14/02/2014. Legislation Courts and Policing Essential Reading(s) Mills, B.(2011) The Criminal Trial The Federation Press: Melbourne

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1 COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING This material has been copied and communicated to you by or on behalf of the University of Western Sydney pursuant to Part VA and VB of the Copyright Act 1968 (the Act) The material in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be subject of copyright protection under the Act. Legislation Courts and Policing Week 1 Chapter 1: The Court System & Chapter 2: The Adversary System Essential Reading(s) Mills, B.(2011) The Criminal Trial The Federation Press: Melbourne Week 1: Ch. 1, pp. 3 5 & Ch. 2, pp

2 Lecture 1 The introductory lecture of this series is about: The Court System The Adversary System The Rule of Law Dicey ( ) stressed three characteristics of the rule of law: 1. The law applies equally to all in society; nobody is above the law 2. Nobody is subject to punishment except for a definite breach of the law as determined by the courts 3. The courts are independent and not subject to political interference or control in making their decisions (Thomas 2000, p.94) Thomas, G. (2000) Introduction to Political Philosophy Duckworth: London High Court of Australia Federal Court System Federal Court of Australia (Australian Competition Tribunal, Copyright Tribunal, Defence Force Disciplinary Tribunal, The Industrial Relations Court of Australia, and Federal Police Disciplinary Tribunal) Family Court of Australia Federal Magistrates Court (Mills 2011,p.3) 2

3 Tribunal Has Not Acted in 7 years Susan Kiefel is approaching the end of hertwo yeartermaspresidentofthefederal Police Disciplinary Tribunal, but it is unlikely she will herald the job on her CV. It's not that Justice Kiefel, Queensland's first woman QC and a likely candidate for a seat on the High Court, has done anything scandalous. It's that she's done nothing at all no cases, no inquiries. It's not her fault, but that of Australian Federal Police Commissioner Mick Keelty who, it appears, would rather sack, demote or marginalise AFP officers behind his own closed doors than in the public glare of Justice Kiefel's tribunal. On its website, the tribunal sounds rather grand, with a deputy president, a registrar, and deputy registrars in every mainland state. Its annual report says it conducts disciplinary proceedings on referrals by the AFP Commissioner against AFP officers, and undertakes inquiries at the behest of the federal attorney general. In fact, it has not heard a case since 1999, although it dutifully produces annual reports each year saying it has done nothing. A spokesman for the AFP said the force preferred to handle disciplinary matters internally, through an "administrative" approach. But the chief executive of the federal police union, Jim Torr, and a lawyer who has represented AFP officers who claim victimisation, Jason Parkinson, says the real story is that AFP commissioners have wanted to avoid washing their dirty linen in public. Mr Parkison says the AFP's continued refusal to go to the tribunal has forced him to mount expensive civil actions through the Federal Court. In one case in 2001, in which Mr Keelty was a respondent, Mr Parkinson successfully overturned a "managerial" decision by the AFP to recall an officer, Christopher Eaton, from a secondment to Interpol in France. The AFP alleged that Mr Eaton, an experienced and decorated officer, had made improper use of the internal system. Mr Parkinson said it was a case where "some bloody policeman finds you guilty". In a damning judgment, judge James Allsop ruled that the AFP had denied Mr Eaton procedural fairness and natural justice. Mr Parkinson said the case, which took seven days and cost $100,000, could have beendealtwithforafractionofthetimeandcostinthe tribunal, whose website says hearings are to be conducted with maximum expedition and minimum "formality and technicality". The federal Opposition is concerned about the non use of the tribunal. "There should be an open and transparent system so both the police and the public can have confidence in a process that is fair for all," Labor justice spokesman Joe Ludwig told The Australian yesterday. Theonlytimeinthepastsevenyearsthetribunalactuallydidsomethingwas in 2003 when it held an inquiry into "the desirability of adopting a managerial or administrative approach... rather than a disciplinary approach". The inquiry found the tribunal should be abolished. Higgins Ean (2006) Tribunal Has Not Acted in 7 years. The Australian,20 March. State Court System Superior Courts Intermediate Courts Low Courts Special Courts and Tribunals 3

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5 The Courts A key area of law making is the courts themselves, through the establishment of precedent, that is, decisions made by judges, that subsequently become binding in the determination of future cases of a similar nature heard in courts of equal or lower standing in the same jurisdictional hierarchy. Decision in other Australian jurisdictions or common law countries are persuasive, rather than binding An important matter to consider is that although Australia s criminal laws are modelled on the English common law tradition, thereisnosinglebodyoflawsgoverningaustraliaasawhole. Instead Australian tradition of federalism has produced nine jurisdictions The Commonwealth, two territories and six states, each is governed by its own distinct body of law (White and Perrone 2010, p.375) Inferior Courts or Lower Courts These are the lowest tier of courts and are presided over by a magistrate, or in some instances a justice of the peace. These courts have jurisdiction enabling them to deal with both criminal and civil matters of a relatively minor nature. Magistrates Court Court of Petty Sessions Local Court Court of Summary Jurisdiction In Victoria the Magistrates Court has both civil and criminal jurisdiction. In other states Local Court has civil jurisdiction and the Court of Petty Sessions has criminal jurisdiction. InNSWLocalCourt has jurisdiction over both civil and criminal matters (White and Perrone 2010, p.375). Inferior Courts or Lower Courts Coroners Courts have original jurisdiction to conduct inquests into the cause of unexplained deaths, deaths occurring in government institutions, e.g. prison, remand centre, psychiatric hospital. The Coroner can also investigate any fore occasioning property damage or destruction. (White and Perrone 2010, p.377) 5

