Hierarchy of Australian Courts
Discuss about the Trial and Punishment in Australia.
The parliament passes legislation to criminalize certain behaviours, the question remains who try such offences, the magistrate, judge or jury. The constitution of Australia under section 80 confers to the jury a right to trial (Moore, 2015, p. 1-20). The jury system is helpful in diffusing conflicts in turbulent times. In dealing with crimes and punishments, Australia is guided by several legislations. The constitution, Federal Crimes Act 1914, Criminal Code Act 1995 and the Summary offences Act of 1988. The procedure for criminal law is administered and made by different Australian territories, and other bodies of criminal law are administered and made by the federal government (Solomon, 2007, p.92).
The Australian judicial system has a hierarchical structure, where some courts have more powers than others. Different courts deal with different offences depending on the jurisdiction. There also exist federal courts and state courts. All courts deal with specific issues depending on their specialties. State laws set up state courts and federal courts are set up by Commonwealth laws (Cmpbell & Campbell, 2013, p. 16-23). The state courts deal with most disputes in Australia, and they may defer from state to state depending on powers and penalties which can be imposed (Smith et.al, 2004, p.50). The lowest level has the magistrates’ courts which are also called the local courts. On the magistrate’s court, there is no jury. A qualified legal person hears the case and decides whether it goes to a higher court or a committal hearing takes place (Davine, 2012, p.21). The magistrates’ courts deal with minor offences like petty drinking and minor criminal cases. Other special courts are the children’s courts. The Federal courts deal with matters which are not under State law. The High court deals with constitutional matters and appeals from lower courts.
Since ancient times removal of persons’ freedom has always been used as a form of punishment. Until the late eighteenth century, people were not being imprisoned for long times. For serious offences, hanging and transportation were the common forms of punishment (Fitzgerald, 2007, p.25). Prisons were used to lock up people in debt and also people were locked there before trials. In the Victorian era, locking up people was an acceptable form of punishment for offenders of serious crimes. Locking people was also considered a safe form of punishment. In various offences, it had become the main form of punishment. As crime levels increased with urbanization, there was a need to keep criminals under control. Also, the public was becoming uneasy with the number of people who were getting hanged. In the 1830’s Britain’s criminals were being dumped in Australia, they became so many that transportation became a problem. The solutions were police reforms and building more prisons. Between 1842 and 1877 ninety prisons were built (Lincoln & Robinson, 2010 p. 190-198) .
Role of Jury System in Criminal Cases
Convicts who deserved punishments were handed to the charge of the governor. Hardened criminals were usually sent to social areas or prisons while most remained segregated. Others were used as labourers and servants of the settlers. During the day prisoners were locked in small wooden huts and supervised by the military at night. The discipline of the convicted was harsh. Female convicts were assigned domestic chores. On 3rd February 1967, Ronald Ryan was the last person to be hanged. This was after the Death Penalty Abolition Act was passed in 1973. The remaining states in Australia outlawed the death penalty (Fitzpatrick et.al, 2016, p. 328). Australia Ratified the Second Protocol to the International of Civil and Political Rights which aimed at abolishing the death penalty (Durrant, 2017 p.263).
During the reign of King George III, there was an establishment of the first criminal Court in New South Wales under an Act of Parliament. It also provided that there was the need for the establishment of a new government together with a court with criminal jurisdiction. Initially, the court was presided by a judge, advocate who was a military officer with a group of other six military officers acted as the jury. This jury system is used in Australia up-to-date. People with experience with the jury do not doubt that the jury systems serve as facilitating justice and democracy. Lord Devlin made observations that the jury is like a small parliament. He concludes that the jury is like a lamp showing freedom to lives and is more than a wheel of the constitution and a justice instrument. Over the years retired judges and judges have made similar observations regarding the jury. Just like air and water, those who best appreciate the jury are the ones who have had the benefits withdrawn from them. When there was an advocate judge presiding over sic military officer in the New South Wales in 1787, the citizens later came to appreciate the importance of the superiority of the jury. When the federation time came, Australian citizens had come to appreciate the importance of the jury, especially in criminal cases (Gans, 2017 p.10).
With over 22 million people in the population, Australia can be said to be relatively safe. There are quite low crime rates to personal and property when rated on international standards. Just like many other Western countries, there was an increased rate of crimes in Australia after World War II. The increase in crimes was triggered by the economic changes and other demographics such as urbanization. There was also a rise in crime awareness. Both in political and media discourse there was increased awareness, and there were driving forces for reforms. The change was inevitable leading to policy reforms, and different issues were addressed including cybercrimes (Graycar, & Grabosky, 2012. p.86).
History of Crime and Punishment in Australia
The process of crime and punishment in Australia today starts with the police. Police investigate the alleged crime and speak to all witnesses and victims. Where the reported offence is complex, the process can be lengthy. Once evidence has been collected, if the police believe that the alleged offender committed the crime, they are arrested and taken to court. The process starts with the committal proceeding where the magistrate’s court listens to the case and determine whether it should go to a higher court for trial (Jennings, 2016, p.178). The magistrate in committal proceedings determines whether sufficient evidence is available to for the matter to go to trial. Declarations also take place, where there is hearing, and the prosecution files evidence in regards to the relevant case so that it will be considered by the court, once the files are received, the court sets a date for answer charge. No case submissions mean that there is no case to answer. This involves submissions by the defense, showing that the prosecution does not have sufficient evidence. When the defense proves their case, the accused is usually released.
