The Parties (VCE SSCE Legal Studies): Revision Notes
The Parties
Introduction to parties in criminal cases
In every criminal case, there are two distinct parties involved in the legal process. Understanding who these parties are and what roles they play is fundamental to grasping how criminal justice operates in Victoria.
The prosecution is the party responsible for bringing the criminal case before the court. This party represents the state and acts in the public interest to prosecute alleged criminal offences.
The accused is the individual who has been charged with committing a criminal offence. This person stands to answer the allegations made against them.
Party control
A key feature of the Australian criminal justice system is the principle of party control. This means that each party has control over how their case is conducted and presented. The parties decide what evidence to present, which witnesses to call, and how to structure their arguments.
Party control in Australia differs from some other legal systems around the world, where an external investigator might actively seek out the truth to determine guilt. In Australia, the parties themselves drive the proceedings and determine how their cases are presented.
However, this control is not absolute – parties must still comply with court rules, directions, orders, and any legal obligations imposed on them. For example, the accused has a legal obligation to attend their trial.
Roles of the prosecution
The prosecutor occupies a unique position in criminal proceedings. Unlike in civil disputes where a plaintiff seeks to win their case, prosecutors have a fundamentally different responsibility. They are not supposed to "win at all costs." Instead, their duty is to present the entire case fairly to the jury (or magistrate) and allow them to decide on guilt based on the evidence.
The prosecution has three main roles in a criminal case:
Disclose information to the accused
The prosecutor has a fundamental duty to disclose all relevant information to the accused. This disclosure obligation is critical to ensuring fairness in the criminal justice system.
The accused must be informed about several key matters:
- The evidence that will be used against them
- The names and statements of witnesses who will testify
- Any material that might help the accused's case, even if it weakens the prosecution's position
In 2020, the Victorian Law Reform Commission (VLRC) – Victoria's leading independent law reform organisation that reviews and recommends changes to state laws – made important recommendations about disclosure. The VLRC suggested that legislation should be amended to clarify that the Director of Public Prosecutions (DPP) has an ongoing disclosure obligation. This means the duty to disclose continues even after the case concludes, regardless of whether the prosecution succeeded or failed.
The disclosure obligation extends to revealing any relevant criminal convictions of prosecution witnesses. This is important because such information may affect the credibility of the witness. For instance, if a witness testifying against the accused has prior convictions for fraud, this could significantly impact how believable their testimony is.
The accused's legal representatives can use this information during cross-examination to challenge the witness's truthfulness about what they claim the accused did or did not do.
However, the VLRC has noted that early and adequate disclosure remains a problem in Victoria. Sometimes police wait to see what information the defence requests rather than providing full disclosure upfront. This reactive approach can undermine fairness.
Participate in the trial or hearing
During the trial or hearing, the prosecutor must actively present the case. This involves several distinct activities:
Opening address: The prosecutor presents an opening statement that outlines their case. This address helps jury members (in higher courts) or the magistrate (in the Magistrates' Court) understand what issues are at stake and what evidence will be presented. In summary hearings, opening and closing addresses can only be given if the court grants leave (permission).
Presenting evidence: The prosecutor must present all evidence that supports the case. This includes:
- Calling witnesses to give evidence
- Conducting examination-in-chief – the questioning of the prosecution's own witnesses to prove the case and challenge the opponent's position
- Presenting both lay witnesses (ordinary people who saw what happened) and expert witnesses (specialists who can give evidence about technical matters, such as psychological conditions)
Cross-examination: After the accused presents their evidence, the prosecutor has the opportunity to conduct cross-examination – the questioning of witnesses called by the other side to test their evidence and credibility.
Closing address: After all evidence has been presented, the prosecutor delivers a closing address. This address must be carefully crafted and limited to discussing the evidence that has been presented.
Prosecutors must not:
- Try to invoke emotions in the jury
- Express personal opinions about the case
- Go beyond what the evidence has shown
Worked Example: R v Russo [2004] VSCA 206
This case demonstrates what can happen when a prosecutor oversteps the boundaries in their closing address.
The Case: The offender was charged with murdering his parents and pleaded not guilty. After a trial involving 32 witnesses, the jury found him guilty and he was sentenced to 28 years in prison.
The Problem: The offender appealed on several grounds, including that the prosecutor's closing address caused a miscarriage of justice. During the closing address, the prosecutor repeatedly asked questions like "if it was not the accused who murdered his parents, then who was it?" Justice Nettle noted that this question was asked many times strategically, leaving it "ringing" in the jurors' ears.
