In 2013, reforms were made regarding the new concepts of justice surrounding the laws of those awaiting trial under the Bail Act 2013 (NSW). The concept of bail is that when someone is charged for an offence and is waiting for trial, instead of being held in remand, one can be released on bail at liberty however may have to respond to a series of conditions. This feature enables that one is presumed innocent until the very end, if proven guilty. This right is fundamental for everyone however it’s value in our legal system is gradually decreasing, as shown under new laws as illustrated in the Bail Act 2013. In the case of bail laws, the need to protect society is also important and can often come into conflict with other fundamental rights. …show more content…
While people have the right to live in a safe community the key right governed by the legislation surrounding bail laws, is the right to the presumption of innocence. The right to be “presumed innocent until proved guilty” is articulated in Article 11 of the Universal Declaration of Human Rights, which was drafted by the General Assembly in 1948, that of which Australia was a part of (United Nations, 2018). The Rule of Law is a principle of governance that ensures that no one is above the law therefore enforcing consistency, fairness and equality. The presumption of innocence plays an important role in preserving someone’s innocence and not punishing them for a crime that is yet to be proven. This fundamental right also acts as a judicial review and regulates powers of the Government, limiting their ability to hold people on remand …show more content…
Laws governing the right for the accused to be held on remand have been change as society beings o understand the vale of the community's safety IN FAVOUR over the presumption of innocence. The changes that have been to amend the Bail Act of 1978 are constituted in the Bail Act of 2013. The key change to this law is the concept of unacceptable risk and this as the determinant for being accepted the bail. Once someone has been charged with an offence and been arrested by police, the police have the opportunity to grant bail, which is a very likely result for summary offences. If bail is not granted the accused is taken to court where they undergo an unacceptable risk test by the judge. The accused at this stage will be let go unless they are proven an unacceptable risk. In order to be classified thiss, one must either fail to appear at court, have committed a serious offence, pose a risk to the community or the victims, or have had interfered with evidence (ROLIA, 2013). If proven an unacceptable risk, the question is posed whether or not bail conditions will reduce this risk. At this point in the process the presumption of innocence is still being upheld as the state are trying to honour the accused’s rights by avoiding being held on remand at all costs by offering release on certain conditions so to protect the victim whilst still presuming the
The conviction of guilty offenders when adhering to the guidelines of the NSW criminal trial process is not difficult based on the presumption of innocence. However, due to features of the criminal trial process, established by the adversarial system of trial, cases can often involve copious amounts of time and money, particularly evident in the case of R vs Rogerson and McNamara where factors such as time and money are demonstrated to be in excess. In addition, characteristics of the adversarial system such as plea bargaining has the power to hinder convictions due to the accused having the authority to hire experienced and expensive lawyers to argue their case, hence maintaining their innocence.
Criminal law attempts to balance the rights of individuals to freedom from interference with person or property, and society’s need for order. Procedural matters, the rights of citizens and powers of the state, specific offences and defences, and punishment and compensation are some of the ways society and the criminal justice system interact.
From the aforementioned cases, it is evident to see that the Australian legal system has not always been fair and just, however, over time it has been shaped and moulded to clearly represent what is now considered to be fair and just in our society. From the procedures and presumptions of how the legal system is administered to the law and regulations which determine what is the crime and punishment – these are based on the transparency, equality, freedom from bias, human rights, and established set of rules adhere to the justice and fairness of the legal system.
In this research bulletin commissioned by the Criminology Research Council, Ogloff et al. review the level of screening and the instruments used across jurisdictions to assess mental illness in justice agencies. Ogloff et al. intend to highlight the need and argue for a nationwide system of screening of all accused offenders taken into police custody, in order to identify those who require a comprehensive mental health assessment. The authors based their research on interviews and the examination of secondary documents covering criminal justice agencies in each of the states and territories. From the research findings the authors propose ten recommendations in order to improve the coverage and quality of screening for mental illnesses in the Australian criminal justice system. This article is useful for my research topic as Ogloff et al. outline a fundamental issue that requires further research, this may provide direction to my research question. The main limitation of this bulletin stems from the fact that both of the cost models under consideration rely on the assumption that the rates of mental illness in arrestee populations are constant across jurisdictions and hence their calculations would need to vary should the evidence suggest otherwise. The authors suggest that unless the courts, police, and parole authorities are given training and resources to better meet the needs of the mentally ill nothing will be achieved. The ideas within this research bulletin will form the basis of my researc...
Conclusion: Congress hoped to achieve a greater degree of accuracy in assessing flight and danger of arrestees through establishing the Bail Reform Act of 1984, which set objective guidelines for judicial officers in assessing release conditions including taking into account for the first time the probability an offender will re-offend while on pretrial release. It was also hoped that the Act would bring back the community's trust in bond setting practice. Overall, the benefits of the Bail Reform Act of 1984 do exceed any detriments, but some problems do exist. These problems include the uniformity in the application of the Bail Reform Act of 1984, as well as the interpretation of dangerousness to the community. Through future legislative and executive reform, this Act will go through multiple changes until these issues are addressed.
