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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.
Edited by Elpidia, 20th June 2014 - 03:58 AM.
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