[size=18]Judicial Procedures, Sentencing and Evidence Act (2014)[/size]
An Act to establish the Court Processes and Judicial systems of the Independent Order.Be it enacted by His Excellency the Grand Chancellor, by and with the advice and consent of the Senate, and by the authority of the same, as follows:
Short Title(1) This act may be referred to as The Judicial Procedures, Sentencing and Evidence Act (2014).
Court Etiquette(1) Criminal Cases (those prosecuted by the Minister of Justice or authorized agent) shall be named the Independent Order v the name of the Defendant.
(2) Civil Cases (Those brought by one member against another member) shall be named named the name of the claimant v the name of the defendant.
(3) Counsel, Parties, Witnesses and the Judge may refer to the parties as any of the following:
(i) My Client
(ii) The Claimant
(iii) The Defendant
(iv) The Victim
(v) The Appellant (Appeal Cases only)
(vi) The Respondent (Appeal Cases only)
(vii) By their user name
(viii) By any title they possess
(4) Counsel must refer to each other as either “My learned friend” or Mr/Mrs/Ms User Name or by any title of nobility they possess.
(5) Counsel, Parties and Witnesses must at the minimum address and refer to the judge as either “Your Honour”, “Judge”, or “Sir/Ma’am”. The judge may also be addressed by any title of nobility that they possess.
(6) In the Appeal Court, the Counsel is expected to address judges first by their formal title, followed by their username.
(7) The Judge is expected to refer to the Counsel first by their prefix or noble title, followed by their username.
(
It is the responsibility of the Judge to ensure respect is given in the court room, and it is the responsibility of Counsel to make it known if they believe the judge has acted in a disrespectful manner.
(9) Section 7 is designed to show the respect of the Judge towards Counsel, Witnesses and Parties, it is the responsibility of Counsel to make it known if they believe there has been any disrespect by the Judge.
(10) All those involved in cases are expected to inform the court if there is anything that may affect their participation in the case.
Court Hierarchy(11) The court of first instance shall be the High Court.
(12) Appeals shall be heard by a Judicial Committee of the Privy Council.
Court Process(13) The following principles shall be the cornerstone of the Judicial Process.
i) The Defendant is innocent until proven guilty.
ii) The yard stick by which a verdict is reached is that guilt must be proven “Beyond all reasonable doubt”.
iii) The accused has the right to face their accuser.
iv) The Court system is a hybrid of an Inquisitorial and Adversarial system.
v) The rulings of the High Court do not bind itself.
vi) The rulings of the Privy Council do not bind itself but they do bind the High Court.
(14) The following shall be the process of hearings for a case guidance for content of those hearings contained within:
(i) Pre Trial
1. Only one judge needs to be present.
2. The Prosecution calls for a session of court and files the indictment within the limitation period of the offence.
3. The Defence Counsel and Prosecution will need to agree to a date, otherwise the judges can set one themselves if a suitable agreement cannot be reached (7 days after the indictment is filed)
4. Evidence is submitted at this stage, but more evidence can be submitted later if the judge agrees and defense have time to look it over.
5. Defendant can commit intention to plea (guilty/not guilty) here. A court date will be required.
6. At this point a bail application may be made (see section 15)
(ii) Plea Hearing
1. One judge needs to be present.
2. The judge makes sure that the Pre-Trial procedures were taken care of correctly.
3. The defendant issues their formal plea here (chance to change their mind). Guilty moves onto sentence hearing. Not Guilty moves onto trial hearing.
4. The prosecution and defence inform the court of any witnesses, issues in the case, evidence exhibits, admissions, and any point of law that might arise regarding the admissibility of evidence
5. The defence counsel can ask what the likely sentence is going to be depending on whatever plea may be given.
6. The judge will then set an agreed date for the trial hearing and provide directions to the Prosecution and Defence of how to proceed with the information that has been provided to the court.
7. Any difficulties with compliance with the Judge's decisions needs to be presented at this time.
8. A formal notice of the date of the trial hearing will be sent by the clerk to the Judge, Defence and Prosecution.
9. Copies of evidence must be dispatched to the three judges that will be hearing the case as well as the defence and prosecution from the Clerk.
10. If the case looks like it is a complex case then the judges will need to be informed by the person who spots it first.
