Australian prosecution process Essay Example

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    Law
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    Undergraduate
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Australian Prosecution Process

Question 1

In adversarial proceedings most decisions in criminal justice are taken by police and prosecutors before the trial and are a matter of discretion. Discuss three examples of such decisions.

Prior to adversarial proceedings, police and prosecutors based on their personal discretion, make various decisions that significantly affect the process and outcomes of the proceedings. Firstly, the police and prosecutors make precessual decisions. Processual decisions are often decisions regarding the processing of a case from the initial charge to the trial or court proceedings. In this case, the police have to use their discretion to determine the procedures or measures that they will use to gather evidence and question suspects. On the other hand, prosecutors have to use their discretion to determine the charges that they will lay. The processual decisions made by the police or prosecutor are often guided by values of legality. When making decisions relating to the processing of a case, a police or a prosecutor has to use their discretion to determine whether the process they intend to follow adheres to the set legal code. For instance, they have to use their discretion in order to ensure that they do not convict the innocent, avoid discriminatory practices and that they convey integrity in the course of the investigations (Ashworth, 1998; Daly, 2011).

Secondly, prior to the adversarial proceedings, a prosecutor or the police can decide to divert a case from the actual court process. A police or a prosecutor may evaluate the nature of a case and decide that a case should proceed to court or should be addressed outside the court or through other extra-judicial interventions (Ashworth, 1998; Daly, 2011).

Thirdly, police and prosecutors make dispositive decisions. Dispositive decisions are decisions made regarding the disposal of the case. In this case, the prosecutor uses their discretion to determine the terms of sentencing that they will advocate for during the adversarial proceedings. Dispositive decisions are often guided by values of crime prevention and proportionality. Therefore, the police and prosecutors have to use their discretion to ensure that the decision that they make regarding the nature of sentencing that they will promote is geared towards crime prevention and the realisation of justice (Ashworth, 1998; Daly, 2011).

Question 2

It is now appreciated that although different in many important respects, the accusatorial and inquisitorial systems of criminal prosecution share several core values. Discuss three of these shared core values.

Accusatorial and inquisitorial systems of criminal prosecution share core values such as; legality, equality before the law and proportionality. As a core value of accusatorial and inquisitorial systems of criminal prosecution, legality entails conformity to the requirements or principles of the law. In both accusatorial and inquisitorial systems the value of legality is often emphasised when it comes to choosing methods of investigation, conducting the investigation process, administering evidence and during court processes or proceedings. This value requires that all practices and process that take place in the course of accusatorial and inquisitorial proceedings should be characterised by integrity and total adherence to the law (Daly, 2011).

Equality before the law is also another core value upheld in accusatorial and inquisitorial systems of criminal prosecution. This value necessitates consistency in treatment of all parties regardless of the race, creed, socio-economic status, disability, gender or sexual orientations. It upholds that all are equal before the law and therefore everyone is entitled to equal protection of law without any discrimination. Moreover, everyone is entitled to equal protection against any form of discrimination and against any discrimination incitement. In essence, everyone is the same under the law and thus the law should be applied in the same way for everyone (Ashworth, 1998).

Lastly, both accusatorial and inquisitorial systems share the value of proportionality. The core idea emphasised in this value is that any penalty given to an offender should reflect a relationship between the seriousness of the crime and the seriousness of the penalty. In essence, the level of punishment or penalty rendered should be proportionate to the harm done. For instance, given that shoplifting is a less serious crime than robbery with violence, a shoplifter should receive less onerous penalty (Daly, 2011).

Question 3

Describe the traditional role of the Attorney General with respect to criminal prosecutions. What are the implications of this role for the Attorney General’s relationships with other members of the government of the day of which he or she is a member?

Traditionally the Attorney general’s role in criminal prosecutions is generally to represent public interests on behalf of the state during criminal proceedings. In this role the AG receives referrals from either the police, the office of the Director of Public Prosecutions and or the Magistrates office. The AG then takes appropriate action on the criminal case referred to him or her as a mediator in the case representing public interests (Moyniham, 2008).

The AG has discretion over the indictment of an ex officio if it is in the publics’ interest that such an indictment be forwarded. Moreover, the AG is mandated with the responsibility of advising the DPP on the move to take in relations the indictment of the ex officio (Moyniham, 2008). In this case the AG is charged with the responsibility of protecting the interests of the government in the litigation and prosecution process. Therefore, the AG does not just protect the government’s interests but as well protect the public interests to promote the rule of law. In essence, the AG serves to restore faith in the justice system and the belief that the government acts in line with the will of the people and within confines of the law (Ross, 2008).

The implication on the relationship between the AG and members of the government is such that the AG is at pains to strike a balance between the three arms of government namely; the judiciary, the executive and the legislature. Whereas, the AG is largely viewed as a defender of the judiciary and an advocate for the rule of law, the AG is also expected to maintain a coordinated effort between the three arms of government and ensure a harmonious coexistence especially for the central purpose of maintaining public confidence in the rule of law (Ross, 2008).

