Greatest Impacts on the Criminal Justice System in Australia - Research Paper Example

Greatest Impacts on the Criminal Justice System Introduction The criminal justice system in any jurisdiction is said to be an instrument which innocent citizens use and depend on for protection. According to O’Brien (2007), the accused relies on this system to absolve him if innocent or for a conviction if found guilty. O’Brien adds that this system also provides for the rehabilitation of a person who has chosen a wrong path. Moreover, victims rely on such a system to solve crimes and to penalise wrong doers. Overall, the criminal justice system is believed to restore peace, security and prosperity in any place. One would ask, however, what exactly has the greatest impact on the criminal justice system and whether the factors are internal to the system or wider than its scope. This paper aims to answer this question by first explaining the criminal justice system, specifically in the Australian setting, and providing an analysis of the different factors that affect the system, with a conclusion at the end. Criminal Justice System in Australia The criminal justice system in Australia comprises “the State/Territory and Commonwealth institutions, agencies, departments, and personnel” which are accountable for the justice portion of a crime, the persons accused or convicted of a crime and the victims thereof, and such other related issues and processes (Graycar & Grabosky, 2002, pp. 26-27). Generally, two criminal justice systems exist in all states and territories in Australia: the federal criminal justice system, covering “offences against Commonwealth laws”, and the relevant state system, involving “offences against State laws” (Graycar & Grabosky, 2002, pp. 26-27). “The federal, State and Territory police, the National Crime Authority, the courts and State and Territory corrective or penal services” mainly administer criminal law in Australia (Graycar & Grabosky, 2002, pp. 26-27). Federal offenders are provided with corrective services by relevant state or territory agencies (Graycar & Grabosky, 2002, pp. 26-27). The so-called “independent legislative powers” are vested with these states and territories, except those particularly lodged with the Commonwealth of Australia (Graycar & Grabosky, 2002, pp. 26-27). That which principally regulates the daily lives of most Australians is founded on statute law and common law of the eight states and territories (Graycar & Grabosky, 2002, p. 28). These are said to “have powers to enact their own criminal law”, whilst the authority to enact laws and penalties or sanctions for criminal offences are lodged with the Commonwealth relative to its other tasks under the Constitution (Graycar & Grabosky, 2002, p. 28). In effect, Australia therefore has “nine different systems of criminal law” (Graycar & Grabosky, 2002, p. 28). The criminal justice system is also composed of different agencies performing tasks in a broader scope, wherein incidents of criminality and offenders pass through different stages (Graycar & Grabosky, 2002, p. 28). For instance, the responsibility for deterring, finding out and investigating crimes are lodged with police agencies, which are tasked to prevent, detect and investigate crimes (Graycar & Grabosky, 2002, p. 28). The police may bring an alleged offender before the criminal courts composed of the judicial officer, and a jury in the case of higher courts (Graycar & Grabosky, 2002, p. 28). As part of the criminal justice system, the prosecution and the defence resolve whether the defendant is guilty or innocent (Graycar & Grabosky, 2002, p. 29). The legal representatives of both the prosecution and defence are also involved in the court process (Graycar & Grabosky, 2002, p. 29). Police prosecutors handle cases of less serious nature before “courts of summary jurisdiction”, while Crown prosecutors manage the prosecution of cases which are more serious in nature at the level of Supreme or Intermediate (District or County) court (Graycar & Grabosky, 2002, p. 29). Legal aid may also be offered to take on cases for the defendants (Graycar & Grabosky, 2002, p. 29). The Court may sentence an accused once the hearing of charges is terminated and there is finding of guilt (Graycar & Grabosky, 2002, p. 29). The sentence imposed may include “imprisonment, community work of various kinds, fines, or bonds” (Graycar & Grabosky, 2002, p. 29). Moreover, some so-called “home detention or work outreach camps” have been introduced as penalties in some jurisdictions managed by the correctional agencies (Graycar & Grabosky, 2002, p. 29). Generally, the penalties imposed by courts are mostly “fines and bonds” (Graycar & Grabosky, 2002, p. 29). The special tribunal usually handles the compensation for those victims of crime who demonstrate that there was “an injury or suffering” resulting from the criminal act (Graycar & Grabosky, 2002, p. 29). The state is charged with seeking these funds from the identified, convicted and responsible offender (Graycar & Grabosky, 2002, p. 29). Other Factors Apart from the criminal justice system itself, a number of important issues affect the parties to court proceedings. These include the effect of a legal problem on the emotional wellbeing of a victim, finances of the victim, their personal relationships and even their health. Other problems adding to the legal problem may include disputes among neighbours or business partners and their resulting inability to correspond to each other; family dysfunction; past trauma or financial troubles that have remained unresolved; and those that affect communication between litigant parties (King, 2008). As commented by King, a senior lecturer at the Faculty of Law at Monash University, courts have often focused on “fact-finding, determination of the law, applying the law to the facts via rules of evidence, court procedure, statutory interpretation and case law” which