(iii) Trial Hearing
1. The judges can make sure that Pre-trial has been conducted fairly.
2. Sitting judges will listen to the evidence and may ask questions at any time. It's their court (No title is higher than that of the sitting Judge)
3. Prosecution opens the case with a summary of the evidence, the indictment, what the charge is. Defence also has opportunity for opening statement.
4. Any witnesses and evidence for the Prosecution.
5. Any applications from the Defence
6. Defence opens their case with their arguments against the evidence, whether it is valid and so on.
7. Any witnesses for the Defence (character witnesses for instance) And any evidence.
8. Prosecution summarises their argument.
9. Defence summarises their argument.
10. The Clerk then summarises to the judge. (This is mainly to clear up legal stuff and make it easier for readers to understand rather than for the judges).
11. Judges then retire and return with a verdict.
12. If guilty then a sentencing hearing date will be given.
13. If not guilty then defendant walks away free.
(iv) Sentencing Hearing
1. The clerk gives the charge and the verdict.
2. The prosecution will speak first and outline the facts of the case, including statutory requirements and extent of the breaches. All aggravating issues should be given.
3. Prosecution may also accept mitigating arguments they feel are present.
4. Prosecution may draw attention to any precedent.
5. It's the duty of the prosecutions to remind the court of its sentencing powers (if any).
6. Defence counsel now reminds the court of mitigating issues.
7. Defence may explain why a plea has been given. Though the prosecution doesn't have to accept this.
8. The prosecution may respond to the Defence Counsel's argument particularly if new points have been raised. Defence will have opportunity to counter this.
9. The judges may adjourn to consider the sentence the judges then given the sentence they have come up with.
Bail Hearing(15) At the pre trial hearing the defence may make a bail application to the court, it is the responsibility of the defence to make this application, failure to make this application may result in the defendant being remanded in custody (temporary posting ban for the duration of the legal process this does not include all PM’s).
(16) Bail may be unconditional (no restrictions on posting) or conditional (Defendant may continue to post but only under certain conditions).
(17) It is the responsibility of the Defence to propose conditions for bail.
(18) Conditions of bail may include (but are not limited to) the following:
(i) Not attempting to contact certain members (They should report any contact coming from the opposite direction).
(ii) The Defendants posting to be restricted to certain topics (e.g. factbook, News service).
(iii) If the accused is a member of the executive or legislative they are to cease all activity within that role for the duration. This should be interpreted as a vacation of position as per sections 23 and 32 of the Constitution of the Independent Order (should the Defendant be found not guilty they will of course be reinstated).
(19) The Prosecution has the right to object to proposed conditions but must give reasons for their objection.
(20) Even if remanded in custody the Defendant is still permitted to contact his or her counsel by PM this is to ensure that they are not placed at a disadvantage at trial (This is the only thing they will permitted to do.)
(21) Breaching of bail conditions once will result in a warning from the judge persistent breaches will result
in an automatic withdrawal of bail thus remanding the defendant in custody.
(22) Breached bail will not be looked on favourably by the Judge at trial and can be used to infer bad character on the part of the defendant.
Judges(23) Judges are appointed to the Judiciary by the Premier with the approval of the Senate.
(24) Any User with a previous conviction for a High crime or Felony as defined under the Criminal Code of the Independent Order is disqualified from serving as a judge (unless sentence is commuted).
(25) Any User with previous convictions defined as Misdemeanours under the Criminal Code of the Independent Order is disqualified from serving as a judge if the previous conviction is less than three (3) months old.
(26) During hearings the role of the judge shall be as follows:-
i. to keep order in the court
ii. to guide prosecution and defence counsel as to procedure and protocol.
iii. to reassure and inform witnesses when required
iv. to ensure the hearings proceeds at a reasonable pace (it is assumed that as this is a message board that we would need to have a time restraint on each part of the case to be negotiated between judge, prosecution and defence in advance e.g 3 days for prosecution and defence to each present their case)
v. where there is disputed evidence to rule on the admissibility or inadmissibility of such evidence
vi. at the beginning of each hearing the judge should remind those present what the prosecution MUST prove for a guilty verdict (Intended to help all concerned in terms of case building and in the case of the judge reaching a verdict. Should happen at minimum during pre-trial to ease appeal process)
vii. When required to give rulings (e.g evidence, objections raised) the judge must give detailed reasons for the decision, which may be revealed at the end of the trial if queried. In the case of the judgement the full judgement with reasons should be posted in a single post. The reasoning again is to help the appeals panel see what the judge was thinking.
viii. After the final hearing of a case the Judge is required to publish any posts that guided his/her decision
ix. the decisions of the Judge in the judgement must be based on the evidence presented otherwise there is an automatic ground for appeal.
x. After the hearing the clerk is responsible for updating the precedent archive unless there is no clerk available in which case the judge is ultimately responsible.