Furthermore, the AG is an advisor to cabinet on the appointment of judicial service appointees and this role requires that the AG develops a working relationship with all stakeholders especially government officials to ensure smooth operations of the justice wing of government (Ross, 2008).

Question 4

What have been the principal arguments for and against the creation of an “independent”, statutory office of Director of Public Prosecutions with principal responsibility for prosecutorial decisions and management of a prosecution service?

Proponents supporting the creation of an independent statutory office of the DPP often base their arguments centrally the rule of law. They argue that the rule of law must possess some form of generality and equality, this therefore means that the law should be open clear and relatively stable to be relied upon to deliver justice. Hence an independent office of the DPP would serve to be objective on matters of law regarding prosecutions (Cowdery, 2010). More so, the independence of the office of the DPP is crucial especially during decision making regarding prosecutions during court proceedings. Therefore, the public must be convinced that the DPP’s decisions are not influenced in any way by external powerful forces for the DPP to sustain public faith in the justice system (Cowdery, 2010).

Conversely, critics against the creation of an independent statutory office of the DPP often argue that the prosecutions freedoms should not go unchecked this is specifically important in ensuring that the office is not taken advantage of by individuals with vested interests. Therefore, the office of the DPP should be regularly appraised and ensure that the office of the DPP is bound by the same laws that bind the individual and if the law is abused, the DPP is not exempt from facing justice (Cowdery, 2010).

In addition, the mandate rendered to the DPP comes with great responsibility to the public and therefore requires accountability of the DPP regarding the decisions and course of action of the office. The limits to the prosecutor’s freedom extends to the requirement by law that the prosecutor conduct him or herself in a transparent manner when making decisions regarding court proceedings. Furthermore, the prosecutor must consult with stakeholders, for instance witnesses, the victims and police in gathering evidence before decisions are made that affect these parties (Cowdery, 2010).

Those against the creation of an independent statutory office of the DPP also argue that prosecutors’ autonomy would limit transparency in the office of the DPP. Therefore, autonomy should not be rendered to the DPP’s office. Instead, the prosecutor is not only required to consult widely with parties engaged in the court case in making decisions but also that the DPP’s office be subject to public scrutiny. Public knowledge of the court proceedings is important in ensuring that the DPP does not abuse freedoms extended to the office. This can be enhanced through media coverage of court proceedings, similarly the prosecutor must make known the criteria used in arriving at decisions made based on the law and set standards expected of the DPP’s office with regard to its mandate (Cowdery, 2010).

Question 5

What are the main arguments that have been put forward for and against police acting as prosecutors rather than just investigators?

The main argument against police acting as prosecutors rather than just as investigators is that the objectivity in the officer’s case may be lost due to several underlying issues. First, the credibility of the charges brought forward may be as a scheme to secure career development and therefore the prosecutor (who is the Police) may exaggerate the charges brought against the defendant (Moyniham, 2008). Notwithstanding, the guidelines under section 11 (1) (a) of the DPP’s Act provide that the police should ensure consistency, clarity and transparency in the exercise of their prosecutorial function (Moyniham, 2008). Malice still remains an issue that haunts prosecution by the police. Therefore when police are act as prosecutors the situation is bound to worsen.

Secondly, the justice system is such that if the investigator is the prosecutor then the defendant stands disadvantaged in the justice system. Moyniham (2008) points out that the law shall be well known through good disputation and this is evident during court proceedings. Hence, the attitudes of the protagonists i.e. those of the prosecution against the defence and vice versa can be compromised to find common ground such as to dispose of the case given certain common interests at play.

On the other hand advocates for police involvement in prosecution give reasons such as the need to present a strong argument from the arresting officer. This is such that the evidence is compelling enough when presented by the arresting officer or an officer knowledgeable about the case. In addition Moyniham (2008) denotes that this is a means of saving on resources that may be used in sourcing for witnesses who may not be available or difficult to contact. As a result this would work towards eliminating delays of cases due to witnesses or police officers who may have moved or cannot be found.

Furthermore, the police are legally allowed to settle minor offences by instigating court proceedings. According to Moyniham (2008) the police can summon a defendant to appear for a hearing under the ‘Police Powers and Responsibilities Act 2000’. Similarly, the police through the ‘Justices Act 1886’ can also make summons or complaints about the defendant in a court of law. Subsequently, the independence of the prosecution ensures that the separation of powers is preserved, that the rule of law is respected and adhered to and also that democracy is achieved and sustained (Moyniham, 2008).

Question 6

What is meant by the “independence” of prosecutors, and why is it thought to be so necessary and important? How is it sought to be ensured?

