LAWS1014 Lecture Notes - Lecture 6: Mental Health Court, Procedural Law, Therapeutic Jurisprudence
16 May 2018
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WEEK 6: Criminal Laws and Procedure in Context
MAJOR ISSUES – potential essay QS
• The criminal process is riven with discretion at every stage
• Statutory provisions governing criminal process are not simply prescriptive, but act as a guide
and a resource to decision making
• Two tiers of justice:
This term highlights the significant differences between summary justice
administered by magistrates and higher court justice administered by judges
McBarnet argues that one tier, the higher courts, ‘is for public consumption, the arena
where the ideology of justice is put on display.’ On the other hand, the lower courts,
‘is concerned less with subtle ideological messages than with direct control.’
• The process as punishment:
There is supposed to be a clear idstinciton between pre-trial processes which are seen
as investigatory ro administrative, and trial processes. However, there is not such a
clear distinction at times
Punishment in the form of arrest, detention, denial or bail, etc, actually precedes
formal legal adjudication of guilt
Particularly, in relation to summary justice, where the penalty for many offences is a
monetary one, the pre-trial processes are more signficiant if they are a punishment,
than a potentially legally adjudicated penalty
• The invisibility of pre-trial processes
Extensive exercise of police discretion in carrying out pre-trial processes is often not
judicially supervised
Police roles in practice do not emrely involve the ‘finding’ of evidence, but have a
role in constructing cases by setting aside evidence, for example, which may not be
relevant. Yet such practices are hardly known
Need to render such crucial pre-trial criminal justice processes more visible
• Technocratic justice: the drive for efficiency: p 261
• Therapeutic jurisprudence and procedural justice:
Wider trend towards non-adversarial forms of justice
Domestic violence courts
Mental health courts
Drug courts
Youth justice conferencing, other ‘restrorative justice’
• Elements of a fair trial
Trial by jury
The right to legal representation
Impact of remand conditions
The concept of an oppressive trial
The fair conduct of a trial
Alternative verdicts
The intersections between human rights nomrs and the presumption of justice
• Miscarriages of justice:
Police malpractice
Media prejudice
Inadequacy of appeal processes
Dangers of reliance on certain forms of evidence such as expert, forensic, eye witness
and confessional evidence
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find more resources at oneclass.com
6.1 Importance of criminal procedure
• In practice criminal procedural law controls the balance between state power and the rights of
the individual
Focus on questions of appropriate regulations in administering the criminal justice
system, e.g. laws on regulating police
The underlying question is to what degree and to what circumstances, does the state
have power to interfere with the fundamental liberties of individuals
• How should this tension be addressed? The common law says it should be informed by the
‘fundamental principle’ and the principles underlying the CJS:
The Prosecution bears the onus of proof and the accused cannot be compelled to give
evidence for the Prosecution (privilege against self-incrimination): her Honour
Justice Kiefel in Lee v NSW Crime Commission
Note the volume of strict liability offences
Historically, onus of proof was on the defendant, but rejected by House of
Lords in 1935, where the court held that ‘duty of the prosecution to prove the
prisoner’s guilt…’
The presumption of innocence is derived from common law principles underlying the
criminal justice and from the adversarial structure of criminal justice. How does the
presumption of innocence impact on criminal procedure?
Hunter, in ‘The Trial,’ says that so many elements of the investigating,
charging and trial process ---→ readings??
The ‘right’ to silence → s 89 of the Evidence Act → no inferences may be
made from an accsued person’s silence
Criminal justice actors hold extensive discretion over whether people are diverted or
proceed to court, and thus the extent of exposure to criminal justice sanctions
Powers that police have to dispense powers regarding on the spot fines
Are decisions being made at the right point in the criminal justice hierarchy
What sorts of matters are appropriately dealt with by police or by the local
court
What right does an accused person to be tried by a jury
What is needed for equal treatment by the criminal justice system
E.g. bail rules
Interrelation between criminal law and procedure
Criminal procedure affects perceptions of the legitimacy and fairness of ‘justice’
Reflecting on Tom Tyler’s study, what characteristics make procedure fair?