This is offered to provide an incentive for “good behaviour” and ultimately rehabilitation during a sentence. The granting and restriction of parole is outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW), and allows those with sentences of more than three years to be released after they have served their minimum sentences. The encouragement of rehabilitation upholds the rights of the community and offender, as the offender’s rights are not undermined by through excessively restricting their freedoms and the reintroduction of the rehabilitated offender into society minimises the threat of reoffending. However, the reward of parole for some offenders has resulted in community dissatisfaction. The Age article “Adrian Bayley should not have been on parole” represents a social concern regarding the leniency of parole for violent sexual offenders. The release of the evidently non-rehabilitated offender resulted in a breach of parole and the sexual assault and murder of Jill Meagher, a 29 year old Melbournian woman. As a result of the injustice of the lenient decision and subsequent community retaliation, new parole laws were introduced in Victoria during 2014. This legislation is outlined in the Corrections Amendment (Parole) Act 2014, and the penalty for breaching parole includes up to three months jail and/or a $4200 fine. Thus, there is greater justice for the victim and especially the community through the discouragement of crime for offenders who may not be rehabilitated and are released on
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
Liberty is a fundamental human right, recognized in major human rights instruments to which Australia is a party. People who are held in detention are particularly vulnerable to violations of their human rights.
The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packer believed in which ones rights are not to be infringed defrauded or abused was to be considered to be the ideal for procedural fairness. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” Thomas Jefferson pg 9 cjt To convict an individual because proper consideration was not taken will stir up social unrest rather then it’s initial intent, when he or she who has committed the crime is not punished for their doings can cause for a repetition and even collaboration with other’s for a similar or greater crime.
Is this type of legislation justified? In simple terms no. It removes basic human rights such as the Common Law belief of innocent until proven guilty, it also takes away the adversarial nature of our justice system and replaces it with the possibility of arbitrary imprisonment (NSW Law Commission, 2004). This type of legislation also fails to adequately balance the goals of Imprisonment instead focuses on the punitive goals and contradicts the goal of rehabilitation.
Abel Magwitch was one of the two acquitted criminals in Dickens' Great Expectations. The convicts in this novel were sent to either Newgate prison or shipped to Australia where they were placed in penal settlements. Magwitch was sent to New South Wales for his connections with Compeyson (the other convict) and was sentenced on felony charges of swindling and forgery. Convicts sent to penal settlements suffered the same abuse that slaves were exposed to. The difference lies in the fact that these men and women were in these settlements because of crimes committed such as pickpocketing and murder. Such settlements were New South Wales, Van Dieman's Land, Devil's Island, and Botany Bay, to name a few. In fact, "Botany Bay meant convicts and was looked upon merely as the fit receptacle of national crime" (Inglis 4). Convicts were sent to these settlements as a way to curb the number of felons in the British Isles. Settlements created a place to live and work in order to change or correct the character of the convict. During the nineteenth century, convicts made up most of the population of Australia with a mere fraction of actual free emigrants. The Australian penal settlements helped to develop a new penal theory as well as different view of Australia. By looking at the journey of the convicts, their service, jobs, authorities, punishment, and freedom, we will be able to understand the complicated theory of penal ideas and the plight of Magwitch, Pip's convict.
The statement "It is better that 10 guilty persons escape than that one innocent suffer" summarises and highlights the mistakes and injustices in the criminal justice system. In a just society, the innocent would never be charged, nor convicted, and the guilty would always be caught and punished. Unfortunately, it seems this would be impossible to achieve due to the society in which we live. Therefore, miscarriages of justice occur in the criminal justice system more frequently than is publicised or known to the public at large. They are routine and would have to be considered as a serious problem in our society. The law is what most people respect and abide by, if society cannot trust the law that governs them, then there will be serious consequences including the possible breakdown of that society. In order to have a fair and just society, miscarriages of justice must not only become exceptional but ideally cease to occur altogether.
Wemmers (1996) highlights that an effective criminal justice system also protects human rights. Victims are gradually being seen as the notable possessors of such rights that lead to reviews in our domestic system and also by international bodies. The protection of said rights, such as in South Africa where less express definitions between ‘victim’ and ‘human’ rights are being made by policy m...
This is one of the most important aspects of the criminal investigation process due to the fact that if the proper procedures aren’t followed, the validity of the case will be jeopardized. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) outlines the conditions of which a person can be arrested and detained. A key term in the arresting process is ‘suspicion on reasonable grounds’ as this describes the discretion of the police in making arrests. Although for most arrests, a warrant is needed, police can arrest someone if they genuinely believe that the person is guilty of a crime. After a person has been arrested, they will be detained in a police station and this process is also outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The Act outlines the rights a person who has been detained, such as refreshment periods, and the procedures that the police must follow, this is all done to help protect the rights of citizens. If a person is charged with a crime, they will either be put in remand or be allowed to post bail. Bail, also referred to as conditional freedom, allows a person to retain certain rights, such as spend their time awaiting trial in their home, and this is outlined in the Bail Act 1978 (NSW). Bail is a great example in the criminal trial process achieving justice, as the concept of bail seeks to
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,