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Week1
Chapter1:TheCourtSystem& Chapter2:TheAdversarySystem
EssentialReading(s)
• Mills,B.(2011)TheCriminalTrial
TheFederationPress:Melbourne
• Week1:Ch.1,pp.3– 5&
Ch.2,pp.6– 7
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Lecture1
Theintroductorylectureofthisseriesisabout:
• TheCourtSystem
• TheAdversarySystem
TheRuleofLaw
Dicey (1835‐1922) 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
FederalCourtSystem
• High Court of Australia
• 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)
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TribunalHasNotActedin7years
Susan Kiefel is approaching the end of her two‐year term as president of the Federal 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 email 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 been dealt with for a fraction of the time and cost in the
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.
The only time in the past seven years the tribunal actually did something was 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.
StateCourtSystem
• SuperiorCourts
• IntermediateCourts
• LowCourts
• SpecialCourtsandTribunals
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TheCourts
• 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,
there is no single body of laws governing Australia as a whole.
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)
InferiorCourtsorLowerCourts
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. In NSW Local Court
has jurisdiction over both civil and criminal matters (White and
Perrone 2010, p.375).
InferiorCourtsorLowerCourts
• 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)
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InferiorCourtsorLowerCourts
• 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.
InferiorCourtsorLowerCourts
• IndigenousCourts
• DrugCourts
• ElectronicCourts
• SmallClaimsTribunal
• CrimesCompensationTribunal
(Mills2011,p.4)
IntermediateCourts
• 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)
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SuperiorCourts
• 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)
FederalLevel
At the Federal level the court has two tiers:
Inferior
• Federal Magistrates’ Service or Federal Magistrates’ Court of Australia.
Superior
• The High 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.
• The Federal Court deals with virtually all civil and some minor criminal
matters arising under Australian Federal Law.
(White and Perrone 2010, p.380)
AQuestionofImpartiality
• 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.
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AQuestionofImpartiality
• Judges preside over two parties seeking judgement. In doing
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)
TheHierarchyofCourtsinAustralia
• 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.
http://en.wikipedia.org/wiki/Australian_court_hierarchy
SpecialCourtsandTribunals
• Fair Trading Tribunal
• Workers Compensation Courts
• Industrial Relations Commission
• For a detailed description of the Australian Court System go to:
http://www.nswbar.asn.au/docs/resources/publications/structure.pdf
(Mills 2011,p.5)
Mills, B.(2011) The Criminal Trial ‐ Courtroom Practices, Policies and
Procedures: The Federation Press. Sydney
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Cross‐CulturalUniversalNorms
• 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)
HumanRights
• 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)
LegalPerspective
• 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
act to be criminal it must be legally condemned
by the state and sanctions must apply.
(White and Perrone 2010, p.3)
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ActusReus
• The terms actus 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.
http://en.wikipedia.org/wiki/Actus_reus
ActusReus
• Acts, omissions or a state of affairs that
constitute a violation of the law.
(White and Perrone 2010, p.6)
MensRea
• 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).
http://en.wikipedia.org/wiki/Mens_rea
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MensRea
• 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)
TheAdversarySystem
•
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)
TheRuleofLaw
Dicey (1835‐1922) 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
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