The basic division in the structure of criminal courts is between the lower criminal courts – the local courts, Children’s court and Coroner’s court – and the higher criminal courts – the District Court and the Supreme Court. In observing proceedings at the Local, District and Supreme Courts over a period of three days a number of aspects of the criminal justice system were made apparent. The administration, processes and practices of the criminal trial are extremely varied dependent upon the level of criminal court being observed.
The distinctions between the workings of the two courts revealed a number of the differences between summary proceedings and trial upon indictment. The cases observed served to provide evidence for the “two tiers of justice” argument. Also the role of the judiciary was perceived as being particularly interesting especially the high level of discretion that they held in the Local Courts and even to an extent in the District Court primarily when there was no jury present.
McBarnet’s discussion of the criminal court system focuses around the idea that the higher courts such as the District and the Supreme courts are for public consumption in which the ideology of justice is played up by the more elaborate court rooms, dress, and rigid rules of ceremony. On the other hand the lower courts focus on control. The local courts handle the vast bulk of cases with only a small proportion of criminal cases coming before the higher courts. For example the National division of cases between the lower and higher courts in 2003-2004 were 97% finalised in the lower courts while only 3% were heard in higher courts.
Lower criminal courts – Absence of legality In arriving at the local courts, the waiting room was full of people who had been summoned to appear for their hearing. It was noisy and extremely busy. In observing the waiting room it was obvious that people were restless and were anxious to have their case heard. The majority of cases were listed to start by 10am and thus depending on the speed of the trial process many people may have had to wait hours before their case could begin. There are no estimates of how long each matter will take and not even an attempt to make a general time allocation.
Mack and Anleu also further illustrate this concept. They said that primary objective is time management and ‘getting through the list’ for that day. In general, the whole process in the local courts was a lot less formal than was expected with several of the magistrates even stopping proceedings to explain the facts of the case to the law students. Although Pat Carlen in her study of Magistrates Courts in England and Scotland described the court as a very formal and ritualistic social setting this is somewhat surprisingly not what was observed during Local Court visits.
The court observations were more in line with those of McBarnet in that the lower courts did not uphold the strictures of “due process” and the ideology of justice. In one particular committal hearing that was observed in the Local Court, R v Sean Robert Kerr, the atmosphere was relaxed and the magistrate and the prosecutor were in constant discussion about the facts of the case and the admissibility of evidence. The accused was alleged to have carrying knife in public place. This downplaying of the crimes to less serious charges supports the emphasis on efficiency that underlines McBarnet’s analysis.
Each time the prosecutor made a claim the magistrate would ask where the evidence came from. The magistrate was concerned with the nature of the evidence as they are required to determine whether there is enough evidence to commit the accused for trial as outlined under s 62 of the Criminal Procedure Act 1986. It became obvious that they were short staffed and without a court clerk when the magistrate held no objection to the prosecutor approaching the bench to submit evidence. This case provides evidence for the process of the committal hearing and demonstrating judicial discretion in deciding whether the case should go to trial.
Other cases that were observed through court visits further emphasised the nature of the judicial process in the Local Courts. The summary proceedings served in a number of cases to emphasise the triviality of the process. Cases involving minor offences such as traffic offences and petty theft were particularly trivial however other cases such as domestic violence and minor assault charges were not so inconsequential. They were of particular importance to the parties involved and it is thus important not to overgeneralise the process of the lower courts to being mere triviality.
Whilst in the local courts there was an emphasis on speed and efficiency, this did not automatically mean that strict legality was disregarded. The importance placed on evidence and onus on the prosecutors in providing proof upheld important elements of the criminal justice system. Higher criminal court – Ideology of Justice On observing the District Court a number of distinctions from the Local Courts were immediately made apparent. Without going in to detail about the actual structure of the courts, they seemed to fit more closely with the traditional schema of a typical courtroom.
In particular the larger courtrooms with more facilities combined with the barristers and magistrates wearing their wig and robes seemed to instantly uphold the ideology of justice. It is interesting to note how appearances can automatically provide an impression that justice will be upheld. The defendants were observed to be sitting in the dock with the corrective services officer sitting by the side. This is in contrast to the local courts where the defendant usually sat near their legal representative. An interesting comparison can be made between the roles of the judge in cases where there was a jury present and where there was not.
Trial by jury is seen as an essential element of our criminal justice system. Juries are seen as a symbol of democracy and guarantee of fairness in a criminal trial however it is important to note that the majority of criminal trials are dealt with in the lower courts where juries are not available. Therefore by this simple fact the higher courts are upholding the “two tiers” analysis as they have the advantage of the jury trial, an essential element in the ideology of justice. In R v Veronica Salas Collard the jury was observed to be composed of eight men and four women of different ages and races.