(27) In the course of a hearing the Judge:
i. MAY ask questions of the prosecution and defence counsel for clarification and procedural purposes only (unless either one is vacant or represented by litigant in person. In which case for the purposes of justice the judge may take on a more inquisitorial role)
ii. MAY adjourn a case to a later date at the request of either counsel with the consent of another, or with the consent of both counsels if there is a reason why the Judge cannot be present.
iii. MAY dismiss a case if no progress is made within a reasonable time frame (in accordance with point iv of section 26 above)
iv. MAY charge counsel or a witness with contempt of court if the criteria of the Independent Order Criminal Code is met.
v. MAY request discussions with counsel (to be done via PM and in a stated period during an adjournment)
vi. MAY NOT discuss the details of the case with anyone except counsel and other judges. In the case of counsel only with both counsel present (see 27 v above)
(28) A Judge is expected to recuse (remove himself) from a case if there is a conflict of interest or other such serious reason that would affect his/her ability to judge the case before them fairly.
(29) During hearings a Judge may need to interpret wording within pieces of legislation the Judge is permitted to do any of the following:
i. In order to remedy the situation at hand the Judge may use the mischief rule to interpret the intended will of the Senate (The judge may look at the legislation itself. The debate regarding the legislation or any notes attached to the legislation to infer the intended meaning of the legislation)
ii. In order to avoid an absurd result the Judge may consider using the Golden Rule to depart from a word's normal or most frequent meaning.
iii. If all else fails, the Judge should grab the Oxford World English dictionary and look up the meaning of the word in what is known as the literal rule.
The Judiciary(30) All appointed judges shall be termed as members of the judiciary.
(31) The judiciary shall have their own sub forum within the High Court for their eyes and the Minister of Accountability’s eyes only (for discussion and opinion on cases, Minister of Accountability for impartial observation.)
(32) One judge shall be appointed by the Grand Chancellor to serve as Lord Chief Justice
(33) The role of the Lord Chief Justice shall be to liaise with the Minister of Justice on behalf of the Judiciary. (The Lord Chief Justice is not a government post)
(34) The Judiciary shall be subject to a quarterly review by a panel of five (5) executive ministers and Senators to be chaired by the Minister of Accountability and include the Minister of Justice.
(35) The Judiciary shall be represented at the review detailed in section 34 by the Lord Chief Justice or his authorized agent.
(36) As outlined within this Act certain offences will disqualify Judges from serving, this applies during their service as well.
The Clerk(37) Clerks are appointed by the Minister of Justice.
(38) The role of the Clerk shall be as follows:
i. To update the precedent archive with the judgement of each case once that case has finished.
ii. To serve as the judge's liaison should there ever be cause to switch judge mid case.
iii. To keep the court diary (how many cases are going on at the same time, when are cases set down for)
iv. To relay messages from counsel and others to the Judge.
v. To make sure that any questions asked by the judge comply with evidence guidelines
vi. To record the process of court and serve as a reminder to the judge and to the counsel if process has not been followed or what process should be followed.
vii. To provide and make sure that all parties have received the facts of the case.
viii. To summarise the facts of the case in plain English.
ix. To manage the process of the court itself. Unless the Clerk is not present in which case the role of the Clerk falls to that of the Judge.
(39) Upon passing of this legislation the Minister of Justice shall appoint a Clerk to establish the relevant threads required for the administration of the Judicial System.
The Precedent Archive(40) The Precedent Archive shall be a sticky thread within the High Court.
(41) The Precedent Archive shall contain an index of cases by offence as per the Criminal Code of the Independent Order.
(42) Each entry in the Precedent Archive index will have the following format:
Case Name:
Offence:
Court:
Judge:
Verdict:
(43) Each individual entry in the Precedent Archive will start with the format as described in section 42 and contain the full text of the judgement in that case.
Counsel(44)Definition- Counsel refers to legal representative and can be substituted for Prosecution, Defence, Claimant, Appellant, Respondent.
