Another challenge, the recent reforms conjure, it that the role of the accused in the Show Cause test. In both criminal proceedings, it is the onus of the prosecution to prove that the crime was committed by the accused beyond reasonable doubt, this is the same in civil cases, were the burden of proof falls on the plaintiff which must prove on the balance of probabilities. In both cases, this means that the defendant does not have to prove their innocence as they are being called on by the State or another party and so it is not their responsibility (Milgate, 2016). Hence, it would be presumed that this would apply in a bail hearing, however the newly introduced Show Cause test requires otherwise. As aforementioned, in the case of serious offences, …show more content…
In society, as we can not presume one’s innocence, we can not also presume that all judges apply black letter law, and there are no judges who are bias, or whose beliefs and morals ever come into play when ruling on a case. This reform, allows for the opportunity for judges to misconstrue the evidence being given or the seriousness of the offence, as under the Unacceptable Risk Test, one of the indicators were whether they a serious offence has been committed. Rather than setting measurable criteria, like either a summary or indictable offence, the term summary, as stated in the formal review of the Act, that there is “limited guidance in the Act on what constitutes a serious offence” (Hatzistergos, 2014). Therefore leaving judges to interpret and potentially misconstrue, the seriousness of a crime, and creating precedent for all other cases, which could be not what the original legislation intended. …show more content…
In December of 2014, Man Haron Monis, a lone gunman held 18 people hostage in the Lindt Cafe in the Martin Place. This event known as the ‘Sydney Siege’ which resulted in 3 deaths, including the death of the perpetrator, was a result or more complex and ‘softer bail laws (ABC, 2014). Just a year before this event, prior to the law reform coming into effect, Monis was charged with accessory to murder and granted bail with strict conditions as the judge saw the case as lacking evidence (Barns, 2014). However, in 2016, Monis’ girlfriend, Amirah Droudis, was charged with the murder of Monis’ ex-wife after stabbing her eighteen times, and then setting her alight. It was found in the trial that this was orchestrated by Monis himself, and the Justice described him as an ‘evil man’ (Blumer, 2017). Having stricter bail laws in place at this time would have prevented Monis to be released on bail, as he poses an undeniable unacceptable risk because of the charges against him as well as the forty counts of sexual assault that he was charged with, eleven years prior. Having also been granted liberty in the previous charges, Monis would not have even been allowed apply for bail for a second time, perhaps this could have prevented the siege altogether (ABC, 2015). The bail laws did not provide justice in this situation, and the law
The aspect of wrongful conviction is established within law to protect the innocent from being abused by the law. Nevertheless, the real issue of concern is the fact of whether wrongful conviction actually helps those who cannot help themselves. With that said, another important underlying factor is whether the criminal justice system has restrictions set up to help those from being innocently convicted and those who have been convicted and later was found to be innocent. By looking at the case of Guy Paul Morin, one will see how the police, courts, and criminal justice system failed in aiding the innocent and bringing justice in society, as well as showing that the system has failed in helping its people, and what must be done to aid those who have been wrongfully convicted.
The role of the judiciary is to interpret and apply the law, not to make it. In some cases an approach that gives slightly more emphasis to the text may be seen to be more in line with the judiciary’s constitutional position. The law is written in the words of the statutes, and Parliament has an obligation to express law correctly. The role of the court courts is not to ensure that Parliament hits the target every time, especially when the legislation does not clearly display those targets.
The Canadian Criminal Justice System is, for the most part, reflective of the Charter of Rights and Freedoms and various Supreme Court of Canada case-law. Everyone who finds themselves on the opposing end of the Criminal Justice System is entitled to certain protections every step of the way, beginning even before the arrest; laws protect us from unreasonable investigative techniques, guarantee certain rights at point of arrest, and provide us with the right to counsel. The bail court departs from the ‘beyond reasonable doubt’ standard in that the crown only needs to prove on a balance of probabilities (Kellough, 1996, p. 175) in order to take away a person’s freedom. It is for this reason I decided to limit the scope of my observations to the bail court. What I found is a systemic evidence of a two-tier justice system. In this essay, I will outline the roles of the 'regular players' of the bail court and demonstrate how the current bail process essentially transforms the Canadian Criminal Justice System into a two-tier system where the affluent and powerful are able to receive preferential treatment over the poor.