are said to be important to a court’s performance or operation (King, 2008). However, this omits the emotional implications, which may also be part of the criminal justice itself. Although a number of judicial officers have a “more personable approach,” most lawyers and judicial officers neglect to consider the emotional effects that legal processes have on concerned persons (King, 2008). This failure may be said to “compromise court processes” (King, 2008). For instance, courts have frequently permitted cross-examination of child victims or complainants to be extensive and even intimidating at times, which may be far from their capability, either intellectually or emotionally (King, 2007). The practice includes the use of “complex language and concepts” which are usually beyond the normal level of a child’s development stage, using repetitive questions and sometimes asking questions in a humiliating manner (King, 2008). A child’s silence or approving a suggestion posed by a counsel, which may be part of a child’s coping strategies, could be interpreted as “evidence of lying” (King, 2008). This process can invalidate even truthful fact-finding (King, 2008). Further, the child’s belief in the justice or court system can easily be ruined (King, 2007). Victims of child sexual abuse may also prefer not to report such incidents, especially if they know that courts would disregard their emotional wellbeing or apply processes that may prejudice them in relaying the incident they experienced with integrity (King, 2008). Although it is usually a procedure that the defence side of a case “test their evidence”, it should not compromise the truthfulness of court processes and the due respect it owes them (King, 2008). Hence, therapeutic jurisprudence has been suggested to promote “a less traumatic experience” for child victims and still maintain integrity at trial (King, 2008). In one study, a judge who took a therapeutic approach in a domestic violence case where “active interest in participants and their well-being” was demonstrated, the participants’ esteem for the judge was heightened (Petrucci, 2002). Another exploratory study found that there is certainly an effect on the defendants’ compliance to treatments and abstinence from drugs if there is judicial interaction with the said defendants (Senjo & Leip, 2001). Furthermore, a focus group study on certain participants in a drug court revealed that there was noteworthy support for the judicial role in the promotion of a participant’s welfare and compliance to treatment (GoldKamp, et al., 2002). The judicial officer has a vital role, especially in balancing the “breach of program conditions” and sensitivity to a participant’s emotions (King, 2008). Participants may have a concept of their own failure or may refuse rehabilitation if the approach to them is insensitive (King, 2008). Conversely, a sensitive approach may help participants “work through their emotions and resume progress” (King, 2008). In Des Rosiers’ (2000) analysis, she recommended that therapeutic judgements have various effects which include manifest the attention and empathy for the parties’ state; educate parties regarding the necessity to listen and respect other parties’ positions; encourage positive aspects of the continuing relationship of parties and their own capability to resolve future conflicts; analyse the parties’ positions without damaging them as individuals; and enable the “use of language that supports the losing party’s reception of any decision”. These not only affect parties involved in the dispute, but also the judgement of judicial officers, especially in cases of appeals (King, 2007). A lawyer also has an effective role in approaching their client’s case by not only focusing on the traditional “facts of the case, the applicable law and the possible legal outcomes”, but also considering the therapeutic jurisprudence approach (Wexler, 2008). In handling cases and in truly attaining criminal justice for a client, the lawyer must consider their client’s “health, economic, vocational, familial, social and, even spiritual domains” (King, 2008). Hence, the lawyer should first understand the emotions and the psychological issues of a client to help resolve any legal problem (Winick, 2000). Without a resolution of the emotional issues of a client involved in a legal problem, prolonged litigation and even a legal dispute may result (Silver, 2007). The lawyer’s role is therefore especially important regarding the support given to the client (King, 2008) and can be the source of a client’s encouragement during difficult times (Potter, 2006). Lawyers also help in making clients understand the implications of pursuing litigation and the success of a case, particularly for clients who are still angry and certainly want to pursue such a case (Winick, 2007). Moreover, lawyers should clearly discuss the options available to a client to resolve any legal problem (King, 2008). These available options may then be applied in the community, workplaces or in education which are very valuable to clients and other people concerned in the case (O’Connell, et al. 2007). Additionally, although a lawyer usually does what the client instructs, their accountability in providing “authoritative advice and implementing strategies” should not be set aside (King, 2008). With this, both the judicial officer and the lawyer can effectively resolve legal problems by understanding the emotional and psychological issues of the client or participant (King, 2008). Judges and lawyers must avoid not to “colour their actions” and must always be aware of their feelings and influences so as not to hinder “their professional responsibilities” (King, 2008). The ability to understand the emotional issues involved is important especially in “negotiating and resolving controversies” (Silver, 2007). Most of what is taught in law school takes an adversarial approach to legal problems, which