What Courts Vouchsafe To Do in Tasmania

Retired magistrate Melanie Bartlett of Burnie

by Mary W Maxwell, LLB

Last year at the Melbourne Fringe, Dee McLachlan read aloud some of Martin Bryant’s July 4^, 1996 chat with the police. It was the first time I noticed a certain remark that Bryant made:

You’re in a little bit of trouble Martin aren’t you? Would you say?

I dunno, I spose I am. I’d like to get, get hold of some bail money. He said, are you Mr Martin Bryant? I said, yes. He said, you’re remanded in custody till this … inaudible … I didn’t even come to the hearing, okay ‘cos I wasn’t well … inaudible… I should see me solicitor about bail.

First, note that “inaudibles” tend to appear in places where the transcriber may have decided against transcribing.

“I didn’t even come to the hearing ’cos I wasn’t well … inaudible.” It is worth finding out more abut that inaudible.

Let’s track down what kind of hearing he was entitled to before July 4. We now know that soon after his April 28 arrest he was charged with one count of murder. Then we (the public) don’t have much data until the July 4 questioning by Officers Paine, Warren, and Jones.

Note: That police interview was said to be audio only as “the video broke down” but on Mike Willesee’s anniversary extravaganza we saw that the video is alive and well!

I now have good news. I was able to find, on Magistrates of Tasmanian website, an excellent description of what happens in any criminal case. As it is a bit lengthy, I will bold the bits most relevant to Bryant.

After pleading innocent when he was first arraigned (presumably before a Magistrate), Martin became eligible to go to a hearing in the Supreme Court.  If, while there, he said “Not Guilty,” his trial would start from that moment!  Yes, so says this authoritative website.

Maybe that was the hearing he failed to attend, but surely his solicitor (Deborah Rigby or David Gunson) would have represented him.

I take all of this from: magistratescourt.tas.gov.au

A Criminal Action

A criminal action is an action brought by the State against an individual …. (When a person is convicted of a serious offences in the Magistrates Court or the Supreme Court, the court is required to impose a compensation levy under the Victims of Crime Compensation Act 1994.)

A criminal action begins with the police charging a person with an offence. Indictable offences are more serious than summary offences and are generally dealt with in the Supreme Court.

To Start the Procedure

All offences, with only rare exceptions, are officially recorded on a piece of paper called a “complaint”. This document is drawn up by the police and contains:

— the accused’s name and address;

— the name of the offence they are charged under; and

— a brief summary of the facts which the police think make the accused guilty of that offence.

Once a person has been charged with an offence the law requires that the police bring them before a magistrate as soon as is reasonably possible. At this first appearance the accused has a right to have his matter adjourned to another date in order to decide whether he will plead guilty or not guilty. Alternatively, he can plead to the charge on his first appearance. [I use “he” where the website uses “he/she.”]

Once the accused has been remanded to a future date, or had pleaded not guilty or guilty to the charge, the Magistrate will either remand the accused in custody (gaol) or on bail.

[I assume that is where Martin was asked “Are you Mr Martin Bryant?  I remand you in custody…”]

After the Accused has Pleaded

…… [Regarding] an indictable offence, the Magistrate will need to make an order for “committal” to the Supreme Court.   If the accused has pleaded guilty in the Magistrates Court then he will be committed to the Supreme Court for sentence.

If the accused has pleaded not guilty in the Magistrates Court then the Magistrate may order that a “committal proceeding” commence prior to moving the case to the Supreme Court. At this proceeding the witnesses for each side may be examined and cross-examined and the strength of the State’s (or Crown’s) case against the accused will be assessed.

[Note: Probably they skipped this nicety; I don’t know.]

When the Crown is finally ready to proceed the accused will be brought before the court and their matter announced. The accused will be asked to plead to the charges read out from a document called an “indictment”.

The accused may change his plea at any point in the proceedings. If the accused pleads “guilty” then he can either be sentenced then and there or be remanded off for sentence on another day. If the accused pleads “not guilty” then the trial officially begins at that point. 

[Son of a gun!!! Looks like Martin had a trial for a while.]

Once an accused person has pleaded not guilty a jury will be empanelled to try the case. The accused has a right to “challenge” six of the jurors and have them removed from the jury.

[I don’t know if a jury was empaneled for Bryant.  When the DPP wrote to Wendy Scurr, advising that she would not be called as a witness, he mentioned to her that November 18 was the likely starting date for the trial, so perhaps a jury was empanelled.]

Once the jury has been empanelled and finally sworn in, the representative of the State, referred to as the “prosecutor” or the “Crown” will make a short statement to the jury about their version of events. The accused or his lawyer will then be entitled to make a short statement, with certain restrictions, about their version [as in “He was surfing at Roaring Beach”].

The Crown will then call witnesses to testify against the accused. The Crown may also produce physical or written evidence to support their case against the accused.

The accused may now give evidence personally, or call his own witnesses, or both. Both the accused and their witnesses may be cross-examined by the Crown.

The Crown and the accused, or his legal representative, will then both address the jury to sum up the case as they see it and convince them of the truth of their respective cases.

The judge will then give some directions about the law to the jury and they will then be sent out to deliberate over whether the accused is guilty or not guilty.

Finally the magistrate’s website poses two questions:

“Can an accused change his plea at any time? Yes. An accused person can change his plea from guilty to not guilty, or vice versa, at any time during the proceedings, including during the middle of a trial.”

“Must an accused person have a lawyer to represent them? No. If an accused does not wish to have a lawyer represent them in court they may represent themselves. If they do wish to have a lawyer but cannot afford one they can apply to the Legal Aid Commission for legal representation.”

In Adelaide

The forthcoming Fringe show, March 15, 2017, is going to allow both sides to have their say. (In 1996 only the prosecution spake. There was no defense.)

However, this is not open slather on the government or anything like that. The case will be strictly handled to allow only material that existed on file as at December 10, 1996. That is the day on which the Moot Court is pretending to take place.

Thus we will exclusively use documents known to have been in the DPP’s file in 1996, not the voluminous later research. An example of what we won’t use is the “Permission denied” stuff. There will not be the slightest discussion of the possible guilt of any other person but the accused.

You think I can’t restrain myself? You’re wrong. I won’t even raise an eyebrow at pertinent points in the show. I won’t go “cough-cough” in a way that would make anyone think of gunshot-gunshot.

Be there or be triangulated.

— Mary W Maxwell is a Fringe junkie

Photo credit: the advocate.com.au. 
Picture by Katrina Docking