This essay will first address the statute used and interpretation of the threshold test by the courts, and then focus on cases involving vulnerable children to assess whether the statute in The Children Act 1989 is sufficient in protecting these children from harm. I will look at the argument in favour of the current approach taken by the courts, and the counter-argument in favour of changing the current approach. The arguments are delicately balanced and the law is always developing, so it will be interesting to see how the Supreme Court resolves this issue in future.
Subsequently, one of the main components of the procedural limitation is innocent until proven guilty, which brings about the right to a Grand Jury- a panel that determines whether or not there is a need to go to trial. As a result, a guilty verdict in criminal cases is determined with evidence that is sufficient and that must be proved “‘beyond a reasonable doubt’” (pg.131), so there is an immense need to increase the chances for the respect of “reasonable doubt” (pg.
The contradictory outcomes of cases presenting very similar facts to the court leads some jurists to cry out for reform and to denounce the defects in the present common law rules. Some, are supportive of the implementation of a statutory obligation to make reparation for wrongfully caused mental
In “Mistakes, Misunderstandings, and Misalignments” Jules L. Coleman argues, “there is an inconsistency in how the standard of care is set versus how damages are awarded [in the criminal justice system]” (). Meaning, the law does not abide by the same verdict when punishing as when protecting. When penalizing, the law usually targets the financially unfortunate in this case Hector. Conversely, when protecting, the criminal justice system seeks to defend the affluent, Emily. This creates a double standard in which fear is instilled in the poor while a sense of security is granted to the
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
Dear Zachary is a heart-wrenching documentary made by filmmaker Kurt Kuenne. Originally intended as a tribute for the deceased Andrew Bagby’s unborn son, Zachary, the purpose changes drastically when Shirley Turner, Andrew’s ex-girlfriend and killer (and Zachary’s mother), kills Zachary in a tragic murder-suicide. Believing that Shirley Turner should never have had custody of Zachary and that poorly made bail laws led to Zachary’s death, Kuenne alters his documentary to have a more argumentative message. Kurt Kuenne’s argument in his documentary Dear Zachary is that bail laws for those charged with a serious crime need to be reformed in order to protect people – especially any children – who may fall under the custody of the accused criminal.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
The subjective definition of recklessness is where the defendant takes an unjustified risk and was actually aware of the consequence, has been seen here to be the best approach when understanding reckless behaviour. Although within criminal law, the term recklessness has a second definition which is known to be objective recklessness. The objective definition argues that a person is reckless when the defendants take an unjustified risk and was actually aware or should have been aware. This essay establishes that the subjective definition of recklessness takes into account the individuals characteristics, the mental state of a defendant but also help to understand certain cases like rape. It has also been established here that elements of the objective definition is an extension from the subjective definition of recklessness, which therefore allows the subjective side holds greater weight and in terms of looking at if the reasonable man may have be incapable of foreseeing a consequence. Thus, it has been argued here that the subjective definition of recklessness in criminal law must be maintained.
The UK courts obtain the power to decide whether the governmental authority has acted ‘Ultra Vires’. This ensures they do not act outside limits of their legal power, this includes both formal and substantive grounds. Both proportionality and natural justice are crucial components for judicial review of a case and therefore, formal and substantive elements are required to set out laws. There seems to be no compelling reason that this may not also be the most salient solution for the rule of law, however in my opinion, good procedures are not as rewarding as the laws content when it concerns the publics lives and
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
Mens rea known as the “mental element” of an offence has long been regarded as a crucial factor in criminal law, aiming to ensure that only those who are blameworthy are punished for crimes thus inputting the role of fairness into the criminal law system. H.L.A Hart agreed with this fairness rationale arguing that it would be wrong to convict and punish anyone who had not been given ‘a fair opportunity’ to exercise the capacity for ‘doing what the law requires and abstaining from what it forbids.’ “The general rule is that no crime can be committed unless there is mens rea.” But this is departed from when creating strict liability offences.
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