In this assignment a case is described where an offense is identified. A person has murdered someone and he did that offense when he was affected. This person is not only a murderer but also a drug addicted criminal. Previously, he had many criminal records and he went to prison many times. In this case, as the person was drunk, so it did not take much time to identify his crime by the police inspector. This assignment discusses how a murder can be convicted under Code of Criminal procedure (CPC), 1973[1]. As per this act, the criminals should be convicted under Criminal procedure act of Australia in the consequence of common law.

In this case, there is a victim and slaughterer. The slaughterer is a criminal who has killed the victim (Kevin Nguyen) in a very in humanistic manner. After the establishment of autopsy report of Kevin Nguyen, it was found that, Nguyen was stabbed five times in his chest and when he used his arms for defence the murderer stabbed his hands and arms also. As the knife pierced the heart of the victim (Nguyen), so he died. By the broken nose and black eye of Nguyen, it can be identified that, Sutton brutally murdered Nguyen after hitting him with punch for several times. When the police did investigation of the body, he found a man in Hyde Park whose shoes were stained with blood. This gave the police idea that man may be the murderer of Kevin. He was Sutton. He did not answer the question of the police properly but when the police warned them that they will do investigation in his house, and then he revealed the truth that he has killed Kevin because Kelvin has stolen Sutton’s drugs.

All the proof described that Sutton is the murderer but twist came in a part when Sutton said that, he has not stabbed or used any knife to kill Kevin. There are some eye witness who saw the fighting of Kevin and Sutton; they are Jack and Stretch, two homeless alcoholic. Stretch said that, when the fight was going on, there was no knife in the hand of Sutton. So it cannot be clearly said that he is guilty.

In this case the police should properly investigate about the case with the help of Criminal procedure act of section 99[2]. As per this act legal investigation is done by collecting evidence and by finding out the real murderer. Committal proceedings should be done to find out the accused person and apply divisions on the case to punish the guilty person[3]. The police have recorded the words of Sutton, when he was revealing the truth. As per section 289D of Criminal act, the recording which was done by the police should be presented to court but problem arises because the interview was taken when Sutton was in drunken condition. So, the police have not got the total evidence against him and for that reason he cannot be proved as accused, even there are some witness Jacko and Stretch who told that Sutton has only fought with Kevin but not killed him; he had no knife in his hand when the fight was going on. So it can be clearly understood that the culprit is someone else who murdered Kevin.

As Sutton is not responsible for the death of Kevin, so he can for something to defence his case. Firstly it is necessary that, he should take help of a criminal defence lawyer who can help him to win the case. A criminal defence will first do an appeal to the court, so that he can get more time to find out the actual accuser. The offender appeal against the conviction of Sutton should be done to Director of public prosecution (DPP) and if the appeal is rejected from the court, then the civil defence can appeal the case to high court of Australia[4]. For the appeal hearing evidence is needed to be given by the lawyer in Victim Impact Statement where the lawyer can use Jacko and Stretch the two witnesses who knows that Sutton only had fight with Kevin and he did not killed him. After that, legal and technical discussions can be done where the court decides, whether the appeal should be given or not with appeal hearings. It is the right of the offender, to appeal against the conviction or guilty verdict. The hearings take place in the Court of appeal. Two things can happen if the lawyer appeals for the conviction of Sutton. Whether the appeal can be dismissed or the appeal can be allowed for Sutton by the justice from the court. It is very important that Witness Assistance Service (WAS) should be used and witnessed are brought to court who can talk on favour of Sutton to save him from the allegation which he has not done.