The Court's Finding: The Court of Appeal found this problematic for two reasons:
- It invited the jury to consider who else might be responsible, shifting focus away from the prosecution's evidence
- It appeared to reverse the burden of proof by suggesting that unless the jury could identify another suspect, they should conclude the accused was guilty
The Outcome: The appeal was allowed and a new trial was ordered. In 2005, the offender was ultimately found guilty again and received the same 28-year sentence. This case illustrates how important it is for prosecutors to conduct closing addresses properly, even though the final outcome was the same.
Make submissions about sentencing
If the accused pleads guilty or is found guilty after trial, the case moves to a plea hearing where sentencing is determined. At this stage, the prosecutor can make submissions to assist the court in deciding an appropriate sentence.
The prosecutor's role is to inform the court about:
- The laws that apply to sentencing
- Facts about the offence that are relevant to sentencing
- Information about the offender that may be relevant
The prosecutor's duty remains to assist the court, not to advocate for the harshest possible punishment. The High Court has previously held that prosecutors should not make submissions about the specific sentencing range that should be applied – this determination is for the court to make.
Roles of the accused
The accused's role differs fundamentally from the prosecutor's role because the accused does not bear the burden of proof. The accused has the right to remain silent throughout the entire case if they choose to do so.
If the accused is represented by legal practitioners, those lawyers will perform these roles on their behalf. The accused has two main roles:
Participate in the trial or hearing
The accused can choose whether and how to participate in the trial or hearing. They are entitled to remain completely silent and present no defence at all. However, if they choose to present a defence, their role (or their legal practitioners' role) may include:
Opening address: Similar to the prosecutor, the accused can present an opening statement summarising the evidence they plan to present. However, they must not include any material that is irrelevant or that will not be supported by evidence. Like the prosecutor, in the Magistrates' Court the accused must be granted leave to make opening and closing addresses.
Presenting evidence: The accused can present evidence supporting their case, normally by calling witnesses. The accused may also choose to give evidence personally at any stage of the trial.
Cross-examination: The accused (or their legal representatives) can cross-examine witnesses called by the prosecution to challenge their evidence and credibility.
Closing address: After the prosecutor gives their closing address, the accused can present their own closing address. This must be limited to discussing the evidence presented and should not go beyond what has been proven in court.
Make submissions about sentencing
If convicted, the accused is entitled to make submissions during the plea hearing about what sentence should be imposed. The accused (or their legal practitioners) will typically argue for the least severe sentence possible by presenting factors that support a lighter penalty.
When making sentencing submissions, the accused might rely on:
- Personal circumstances that explain their actions
- Evidence of remorse
- Steps taken toward rehabilitation
- Any mitigating factors
The accused must not mislead the court when making these submissions. Honesty and accuracy remain essential even when arguing for leniency.
Strengths and weaknesses of the parties' roles
Understanding the strengths and weaknesses of how parties operate in criminal cases helps evaluate whether the system achieves the principles of justice. The following table examines key strengths and weaknesses:
| Strengths | Weaknesses |
|---|---|
| The prosecutor has special obligations to disclose all relevant matters to the accused. The accused must also receive notice before witnesses are changed. This prevents "trial by ambush" where one party cannot properly challenge evidence because they had no prior warning. | The Victorian Law Reform Commission has noted that early and adequate disclosure remains problematic in Victoria. Police sometimes wait to see what the defence requests rather than providing comprehensive disclosure upfront, undermining the fairness this system is meant to achieve. |
| Both parties have the opportunity to present their cases fully, including through opening and closing addresses. Both can examine and cross-examine witnesses through examination-in-chief and cross-examination processes. | The processes involved in criminal trials are complex and difficult to understand without legal training. This makes participation very challenging for self-represented accused people who cannot afford lawyers. |
| The accused has no obligation to present evidence or say or do anything during the trial, protecting their right to silence. | Party control and the right to silence may prevent the truth from emerging. The accused may choose not to say or do anything, even when they are the only person who knows what actually happened. This can feel particularly unjust for victims and their families who seek answers. |
These strengths and weaknesses connect directly to the principles of justice – fairness, equality, and access. While the system provides important protections, it also creates challenges that may undermine justice in some cases.
Key Points to Remember:
- Two parties in criminal cases: The prosecution brings the case to court, while the accused is the person charged with the offence
- Party control: Each party controls how they run their case, but must follow court rules and legal obligations
- Prosecution's special role: Unlike civil plaintiffs, prosecutors must not "win at all costs" – their duty is to present the case fairly and assist the court
- Key disclosure obligation: The prosecution must disclose all relevant information to the accused, including evidence that might help the accused's case
- Right to silence: The accused has no obligation to present evidence or say anything during the trial
- R v Russo case: Demonstrates that improper closing addresses by prosecutors can result in appeals being allowed and new trials ordered