Previous Document

1.6. Courts and parties involved in complex criminal trials


Jurisdictional matters


The current distribution of responsibilities in relation to corporate fraud is
that, under the Standing Committee of Attorneys General (SCAG) agreement
reached at Alice Springs on 29 June 1990, the Australian Securities Commission
(ASC) and the Commonwealth Director of Public Prosecutions (DPP) have replaced
State agencies and become 'the primary investigative and prosecution agencies
in dealing with corporate fraud, both as regards offences committed prior to 1
January 1991 ('co-operative scheme' offences) and offences committed after
that date ('national scheme' offences)' (Weinberg (1991)).

   Under our present system corporate fraud, whether committed under the
   co-operative scheme, or under the national scheme provisions, is
   prosecuted in State, rather than federal Courts. There are no Federal
   Criminal Courts in this country, though the Federal court has a very
   limited criminal jurisdication in, for example, trade practices
   matters. State Courts exercise federal jurisdication when dealing with
   offences under Commonwealth law ... State rules of criminal procedure
   are followed... State rules of evidence govern trials... (Weinberg
   (1991))
   
In contrast to this 'unsatisfactory state of affairs', 'in the United States,
federal offences are dealt with in Federal Courts, applying national and
uniform rules of procedure and evidence (Weinberg (1991)).

In the absence of any proposals to vest criminal jurisdication in relation to
Commonwealth offences in the Federal Court (Weinberg (1991)), we must assume
that all of the Courts which may utilise information technology in complex
criminal trials (at least in relation to corporate fraud) will be financed and
controlled by the States or Territories, whereas Commonwealth agencies will
usually be responsible for the prosecution. The potential complications this
may bring are apparent from the view of Weinberg (1991) on the situation at
that time:

   In Victoria ... it is almost impossible to bring a fraud prosecution
   in the Supreme Court, no matter how great the magnitude and complexity
   of the fraud. This is a cause for concern. Regrettably, Commonwealth
   use of State Court time seems to be resented. Whether the Commonwealth
   should reimburse the States for Court usage is, of course, a matter
   for politicians.
   


                                                            Next Document