There are some ways by which the criminal defence lawyer can fight for the case of Sutton. As per Australian law, if a person has really murdered someone and it is proved then he will be sentenced to life time imprisonment under Criminal act, 1900 of NSW state law for a 20 or 25 years non-parole period. But if he has not murdered anyone but still he is imprisoned, then the defence lawyer can defence under section 23 of Criminal Act 1900. Under this remedy the lawyer can save Sutton but he has to find appropriate proofs to save him and he also has to find the real culprit who has killed Kevin. It is mandatory to be proved that the electronic recorded proof against Sutton was wrong because he stated wrong answers in fear and at that time he was in drunken and drug addiction, so his words cannot be trust. It can be said that he has stolen the blood engrossed shoes of Kevin while fighting was going on but he has not killed him because the knife was not present with him. Not only that, but the knife is missing with which the murder was done. So the criminal defence can charge the civil lawyer or his client to find the knife first with which the murder was done, then with the finger print it will be proved that who has murdered Kevin. Even the criminal defence lawyer should also find out the clue by talking with the friends and relatives of Kelvin and he need to find out who were the friends and enemies of Kevin. As Kelvin was addicted with drugs, so it is assured that his friend’s environment is not good, so any of his friends, enemy or a person related to him can kill him. As Sutton is wrongly imprisoned, so it is very important that guilty confinement procedure should be adopted by the defence lawyer and on the basis of that procedure, extra time should be appealed from the court for Sutton. When the lawyer tried to find witness, Stretch said Jacko had died because of overdose of drugs, but Stretch gave witness that when the murder took place, at that time Sutton was with Stretch, drinking at the end of the park. A fighting took place between them but after the fight also, Kevin was alive, so it is very necessary to collect the evidence and the witness and presented to court by the defence lawyer, to prove Sutton innocent. In the case of Sutton, the lawyer can also do presumption of innocence[5]. It is the legal duty of the lawyer to find out the proof with criminal trial. Under article 11 of Human right act, in the principle of common law, it is the right of Sutton, that he get chance to prove his innocence[6]. So as the case of Sutton is complicated and no result and declaration of the case is easily available, so the defence lawyer needs time to find out the actual culprit. From the case, it can be clearly identified, that the actual culprit is very clever who has not kept any proof against him; even the knife with which the murder took place was also hidden by him. So it was hard for the lawyer to find out the actual person who has convicted the crime[7]. Various legal procedures are needed to be applied and as per Bail act 2013 of NSW under section 23, Sutton can be executed from imprisonment for some times and during that time the defence lawyer has to find out the actual culprit who is responsible for the death of Kevin.

If the actual culprit is find out then, Sutton will be escaped from imprisonment nave the allegation and the actual culprit will be either sentenced death for misrepresenting law or he can be imprisoned for life time till death of 2 years imprisonment under Criminal act 1900 under section 3[8]. All the process of investigation should be done by the defence lawyer by hiring an investigator who can investigate about the case properly following the Criminal procedure code.

In the appeal of conviction, under section 118 notices can be given in appeal and on the code of section 668D (1) (b) the judge trial notice can be given and under section 74 the convicted person can be saved by the defence lawyer[9]. The obligation may arouse because some evidence are against Sutton, such as the blood stained shoe, the place where he was present, the reveal of his own crime etc. It is hard to prove that he is innocent but as per section l72 (2) the defence lawyer of Sutton has to right to get some time and fight against the conviction under which allegation is given to him and if the right culprit is identified then Sutton can Save himself from the allegation[10]. It is the prior responsibility of the defence lawyer to investigate and find out the main culprit[11]. By this way Sutton can appeal conviction and there is chance to prove him innocent.

This case can be solved under this acts and sections which the defence lawyers can use and if the proper justification of the case is done then Sutton can be saved from the wrong allegation which is given on Sutton. The witness, evidence and various other procedures can help the defence lawyer to find out the real culprit and save Sutton. By this way the real culprit or murderer of Kevin can be identified by the criminal defence lawyer and this can help him to get away from the wrong allegation and rescued.

Arenson, Kenneth J et al, Australian Criminal Laws In The Common Law Jurisdictions (Oxford University Press, 2011)

“Australia: Criminal Procedure” (2009) 35 Commonwealth Law Bulletin

Downing, Jerry N, Between Conviction And Uncertainty (State University of New York Press, 2000)

Findlay, Mark, Stephen Odgers and Stanley Meng Heong Yeo, Australian Criminal Justice (Oxford University Press, 2005)

Jefferson, Michael, Criminal Law (Pearson Longman, 2007)

Marat, Allan, Review Of Committal Proceedings (Constitutional & Law Reform Commission, 2007)

McDonald, Gabrielle Kirk and Olivia Swaak-Goldman, Substantive And Procedural Aspects Of International Criminal Law (Martinus Nijhoff, 2000)

Siegel, Larry J and Joseph J Senna, Essentials Of Criminal Justice (Wadsworth Cengage Learning, 2009)

The Human Rights And Conditions Of The People Of East Timor, September 1983 (Australian Government Pub. Service, 2001)

Wells, Celia, Corporations And Criminal Responsibility (OUP Oxford, 2001)