CRIM2020 Lecture Notes - Lecture 6: Jodhi Meares, Due Process
Week 6: Two Tiers of Justice
Why did we hear about Jodhi Meares appear in the local court on a charge of high end
drink driving but not another person? How does Doreen McBarnett explain this?
• Basic argument
o Distinction lower/higher courts
o Separation of power arguments
• Short circuiting of justice in lower courts
o Nobody is paying attention
o Moves very fast
o No time to hear everybody's arguments
o Due process in lower courts ruled out as unnecessary on 2 grounds:
i. Ideology of triviality
ii. Legal relevance: most cases don’t require it
• Features of Magistrates Court
o Trivial offences and penalties
o Lack of due process
o Law v. Facts
o Less visibility
o Complex facts need lawyers v lawyers can make facts complex (local courts)
• Are these findings still relevant in NSW?
Why are the Local Court matters more complex now than in previous times?
• Welsh, Are Magistrates Courts Really a 'Law Free Zone'
• New summary
• More lawyers
Why are some of the major constraints on Local Court Magistrates in Australia in
dispensing 'justice'?
• 96% of all criminal matters in LC
• Time
• Multitasking by Magistrate
• Goals of Magistrate
• Limited opportunity for 'special dialogue'
Judicial Behaviour
Ideology of Adverserialism. What flows from this?
• Detached impartiality
• Reactive judicial participation
What effect do various demeanours have on the judicial process?
• 5 types of demeanours
o Welcoming and good natured (1.5%)
o Patient and courteous (16.3%)
o Routine, businesslike or impersonal (74.2%)
o Impatient, rushed, inconsiderate or bored (6.2%)
o Harsh, condescending or rude (1.9%)
What is impartiality? How do magistrates show impartiality?
• Keeping an open mind and not pre-judging a situation
• Active v passive engagement
What should be the role of emotion in Judge craft?
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