(45) Professionally Embarrassed- Associated normally with the defence but can apply to prosecution; simply put the client confesses to counsel something that is contrary to what they intend to testify to and counsel is unable to convince them to either confess to the court or not testify (the client plans to take the stand and lie). It may also mean where either counsel admits to a breach of process and/or where the defendant would no longer receive a fair trial because of their actions.
(46) The role of Counsel during the judicial process shall be as follows:
i. to zealously represent their client's best interests and advise their client in the same way.
ii. to give notice to the Judge (or the clerk) of availability dates for hearings promptly once proceedings are issued (see iii).
iii. (Prosecution, Claimant or Appellant only) to issue proceedings (give notice to the court by means of a post) no less than one week before the proposed date for pre-trial hearing. The notice must include the name of the Defendant and the charge.
iv. To give notice to the Court of any changes in their case
v. To provide a bundle (copy of their evidence) to the Judge and other side at the Pre-trial hearing, this should include any witnesses or witness statements as well as any other evidence.
vi. To ask to withdraw from the case should they become "Professionally Embarrassed" (failure to do so will result in being charged with contempt of court).
vii. (Defence) may make a submission of no case to answer once the prosecution or claimant has closed its case but reasons must be given.
viii. May request the Judge withdraw from the case if they have reason to believe a fair hearing is compromised, reasons must be given.
ix. May seek clarity from the Judge about a line of questioning they wish to take.
x. May seek leave to appeal the judgement at the close of a case but must cite the grounds for the appeal. A judge (not the same one who tried the case) or the Premier (in the absence of any other judge) must give leave for the appeal.
xi. If counsel cannot be found then either side may be represented as Litigant in Person (The client himself)
xii. To examine the evidence of the case before them.
Prosecution(47) It is the responsibility of the Minister of Justice to determine whether a case should be prosecuted or not.
(48) The Minister of Justice may prosecute a case himself or may authorize someone else to carry out the prosecution.
(49) Having decided to prosecute a case the Minister of Justice or in his absence either the Premier or Vice Premier must issue proceedings (as per section 46 3) in a thread titled “Issued Proceedings” in the High Court within the limitation period for the offence and in the following format.
Name of Defendant
Charge
Detail of charge (summary)
Proposed date of pre-trial hearing (no less than one week from issue of proceedings)
Is bail to be opposed or not
Signature (Premier/Vice Premier/Minister of Justice’s user name)
(50) The person who issues proceedings is required to inform the Defendant by PM of the proceedings so that equal preparation time is gained and a fair trial is ensured in this sense.
Defence(51) The Defendant picks their own advocate.
(52) If the Defendant cannot find an advocate then the Court shall delay commencement of proceedings whilst it attempts to find a willing advocate for the Defendant.
(53) Should the Court not be able to find an advocate then as per section 46 xi the Defendant may represent themselves as a litigant in person.
Article Eight Procedural Objections and Applications(54) Counsel are permitted to make any of the following objections or applications concerning the process of the trial, they are required to give reasons supporting the application, the Judge then decides whether to sustain or overrule the matter.
i Objection to the Judge hearing the case
ii Objection as to process taken by the Judge in conducting the hearing
iii Objection as to conduct of opposing counsel
iv Application for case to be dismissed (will normally result in a re-trial)
(55) The Defence may before opening its case make an application of no case to answer. To be successful this application must show that the Prosecution has failed to meet the basic requirements to suggest a reasonable degree of guilt on the part of the defendant. If successful the case is automatically dismissed.
Sentencing(56) The Process at a sentencing hearing shall be as found under section 14 of this Act.
(57) If a court imposes a sentence outside the ranges indicated in the guideline it should state its reasons for doing so.
(58) These guidelines cover all laws which are applicable to the High Court when a criminal case is being pursued.
(59) The sentence must be just and proportionate and must never exceed the statutory maximum.
(60) The court should follow any guideline relevant to the case at hand.
(61) When sentencing a court should reflect the seriousness of the offence considering any mitigating or aggravating factors.
(62) A court should consider reductions for defendants that help to speed up the process of the court through their own actions.
Totality(63) It is the principle of totality to:
i. Reflect all offending behaviour before it is just and proportionate and to decide whether sentences should run concurrently or consecutively.
ii. To address the offending behaviour together with the unique factors to the case.
iii. To apply a sentence that is just and proportionate.