This supports the view that a group’s ability to be impartial is best achieved by ensuring diversity rather than uniformity. The role of the judge in jury trials was greatly diminished with the jury having sole responsibility in deciding the facts of the case and whether the accused is guilty or not guilty. The role of the jury to hear evidence was observed in the District Court. While observing R v Jessica Nguyen the jury had been adjourned and then returned to re watch sections of the police interview tape with the defendant.
The Judge then proceeded to ask them if there was any more evidence that they wished to be reviewed. Similarly in R v Danny Price every time a new piece of evidence was submitted to the judge it was also submitted to the jury. In particular during proceedings on the day observed a number of photographs and diagrams were submitted to the jury. The judge asked the jury if the evidence was clear. The jury is thus seen as a vital element of the criminal trial. A number of bail and appeal hearings were also observed. These were particularly interesting as it again demonstrated judicial discretion.
As opposed to when the jury was present the judge again had sole discretion in determining whether bail or the appeal should be allowed. Section 26 of the Bail Act 1978 outlines the power of the district court to grant bail. In R v Steven Astill the defendant was accused of fraud and was granted bail with conditions that he was to report weekly to his local police station on a weekly base. The power of the judiciary to determine proceedings was once again observed. There is however legislature in place which guides the courts to achieve consistency in sentencing.
In general however judicial discretion may be seen as not upholding strict legality, the administration and practices of the district court criminal trial were much more in line with the ideology of justice. Thus in observing proceedings over a period of three days a number of aspects of the criminal justice system were made apparent. In particular the distinctions between the lower and higher criminal courts and the extent to which they could be seen to uphold McBarnet’s “two tiers” analysis. From observation the lower courts did focus on more trivial matters and through their general nature emphasised efficiency.
Furthermore the higher court perpetuated the ideology of justice through its very nature of upholding the traditional view of the court process. Word count: 1606 Appendix Downing Centre Local Court – 19/3/2013 1. R v Sean Robert Kerr – Hearing 2. R v Colin John Ivers – Sentence Downing Centre District Court – 27/3/2013 3. R v Veronica Salas-Collard – Criminal trial 4. R v Jessica Nguyen – Criminal trial 5. R v Danny Price – Criminal trial 6. R v Steven Astill – Bail hearing 7. R v Corey Loveridge – Criminal trial Supreme Court – 3/4/2013 8.
R v Mohammad Karini, R v Mahdi Mir, R v John Khoury – Criminal trial. There were three accused in this trial. Bibliography Articles: 1. Doreen J. McBarnet, Conviction: Law, the State, and the Construction of Justice, London, The Macmillan Press Ltd, 1981. 2. Kathy Mack and Sharyn Roach Anleu, Getting through the List: Judgecraft and Legitimacy in the Lower Courts, (2007) 16 Social Legal Studies 3. Meredith Wilkie, ‘Composition of Juries’ in Zdenkowski et al (ed. ) The Criminal Injustice System Vol. 2, Sydney, Pluto Press, 1987 4. Pat Carlen, Magistrates Justice (1976) cited in Brown et al, Criminal Laws.
Books 1. David Brown et al, Criminal Laws: Material and commentary on Criminal Law and Process of New South Wales, 5th Ed, Sydney, The Federation Press, 2011 Legislation 1. Criminal Procedure Act 1986 (NSW) 2. Bail Act 1978 (NSW) ——————————————– [ 1 ]. David Brown et al, Criminal Laws: Material and commentary on Criminal Law and Process of New South Wales, 5th Ed, Sydney, The Federation Press, 2011 p. 142. [ 2 ]. Doreen J. McBarnet, Conviction: Law, the State, and the Construction of Justice, London, The Macmillan Press Ltd, 1981. [ 3 ].
David Brown et al, Criminal Laws: Material and commentary on Criminal Law and Process of New South Wales, 5th Ed, Sydney, The Federation Press, 2011 p. 143 [ 4 ]. Kathy Mack and Sharyn Roach Anleu, Getting through the List: Judgecraft and Legitimacy in the Lower Courts, (2007) 16 Social Legal Studies p. 157-8 [ 5 ]. Pat Carlen, Magistrates Justice (1976) cited in Brown et al, Criminal Laws p. 161 [ 6 ]. Criminal Procedure Act 1986 (NSW) s62. [ 7 ]. Meredith Wilkie, ‘Composition of Juries’ in Zdenkowski et al (ed. ) The Criminal Injustice System Vol. 2, Sydney, Pluto Press, 1987, p. 111 [ 8 ]. Bail Act 1978 (NSW) s26.