People’s assessments ofhte fairness of third party decision-making
procedures shape their satisfaction with their outcomes
Many diverse ideas about what should be criminalised
E.g. drug possession
Tom Tyler says despite these diverse ideas, people are usually happy with the
outcome if they feel like the way the dispute was resolved was fair. This
emphasises the importance of criminal prceodure → shapes legitimacy of
entire justice system
Characteristics that make procedure fair:
▪ Participation and resolution in the conflict → people having a voice.
➢ People feel more fairly treated if they are allowed to
participate in the resolution of htier problems or conflicts by
presenting their suggestions about what should be done
▪ Trustworthiness of authorities. Were they sincerely considering the
arguments being made? That is why courts issue judgements. It helps
build trust. If people view or personally experience the authoriites as
making decisions fairly, they increasingly view them as legitimate.
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find more resources at oneclass.com
Over time, this legitimacy shapes deference from people’s own views
on the favourability of policies and decisions
▪ Whether people are treated with dignity and respect
▪ Neutrality in justice: People need to make sure that decision-makers
are impartial
▪ The extent to which opportunities to representation were provided
▪ The quality of decisions made
▪ The opportunity for error correction
In Tyler’s view, fairness is not just important because it affects the liberties
of people, btu also because if criminal rpceodrue is not conducted in a fair
manner, it undermines confidence in the entire system
6.2 Common law principles underlying criminal justice
• NSW Law Reform Commission Bail Report: Legislative powers must be understood in
relation to existing common law principles that limit such powers, including:
The right to personal liberty
Police power to search without a warrant in specified circumstances
In Foster v The Queen, the HCA described the right to personal liberty as
‘the most elementary and important of all common law rights.’ And, ‘a
person is not to be imprisoned otherwise than… to the extetn reasonably
necessary to bring him before the justice to be dealt with according to the
law…’
International Covenant on Civil and Political Rights (ICCPR) recognises that
pre-trial detention is not to be the norm, ‘anyone arrested or detained on a
criminal charge shall be brought prompty before a judge or other officer
authorised by law to exercise judicial power…’
Redfern Legal Centre: Bail can only be permitted to limit the liberty and
presumed innocence of the accused to the extent necessary to protect against
foreseeable risks to the administration of justice and the safety of the
community
The presumption of innocence
Classic statement from WOolmington v DPP: ‘Throughout the web of the
English Criminal Law one golden thread is always to be seen, that it is the
duty of the prosecution to prove the prisoner’s guilt… no matter what the
charge or where the trial…’
Article 14(2) of the ICCPR states: ‘Everyone charged with a criminal offence
shall have the right to be presumed innocent until proved guilty according to
law.’
No detention without legal cause
A corollary of the right to liberty and the presumption of innocence is that
eveyr detention must have a legal cause
Justice Deane in Re Bolton: Ex parte Beane: ‘The common law of Australia
knows no letter de cachet or executive warrant pursuant to which either
citizen or alien can be deprived of his freedom by mere administrative
decision or action.’
Arrest as a last resort
No punishment without conviction by due process
Related to the common law’s position against preventative detention
Preventative detention is the detention of someone in custody, not for the past
commission of a crime but on the prospect that he or she may commit a crime
in the future. Generally, such a situation requires strong justification
Chester v R: ‘…it is now firmly established that our common law does not
sanction preventive detention.’
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The criminal process is riven with discretion at every stage, statutory provisions governing criminal process are not simply prescriptive, but act as a guide and a resource to decision making, two tiers of justice: This term highlights the significant differences between summary justice administered by magistrates and higher court justice administered by judges. Mcbarnet argues that one tier, the higher courts, is for public consumption, the arena where the ideology of justice is put on display. " on the other hand, the lower courts, Is concerned less with subtle ideological messages than with direct control. ": the process as punishment: There is supposed to be a clear idstinciton between pre-trial processes which are seen as investigatory ro administrative, and trial processes. However, there is not such a clear distinction at times. Punishment in the form of arrest, detention, denial or bail, etc, actually precedes formal legal adjudication of guilt.