The trial process in Australia starts from arresting and charging the accused person. When they appear in the court room, they sit in the dock where the accused persons sit. The prosecutor is then presented with ‘indictment’ document which contains the offence committed by the accused. The judge’s associate then reads the document, and the accused has to take a plea. The accused then takes a plea either guilty or not guilty. The taking plea process is called arraignment. When jurors are summoned to sit on a case, a ballot is used to decide which jurors will sit for a particular case. The jurors take an oath of affirmation that they will use the evidence presented in the court to make a verdict. When a jury has been selected, the jury is addressed by the prosecutor stating whether the case is a commonwealth or state case against the accused. After the prosecutor has opened and addressed the jury, the defence side can also address the court. Afterwards, the prosecutor calls witnesses who are also cross-examined by the defence. Once they are cross-examined, re-examination can take place to clarify what the witness had initially said. After the prosecution has made their case, the defence follows suit, following the same procedure. If the defence had not addressed the court at the beginning, they address the court at this point before they start to give their evidence (Lynch et.al, 2015, p.1-50).
Modern Law Enforcement Practices in Australia
When the accused pleads guilty to charges, they will be sentenced. Sentencing occurs in two stages, the sentencing submissions; where relevant information is presented to the judge by the defence lawyer so that they make an appropriate ruling and a suitable sentence.
When all the evidence is presented, both sides review their cases presenting them to the jury. The jury is then instructed by the judge on the main facts of the law and issues which will be considered in reaching a decision. The jury then leaves the courtroom to consider the facts and make a suitable decision. When the verdict of the jury is “not guilty” the accused will be considered acquitted and free to leave. If the verdict is guilty, the accused is convicted. For the accused to be found guilty in criminal charges, the prosecution has to prove beyond reasonable doubt that the accused is guilty. The judge is the one who usually passes sentence, and when a person is convicted they become the “offender”. Sometimes the offender may be remanded in custody or bail so that they are sentenced another day. The judge sometimes requires more information like special or medical reports to pass judgment (Aust, 2010, p.223).
When a person is arrested in Australia, they are entitled to bail; there is usually presumption of bail in criminal charges. This is because all accused persons are presumed innocent until proven guilty. When bail is granted, the offender enters into a bail agreement with the court, and they can appear during a specified time. When bail is granted, the accused can choose to vary bail conditions. If bail is refused, the accused will be remanded in custody, however, at a later date, the accused may try to re-apply for bail.
Punishment for criminal offences in Australia usually involves a head sentence and non-parole period. The head sentence gives a person the total time to be served and the non-parole period is the period the offender needs to serve before they are eligible for parole (Blewet, 2012, p. 135). Typically, the statutes in Australia contain reasons for sentencing, where mitigating and aggravating factors are considered. Such factors are derived from common law including maximum penalties for capital offences. In some special cases, the government can introduce legislations to deal with a particular crime. An excellent example is honing where special legislation was put in place to curb to prevent anti-social behaviour in motor vehicles. Sentencing in Australia depends on the seriousness of the crime, the circumstances, effect on victim and cooperation with the police. The court can sometimes punish the offenders with community service order, where they are required to work for particular hours; other sentences include curfews, fines and exclusion orders. The sentencing can also include, suspended sentence restitution orders, probation and good behaviour bond.
Conclusions
In the recent times, agencies in Australia have adopted a get-tough approach. Communities have not become safer due to crime responses relying on punishment alone. Increased sentences causes restrain to the government while doing less to deter unacceptable behaviour. Instead, longer sentences have been seen to increase the rates of re-offending.
Therefore, it is important to think about policies which focus more on deterring offenders as opposed to punishing them. Research shows that punishment has short-term effects in changing the behaviour of the offenders while suppressing bad behaviour. Anyone who believed they can get away without being punished would not be punished by the threat of punishment (Sanson et.al, 2016, p.157-165).
Policies should focus on rehabilitating offenders as opposed to punishing them. Rehabilitation has a better chance of reducing crime in the community while deterring offenders, hence increasing the chances of crime prevention. Rehabilitation of offenders in Australia goes way back to Alexander Maconochie a prisoner governor of the penal times. He introduced a rehabilitation prison system where a person’s behaviour was very important. And it contributed to the early release of a prisoner. He introduced indeterminate sentences rather than fixed sentences. He also advocated for care after the release of a person and rehabilitation into the community. The works of Alexander led to great social reforms in the 18th century.
The psychoanalytic tradition saw a failure of psychological development as the contributor to delinquent behaviour. With the behavioural studies, contingency management programs and time out, Australian prisons have grounds to develop good standardized programs. The programs can consider therapeutic outcomes of the models to monitors day-to-day functioning or prisoners and their social interactions. Policy corrections in Australia can, therefore, focus on providing the right programs to the right people at the right time. Offenders with high-risk should be separated from low-risk offenders. This will increase the level of recidivism. This will have implications on how the prison is managed and how the courts manage cases. Courts can divert offenders with minimal risk, hence reducing the contact. Staff can also be educated so that they provide high-level rehabilitation for offenders. The system should not rely only on punishment to change behaviour; a true system can be created which enhance the impact of punishment on correction. Punishment works reasonably, with some people. It doesn’t entirely mean that punishment does not work.
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