(64) Concurrent sentences are appropriate where:-
i. Offences arise out of the same incident.
ii. The series of offences are of the same kind.
iii. Where to be passed the sentence should reflect the aggravated presence of associated offences.
(65) Consecutive sentences are appropriate where:-
i. The offences are not related by either fact or incident.
ii. Where the overall criminality is not sufficiently reflected by a concurrent sentence.
iii. Where an offence would undermine any minimum tariffs.
iv. Where to be passed the court should consider whether the sentence is just and proportionate.
Previous Offences(66) Where an offender asks for previous criminal conduct to be taken into account the court shall:
i. Decide whether to take previous criminal conduct into consideration (Where previous criminal conduct taken into consideration, pass a sentence which reflects all behaviour.)
ii. Consider whether the offender has not hindered the prosecution and has otherwise demonstrated a genuine determination by the offender to make amends.
iii. Previous offences should not be taken into consideration where:
iii(i) The offences together are likely to attract a greater sentence
iii(ii)It is in the intrest of justice to apply the matter as a seperate case entirely.
iii (iii) The offence constitutes a breach of an earlier sentence.
iii (iv)The previous conviction is not similar at all to the case in hand.
(67) The Court should only take offences into consideration whereby it does not offend the process of the court in such cases as:
i. They do not conflict with the Prosecutors list of prior offences.
ii. Where the date of the offences, relevant detail and other brief details about the offences has been made available to the court.
iii. Where the defendant has agreed with the Clerk to permit the previous offences.
iv. The defendant has admitted in open court the offences.
(68) If there is any doubt as to the admission under section 67 iv, the offence should not be taken into consideration
Sentencing Process(69) It is the role of the court to:
i. Determine the starting point of the sentence for the initial offence
ii. Consider the aggravating and mitigating circumstances that justify an adjustment. In which case previous offences should be an aggravating circumstance. Where there is a large number of offences it may be agreeable to move beyond the normal range of the sentence.
iii. Consider whether the admission of the offences is an indicator of the remorse of the defendant and a demonstration of steps taken to address the offending behaviour.
Aggravating Factors(70) Aggravating Factors may include (but are not limited to) issues similar to the following
i. Previous Convictions for similar offences (date relevant)
ii. Seriousness of the offence
iii. Bad conduct by the defendant between charge and sentence (may include breach of bail conditions, contempt of court, outbursts etc)
iv. Defendant is of questionable character.
Mitigating Factors(71) Mitigating Factors may include (but are not limited to) issues similar to the following
First offence of this type (or first offence of this type for a 'reasonable' time)
i. Good conduct by the defendant throughout the process
ii. Defendant is of previous good character.
iii. Defendant pleaded Guilty (Sentence reduction may be reduced by greater scale the earlier the guilty plea is made)
iv. Defendant has other relevant circumstances (must be stated clearly in mitigation)
(72) When considering a sentence a Judge must consider precedents but may determine that there are significant circumstantial differences that distinguish the cases enough to render the precedent irrelevant.
Appeals(73) There is no automatic right to appeal
(74) In order to seek leave to appeal an application to appeal must be lodged in the “Appeals” thread in the High Court no more than seven (7) days after the sentence at first instance is given.
(75) The application to appeal must contain the specific grounds on which the case is being appealed and who is appealing it.
(76) The appeal can only be judged on the grounds on which the appeal is brought
(77) The Judge at first instance may not hear the appeal
(78) It is the decision of the Judicial Committee of the Privy Council to give notice of a case that they intend to hear the appeal of.
(79) Appeals are heard by a panel of no less than three (3) Judges (Privy Councillors), but may have any number.
(80) All rules relevant to the case at first instance apply on appeal as well. (judge’s asking questions, objections etc)
(81) All rulings of the Judicial Committee of the Privy Council are to be recorded in the Precedent Archive
(82) The process of an Appeal hearing is as follows
i. The chairing judge opens proceedings by stating the case details
ii. The Appellant states the facts of the case, grounds of appeal and presents his argument as to why the appeal should be allowed
iii. the Respondent states his argument as to why the appeal should be refused
iv. the Appellant has the right to respond to the Respondent’s argument
v. the Judges consider and deliver their ruling.
(83) The Judicial Committee of the Privy Council may do any of the following in terms of sentence
i. Increase the sentence
ii. Decrease the sentence
iii. Quash the sentence
(84) The Judicial Committee of the Privy Council may if it deems it appropriate order a re-trial of the case
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