Evaluate the effectiveness of the criminal trial process in managing the rights of victims, offenders & society Flashcards
Thesis Statement
The criminal trial process is highly effective in managing the rights of society, but often struggles to balance the rights of victims and offenders. The ‘rights’ accorded to each group stem from both statutory and common law, but are also based on what society judges to be morally and ethically correct. Such rights include those of the victim (fair hearing) the defendant (the presumption of innocence and fair trial) and society (the right to protection). The criminal trial process (which includes location, charges, representation and defences) is only able to effectively manage rights when they are balanced.
Court Types Topic Sentence
In terms of the location of the trial, the rights of society and victims often prevail over the consideration of the disadvantages of the defendant.
CT Positives - Different Types of Courts
- The NSW Court Hierarchy ensures that each case goes an appropriate institution
- This means that proper attention is given to cases of varying severity
- Serious offences such as murder are held in superior courts to ensure the greatest attention
- There are also specialist courts to protect the rights of the accused, such as the Children’s Court and Drug Court, that take into account the special circumstances of offenders
CT Negatives - Lack of Recognition for Indigenous Australians
- Australia’s Indigenous population had developed diverse systems of customary law for thousands of years prior to European arrival
- Today, common and statutory law processes take precedent over customary law precedent
- While Western Australia has an Aboriginal Community Court to deal with Indigenous offenders, there are no such practices in NSW
- As such, the rights of Indigenous accused are not recognised and Indigenous Australians are, per capita, the most incarcerated group in the world (27% of NSW prison population)
Plea & Charge Negotiation Topic Sentence
This is an area in which the criminal trial process effectively balances the rights of all parties
Plea Negotiation Balancing
- Plea negotiation is a more effective means of balancing the rights of victims, offenders & society
- The justice system encourages defendants to plead guilty by offering a 25% reduction on the prison sentence if the plea is entered in the local court before committal
- This protects the rights of victims by sparing them the ordeal of giving evidence
- It balances the rights of society by avoiding the costs and time of expensive trials
- It gives the offender an opportunity to express remorse and reduce their sentence but also places pressure on them to admit guilt
Charge Negotiation Balancing
- Charge negotiation is another relatively effective means of achieving balance in the trial process
- This is when the accused agrees with the prosecution to plead guilty to a lesser charge in exchange for higher charges being withdrawn
- This balances the rights of society by securing convictions at a lower cost and with less time
- It protects the victim by securing a conviction and recognising their loss BUT some victims may feel aggrieved that the offender is not charged with a higher crime
- This balances the rights of the defendant by giving them the option to reduce their punishment BUT puts great pressure on them to plead guilty and forfeit their right to trial
Right to Representation Topic Sentence
The limited legal representation opportunities for the accused demonstrate the failure to manage rights equitably, and a slant towards the victim & society
Right to Representation Points
- This is an area in which the rights of the accused are not protected
- Victim’s cases are always prosecuted by the state, in an attempt to protect the interests of the victims and wider society
- For the accused, here is only a limited right to legal representation in Australia, established by the High Court in Dietrich v the Queen (1992) - only applicable to serious indictable offences
- For all other offences, the quality of legal representation will depend on the amount defendants are able to pay
- In 1979, the NSW government created the Legal Aid Commission under the Legal Aid Commission Act 1979 (NSW)
- It provides legal assistance & representation to socially & economically disadvantaged individuals
- However, to access Legal Aid, defendants have to undertake both a means and a merits test, assessing their income and assets to determine whether or not they have the means to pay for legal representation
- In 2015, The Productivity Commission released a report estimating that only 8% of Australian households were eligible for Legal Aid, despite over 14% living below the poverty line
Defences to Crime Thesis
The defence of provocation available to the accused is an area in which the rights of the offender to a fair trial can be seen to infringe on the rights of the victim to just compensation
Provocation Points
- Provocation is a partial defence in which the defendant claims their actions were a direct result of the victim’s actions, which caused them to lose control and commit the offence
- For provocation to succeed, the accused must be able to prove that they acted in a way any ordinary person would have in response to the circumstances
- In NSW, provocation can only be used when attempting to have a murder charge reduced to manslaughter
- Provocation is a controversial defence, as it implies that the victim had some level of responsibility for their death
- Provocation as a defence has been abolished in WA, Victoria & Tasmania, but still exists in NSW
- It has been used in some cases to defend husbands killing their wives, such as the case of R v Singh (2007) in which the defendant killed his wife after she threatened to leave him - reducing his sentence to manslaughter and only six years non-parole
- Cases such as these have led many women to claim that the law on provocation is outdated and protects the interest of male offenders over female victims
