the Mental Health Court then a criminal case may be referred to that court.
A case would be referred to the Mental Health Court to have the following questions answered:
- Was the alleged offender of unsound mind at the time of the offence?
- Is the alleged offender unfit for trial?
- Is the unfitness for trial permanent?
- If the charge is murder, was the alleged offender suffering from diminished responsibility at the time of the offence?
Because the Mental Health Court is not bound by the rules of evidence it is able to accept material that may otherwise be inadmissible in general court proceedings. To this effect, victims of homicide can make what is called a non-party statement for the Mental Health Court.
Any member of the public may attend the hearing of a criminal case that has been referred to the Mental Health Court. However, the court may order the hearing or parts of it to be closed to the public if it is in the interests of justice. Hearings related to young persons (a person under 17) are not open to the public.
When the Offender is a Juvenile
Any child above the age of criminal responsibility who is charged with murder can be tried in an adult court. Within Queensland the minimum age for criminal responsibility is considered at age ten years whereas the maximum age to be tried as a juvenile is aged sixteen – although special considerations can be taken into account. Special conditions apply to trying juveniles within an adult’s court, including potentially, the family of the victim being refrained from entering the hearing. It is important that you notify QHVSG if the offender in your case is a juvenile, so that they can work with you to ensure your involvement in the hearings.
Coronial Inquest
An inquest is a formal court hearing that is conducted by the Coroner. The coroner’s roll is to examine the circumstances surrounding a death, however, proceedings are conducted without utilising the rules of evidence as would normally apply in general court proceeding. Witnesses may be called whilst under oath to provide evidence during these proceedings and exhibits may be presented. Usually, an inquest is open to the public.
A Coroner will investigate all ‘reportable’ deaths. In certain types of deaths, including certain homicide related deaths, the investigation will include an inquest. However, the Coroner may decide that an inquest is not necessary after examining such things as witness’s statements and medical reports.
It is usually the police officers and medical practitioners who will notify the Coroner, however it is open to any person to notify the Coroner if they believe that the death is considered ‘reportable’.
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