6 Inferior Courts or Lower Courts Children s Court deals with young people (generally under the age of 17 or 18 at commission of offence, depending on state or territory, (NSW 18 old), who commit summary of indictable offences, with the exception of homicide in which case the Children s Court has the jurisdiction to commit young offenders to trial in superior courts. Inferior Courts or Lower Courts Indigenous Courts Drug Courts Electronic Courts Small Claims Tribunal Crimes Compensation Tribunal (Mills 2011,p.4) Intermediate Courts These courts deal with cases of a serious criminal and civil nature than inferior courts and are presided over by judges. Courts of this type are referred to as District Courts in NSW, Qld and WA. Local and District Criminal Courts in SA. Country Courts in Victoria. Tasmania and the territories do not have and intermediate tier of courts. (Mills 2011,p.4) 6

7 Superior Courts These courts, also officiated by an experienced judge and involving a jury in contested matters, deal with the most serious criminal cases, including homicide and related offences. These courts also deal with civil matters involving claims for an unlimited amount of compensation. They are the highest courts available at the state or territory level. They also act as key courts of criminal appeal from lower courts, each state and territory having established Courts of Criminal Appeal specifically for that purpose. (Mills 2011,p.4) Federal Level At the Federal level the court has two tiers: Inferior Federal Magistrates Service or Federal Magistrates Court of Australia. Superior TheHigh Court sits at the summit of the Australian court hierarchy and is the custodian of the Australian Constitution, including disputes between the state and Commonwealth. The Family Court deals with issues of divorce, settlement and custody, child support and the state of marriage. It sits in each state and territory. TheFederal Court deals with virtually all civil and some minor criminal matters arising under Australian Federal Law. (White and Perrone 2010, p.380) A Question of Impartiality At this point it is useful to pose the question as to whether or not the legal system is indeed neutral and impartial. The Rule of Law is premised upon the notion that, irrespective of position, wealth or influence, all individual are treated alike in the eyes of the law. 7

8 A Question of Impartiality Judges preside over two parties seeking judgement. Indoing so they put aside their own views, prejudices, and personal opinions and feelings to take on a strictly legal adjudication role. They are seen as the neutral umpire. Political independence and neutrality. Under our system, the judge is by and large appointed for life, and has a high income, and hence no political party or government should be able to influence or coerce that judge. Judges are meant to play by legal rules. They must follow precedents and the guiding principles of the law. If they do not do so then institutionally there are mechanisms, such as the Courts of Appeal, that are designed to rein in any wandering from the prescribed legal route. (White and Perrone 2010, p.382) The Hierarchy of Courts in Australia There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian system. Special Courts and Tribunals Fair Trading Tribunal Workers Compensation Courts Industrial Relations Commission For a detailed description of the Australian Court System go to: (Mills 2011,p.5) Mills, B.(2011) The Criminal Trial Courtroom Practices, Policies and Procedures: The Federation Press. Sydney 8

9 Cross Cultural Universal Norms This concept argues that crime is ubiquitous as it does not vary across cultures. Murder is murder regardless of where it is committed. On this basis conduct norms can be postulated to cut across diverse cultural backgrounds. (White and Perrone 2010, p.3) Human Rights This approach regards injustice to have occurred whenever a human right has been violated, regardless of the legality or otherwise of the action. This concept can expand the definition of crime to include racism, sexism, gender and class based exploitation. (White and Perrone 2010, p.3) Legal Perspective From a strictly legal perspective the answer to what is crime is simply what the law says it is. In this view, the state has a central place in defining what is criminal and what is not. For an acttobecriminalitmustbelegallycondemned by the state and sanctions must apply. (White and Perrone 2010, p.3) 9

10 Actus Reus Thetermsactus reus and mens rea developed in English Law, are derived from the principle stated by Edward Coke, namely, actus non facit reum nisi mens sit rea,[1] which means: "an act does not make a person guilty unless (their) mind is also guilty"; hence, the general test of guilt is one that requires proof of fault, culpability or blameworthiness both in behaviour and mind. Actus Reus Acts, omissions or a state of affairs that constitute a violation of the law. (White and Perrone 2010, p.6) Mens Rea In criminal law, mens rea the Latin term for "guilty mind"[1] is usually one of the necessary elements of a crime. In some jurisdictions the terms mens rea and actus reus have been superseded by alternative terminology. In Australia for example the elements of all federal offences are now designated as "fault elements" (mens rea) and "physical element" (actus reus). 10

11 Mens Rea A concept in criminal law that focuses on whether the accused s mental stage included an intention to commit harm. (White and Perrone 2010, p.6) The Adversary System The adversarial system (or Adversary System) of law is the system of law that relies on the contest between each advocate representing his or her party's positions and involves an impartial person or group of people, usually a jury or a judge or magistrate trying to determine the truth of the case. As opposed to the Inquisitorial System which as a judge (or a group of judges who work together) whose task is to investigate the case. The Adversarial System is the two sided structure under which criminal courts court s are about the better argument between prosecution and defence. Justice is seen to be done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one. (Mills 2011, p.4) The Rule of Law Dicey ( ) stressed three characteristics of the rule of law: 1. The law applies equally to all in society; nobody is above the law 2. Nobody is subject to punishment except for a definite breach of the law as determined by the courts 3. The courts are independent and not subject to political interference or control in making their decisions (Thomas 2000, p.94) Thomas, G. (2000) Introduction to Political Philosophy Duckworth: London 11

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