Week 1: Introduction and Aims of the Criminal Justice System

Question 1

Criminal Justice System (CJS)

Answer 1

The criminal justice system (CJS) is a collection of agencies that are integral to the achievability and the delivery of justice within Victoria, Australia.

Question 2

The Crime Control Model

Answer 2

The crime control model is essentially concerned with “the efficiency of the criminal process”. Under the criminal control model, an emphasis is placed on removing cases where there is a lack of evidence or an unlikely conviction as early as possible in the criminal process.

Question 3

The Due Process Model

Answer 3

The due process model is concerned essentially with “the accuracy and reliability of the decision made” throughout the criminal process. This model relies less upon the decisions made during the initial stages of the criminal process and instead focuses on the importance of ‘fact finding’ during the adjudication phase of the CJS. This model emphasises the importance of the presumption of innocence and the need for members of the judiciary to approach cases with this presumption in mind.

Question 4

Agencies & Key Figures in the ‘Criminal Justice System’ (CJS)

Answer 4

Police
* State and Federal

Courts
* The Prosecution & Defence
* The Judiciary
* The Jury

Corrections
*Prisons
*Community Corrections
*Parole Board

Other
*Forensic Experts
*Defendants
*Victims
*Victim Support Groups

Question 5

Rule of Law

Answer 5

No one is above the law

The law should be:
* transparent, reliable, consistent
* consistently and fairly applied
* appropriately scrutinised
* independent from government

Question 6

Separation of Powers

Answer 6

A doctrine that divides the institutions of government into three branches: legislative, executive and judicial. The
legislature makes the laws; the executive put the laws into operation; and the judiciary interprets them.

Question 7

Due Process

Answer 7

• Rights of those who are brought before the law
• The checks and balances of the CJS
• Justice is fair and accessible for all regardless of race, religion, gender, age and financial means
• At all levels of the CJS, due process must be upheld for everyone.

Question 8

Due Process: The Right to Silence

Answer 8

• Relevant to investigative, pre-trial and trial stage of the CJS
• Balances the rights of the accused and interests of the state.
• The police cannot compel a suspect to answer questions.
• A suspect may remain silent because of –
• Knowing their rights
• Fear of consequences
• Mistrust of the police
• The desire to protect family or friends
• Fear of reprisal from other possible offenders
• The desire to hide legal but embarrassing behaviour.
• In most jurisdictions, no negative inference may be drawn if a suspect exercises the right to silence
• But…in 2013, NSW amended their Evidence Act. Police must now caution that exercising the right to silence may be taken into account in court and a negative inference may be drawn. However, this is only for:
• Serious indictable matters
• Suspects over 18 (i.e., not minors); and
• Persons who have received a ‘special caution’

Question 9

Burden of Proof

Answer 9

• Rests with the prosecution (which is the Government) in criminal cases
• Presumption of innocence until proven ‘guilty beyond reasonable doubt’
• Limited defence disclosure
• Full prosecutorial disclosure

Question 10

Discretion of Police, Courts and Corrections

Answer 10

Police:
* Decision by victim to report offence or not
* Decision by police to investigate or not, to arrest or not, to
give a charge or warning, to use force or not.

Courts:
* OPP decides whether to run a case, which charges to bring
* Defendant decides whether to plea guilty or not guilty
* Defendant decides whether to give evidence at trial or not
* Judge or jury determine guilt
* Judge decides what sentence to impose.

Corrections:
* Risk assessments
* Classification of prisoner (Maximum or minimum security)
* Decision to release on parole
* Decision to ‘breach’ an offender on a community order.

Question 11

Accountability of Police, Courts and Corrections

Answer 11

Police:
* Limited accountability; much police work is unobserved
* Internal oversight – Professional Standards Command
* External oversight – Independent Broad-based Anti-corruption Commission (IBAC)
* Media

Courts:
* Accountability achieved through appeal
* Public and open justice – open courtrooms
* But decisions of juries cannot be scrutinised

Corrections:
* Challenging to achieve accountability within closed walls of a prison
* Privatisation of prisons = problematic for public accountability
* Mainly carried out by the Justice Assurance and Review Office (JARO)
* Some oversight by IBAC.

Question 12

Proportionality: Desert Theory and Retributive Punishment

Answer 12

• Victoria’s Sentencing Act 1991, items (a) and (d) - to punish and denounce crime - are associated with the value of proportionality.
• The core idea is that the penalty structure should reflect a relationship between crime seriousness and punishment seriousness, and that the absolute level of punishment should be in proportion to the harm.

Question 13

Deterrence, Rehabilitation, Incapacitation Theories and Utilitarian Punishment

Answer 13

• Remaining items in the Victorian Sentencing Act 1991 (b, c and e) are associated with the value of crime prevention.
• This value is embodied in deterrence, rehabilitation and incapacitation theories and utilitarian punishment.
• The major theories are: Individual and General Deterrence, Rehabilitation and Incapacitation.