leads to unsettled cases with trial and appeal proceedings (Kerper, 2008). Although a “more human dimension” has been introduced into legal practice, the adversarial method is still the central philosophy in the present legal education (King, 2008). Non-adversarial modes in legal education should thus be taken into consideration to promote the resolution of legal problems (King, 2008). The National Judicial College of Australia has included “therapeutic jurisprudence in the national curriculum” to encourage the professional development of Australian judicial officers and which in turn have a significant effect in achieving criminal justice (Roper, 2007). The role of criminal legislation affects the criminal justice system. In Australia, the parliament is claimed to have an “increased legislative powers and an all-powerful executive government”, including the political will to apply such powers (Fairal & Lacey, 2007). The effect however is that the “basic and fundamental freedoms” are said to have been eroded (Fairal & Lacey, 2007). Politicians were claimed to “have an agenda” and are most often than not agreeable to trading their so-called “hard-won privileges and freedoms” in exchange for short-term advantage (Fairal & Lacey, 2007). Moreover, the latest legislative measures were asserted to be a “threat to human rights” (Fairal & Lacey, 2007). With this kind of legislation, Australian judges are unable to avert unjust human rights as the federal legislation itself is ambiguous (McHugh, 2007). Hence, legislation can either serve to protect the rights of people or further disadvantage the people. Danger to human rights and fundamental freedoms were said to be the result of the control of the executive branch of the government over the parliament that is further buttressed by the bureaucracy (Fairal & Lacey, 2007). It was contended that the Cabinet has such significant influence on the prime minister and hence over the parliament (Fairal & Lacey, 2007). Hence, calls for having a Bill of Rights were made to provide protection of rights in Australia (McHugh, 2007). This would also be a standard used by the High Court, especially in assessing different measures and respond to threats of terrorism without giving up fundamental freedoms (Fairal & Lacey, 2007). Finally, how litigation is being conducted, especially regarding class actions, also affects the criminal justice system (Murphy & Cameron, 2006). Class actions were intended to “facilitate the aggregation of multiple claims” and “improve efficiency by combining similar claims” which in turn enhance the “access to justice” by providing means to litigate small claims (Murphy & Cameron, 2006). The legislative aim of this is to achieve efficiency and access to claims, which r has not been entirely achieved (Murphy & Cameron, 2006). Some of those that have hampered these aims are the “adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class communication issues” (Murphy & Cameron, 2006). There is still an attitude that class actions are related to “lawyers with ambulance chasers” and predicting without any analysis or evidence “a flood of litigation” (Murphy & Cameron, 2006). Litigation practices which are traditional in nature have impeded “access to justice and efficiency” of class actions (Murphy & Cameron, 2006). A close judicial supervision therefore is needed to achieve this goal, as the procedure has an effect of handling several cases more efficiently rather than having cases remain unresolved (Murphy & Cameron, 2006). Case management and sensible attitudes of the bar and the bench are a significant addition to the procedures that have often been used and will resolve legal problems more efficiently (Wilcox, 1996). Analysis and Conclusion As can be seen from the above discussion, the criminal justice system in Australia comprises the different agencies in the government and the processes or procedures that are followed. Each agency has its own responsibility and tasks to ensure the effectiveness of the criminal justice system. However, the criminal justice system is not only confined to such internal procedures, but also to factors which include the legislative measures that ensure the protection of the rights of individuals, the judicial officers and the lawyers’ approaches towards their clients, legal education, the role of the clients, and their interrelations. Without each participant fulfilling their important role in the system, the entire system in turn will not work effectively to achieve the goal of justice for either the victim or the accused. Legislative measures also provide a standard and guidance on how to rule on the different issues involved in a case. Hence, its clarity is important, especially if it is to be enforced by the courts. Furthermore, the management, supervision and the attitudes of the judicial officers and lawyers greatly affect the early resolution of cases. If those in charge with dispensing justice have a negative attitude towards participating parties, both the victim and the accused, then this may affect the restorative or rehabilitative justice which forms part of the aims of criminal justice. There must also be an innovative mechanism so that cases may be disposed of effectively without compromising the rights of both the victim and the accused. Caseloads should therefore be managed properly and efficiently if justice is to be served. To sum up, the criminal justice system comprises a wide range of intertwined factors, and not just one single factor. If the criminal justice system is to work efficiently in any jurisdiction, these factors must therefore be taken into consideration and a deeper understanding of the issues involved must also be present. References Des Rosiers, N. (2000). From Telling to Listening: A Therapeutic Analysis of the Role of Courts in Minority-Majority Conflicts. Court Review, Volume 31. p. 55- 59. 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