LAWS1021 CRIME Week 3 Class 1

LAWS1021 – CRIME – Week 3 Class 1

1. introduction
2. Ubiquity of discretion
3. Regulating discretion
4. Prosecutorial discretion
5. The Chaser case
6. Two tiers of justice
7. Magistrates and Local Courts
8. Supreme and District Courts
9. High Court appeals
10. Crown appeals

From Last Class

Jurisdiction
Notion of how it is risen and how it is imposed
In 1788, assumed, put upon Australia from the act of colinisation
Sovereignty
From british states, then Australia as a commonwealth
Citizenship
General entitlement to rights protection etc.
Sovereign domain
Different for indigenous people, given no acknowledge of land ownership and traditional rights and customs as well as traditional rules
Agency
Autonomy as a group/individual
The capacity whether individually or collectively to exercise authority to determine
Previously denied
Criminalisation of traditional
Welfare
protection

OOXX case grew up during a time during hard economic circumstances with weak communal support due to governmental policies.
Lost a sense of identity when doing institution until he's about 19. He was separated from his family by the Australian welfare system. forced removal
Post-war assimilation eventually breed out abo blood from the society
Process of catagorisation based on the portion of abo blood vs. European heritage
Targeted as half-cast or anyone with part-euro heritage
Systemic harm of forced removal
Negative relationship between police and abo people from the early stage
Institutional harm
John Howard defended such system, because that’s why people believed was the right thing to do at the time
Outcomes generated from interventions
Restriction on alcohol
Welfare rationing
“Blanket bans” army/AFP/ACC presence
ADA provision was suspended
Record number of Child removal
For child protection due to NT child assaults
Indigenous domain
Fluid spaces
Negotiated compromise

[page 123-127]
French post-structavolist philosopher
Power/knowledge
Discipline + punish
Dispersed form of power
Modes of regulation
Target populations
Private security companies
Insurance policies
Agreement
Agency
ASBO?
“non-serious” young people civil order/behaviour curfew association ban from uniform/dressing

Criminal Process (1)

risk discretion notion of 2 tiers of justice

how was this particular evidence brought before the court? Is this the only available evidence? Is this charges the only one that applies? Other narrative aside from the one provided by the prosecutor?

Drug courts

What does a fair trial mean?

Police powerpolice stationcharge/bailremanded into police custody/bail to attend court

Local courtBailRIC
DPP reviews evidence

Committal

Pre-trial hearings (disclosure of evidence,disclosure for offence )
District court

19th MARCH continues
Attempts by gov to put in place regulatory frameworks for discretion in decision making
The notion of fairness.
Is open and accountable? Equal in a broad way?
Is it efficient?
LEPRA 2001

Young offenders act 1997
Diversionary scheme
Steer young people away from the court system
Avoid prosecution or criminal record
Through warnings]formal record kept for policing, cautionsalso allow courts to access, youth justice conferencesconference is kinda like reparative justice [3 levels of warning
Relatively minor offences
Shop lifting
Offensive conducts
Young people who get involved in the early age, tend to stay there if they are ever forced to participate in the criminal system
Such scheme is trying to avoid such problem
Police in charge of this process
Regional difference for police attitude
The option of caution was not used in many parts of the state
On-going planetary

CHASER CASE  Discretion in the criteria for prosecution [page 268]
Established criminal agencies to break the link between police having all prosecution powerto create a more consistent and transparent approach to the conduct of prosecution
DPP
E.g. in the UKcrown prosecution services
Issue guidelines periodically
Page 268 Shawcross: must be in the public interest
Reason for the DPP not to prosecute these people in the chaser case[page 269-271…]
Strict liabilityassumption of guilt (unless honest and reasonable mistake fact)
They were under the impression that with such high level security they wouldn’t be able to access this prohibited area given their poor makeup and props
Unusual for the DPP to discuss this in public
Linage between fairness and public interest
[page 272]

magistrate and local courts [p.273-]
MUNDAY v GILL
Indictment
Crown/state (e.g. R v Smith)
Summary level
Magistrate/ “peace”
One individual versus another
Less serious
Magistrate courts in NSW (brought from the UK) got considerable power – public regulation (much more substantial role in the society)now usually covered by local governments
Historically, there’s a distinction between lay magistrate and stipendiary magistrates
The former one usually has no legal trainings and was advised by the court
To integrate society with the court system
The latter one is a full-time professional
Preside over Summary offences or indictable offences (by committal to the higher court OR heard summarily)
Heard in the magistrate sentencing usually lower
Very fastmay not be the best place to argue a case giving the limited time
Question of judgement giving no jury
In recent year, there’s quite an expansion in the indictable offences heard in the magistrate courts in NSW
Committalweather or not there’s a chance of conviction for the court [page 275]sort out the cases and ensure serious and possible cases are convicted after trial
Quite often people go to committal undefended
Weakness in committal
Committal nowadays is more of a paper exercise, but a historically important part

District & Supreme court
[page 279-280] brake down of basic types of appeal the success rate is quite high (over 1/3)
Lawyers potentially matter in appeal
In crown cases, if its not allowed, it usually cannot be challenged again double jeopardysuch mechanism has been challenged a lot in recent years

D McBarnet
Two tiers of justice
Separation of power
Link between due process and public level
No really public intervention in the process
On summary level, the court is not really accountable
Triviality
Too trivial for public consumption
Public perceptionusually go to district and supreme court cases
Accused
Important to accused themselves
Structure high level of disengagement
More serious cases are more complex in terms of law????
Its about construction, the facts are simply because lawyers make it simple
Significant discrimination against people who appear in front of the magistrate courts

Welsh
New offences particularly strict liability
Even tho laws are strict forward, they can often be very complex
Considerably change in the attitude of lawyers
New generation of students coming through
Assumes that some of the new minor offences are not that complex
Change in context

READ THE CONTEMPORARY AUSTRALIAN RESEARCH WEBSITE
Various types of demina [page 294]
Increasing number of women magistrates

Carlen
(main focus) the architecture of the court room social architecture of the court not technical sitting high staring down at the court new courts have high security system limited room for lawyers to move reflective of the power notion of degradation ceremony