Independence of prosecutor is simply the freedom of the prosecution to carry out their mandate without interference or influence from external sources. Such external sources may include influential powers in the Judiciary, the government or private corporates. According to Cowdery (2010), the prosecution has a responsibility to the public to instil public confidence and public faith in the justice system. Hence, the prosecution should be free to make independent decisions; otherwise if in the eyes of the public the decisions of the prosecution are seen to have been compromised for one reason or the other the public would lose respect for the functions and practice of the prosecutor’s office. In addition, the public prosecution is supposed to strike a balance between the expectations of the public on issues that are divisive. To ensure accountability in the decisions made, the prosecution must at all times be independent so as to be accountable to the public on its conduct during certain legal proceedings (Cowdery, 2010).

In order to achieve the “independence” of prosecutors, firstly prosecutors should be free from attacks from politicians and commentators who should refrain from influencing court proceedings. Such individuals should not employ their financial or political influence to compromise the course of justice. Moreover, the prosecution should be assured of security of tenure and should be protected from haphazard dismissal (Cowdery, 2010).

Secondly, there should be established laws and guideline that spells out the prosecutor’s functions, responsibilities and accountability. Hence, a well-defined mandate would inform the scope of the roles of the prosecutor. In line with this legislation laws should also be enacted that would serve the purpose of evaluating the performance of the prosecutor’s office over time. Ultimately, this would improve on the prosecutors accountability (Cowdery, 2010).

Thirdly, the prosecutor’s office should be furnished with adequate resources to ensure the smooth flow of its activities and functions. In addition, the prosecutor must be availed or provided with adequate training to ensure that professional standards are uphold . More so, this would ensure efficiency and effectiveness of the prosecutor’s obligations (Cowdery, 2010).

Question 7

What kinds of factors are public prosecutors expected to take into account in making decisions with respect to the conduct of prosecutions, and what sources of guidance can they look to as to what weight to give to such considerations in making such decisions?

Several factors influence the prosecutors conduct with respect to prosecution. Foremost the prosecutor is supposed to be independent in making decisions as a lot hangs in the balance with regard to the autonomy he/she enjoys in making prosecution decisions. Furthermore, the decision making process is not straight forward and should be objective. Hence, the prosecutor should employ skill in deciding between competing considerations basing on knowledge, experience, values and common sense (Cowdery, 2010).

The prosecution is supposed to conduct themselves in a manner that portrays fairness and integrity. In the same spirit, the prosecutor mustn’t betray public trust and faith in the justice system but rather strive to sustain it. Therefore, the first obligation of the public prosecutor is responsibility to the public in loyal allegiance. Hence, this serves to instil public faith in the justice system and the independence of the prosecution (Cowdery, 2010).

The prosecutor therefore has a mandate that requires him or her to be accountable to the decisions he/she takes in prosecution during court proceedings. Thus, to assure that there is accountability in the decisions made, the prosecutor must consult widely with stakeholders’ involved or engaged in the court tussle. This therefore means that the prosecutor must consult with the police, witnesses and victims in making crucial decisions on the case. In consulting with stakeholders the prosecutor extends a chance to these parties to air their views commendations and or grievances with regard to the course of action/decisions to be adopted (Cowdery, 2010).

Moreover, the prosecutor is expected to ensure that his decisions are of expected standards. The prosecutor may achieve this by clearly outlining the guideposts and procedures followed in arriving at such decisions during the court proceedings (Cowdery, 2012). To further enhance transparency in the decision making the prosecution can invite the public and media to independently audit his/her conduct during the court proceedings as regards decision making on the part of the prosecution. Therefore, the prosecutor must carefully balance the scales of justice considering all angles and weighting this against the issue at hand relying on his better judgement and knowledge of the law to make appropriate decisions (Cowdery, 2012).

Question 8

Why do we have exclusionary rules of evidence in the common law criminal trial process? Explain with a couple of examples how exclusionary rules are applied to restrict evidence that may be introduced in a trial, and the kinds of values and/or policy objectives that they are designed to reflect.

Generally, exclusionary rules of evidence exist in common law criminal trial process so as to ensure that the process is fair to all involved parties. These rules are often enforced so as to ensure the legality of the process. They ensure that the evidence administered was obtained in the rightful way and it exemplifies the requirements of the law as far as the admissibility of evidence is concerned. Exclusionary rules of evidence also exist in common law criminal trial process so as to ensure that only relevant evidence it administered before the courts. Often times, most courts have a backload of cases and have no time to go through every other evidence presented by the prosecutor or defence therefore, rules of evidence exist so as to ensure that only evidence that is relevant to the case is administered (Arenson, 2011; QLRC, 1998).

According to the Evidence Act 1977(Qld),
although the contents of an evidence may be relevant to a court case, the evidence may be turned down if it violates two key exclusionary rules of evidence namely; the rule against hearsay and the secondary evidence rule. The hearsay rule provides that, a second hand testimony heard from a different party who has not attended the court proceeding is not admissible. For instance, if person A tells person B that he has seen person C stealing from the cashier, as a general rule, person B cannot give evidence of person’s A statement at person’s C trial. Person A has to be available to give an account of what he or she saw. The hearsay rule not only applies to verbal statements but also non-verbal communications and document contents (QLRC 1998). The secondary evidence rule provides that when a party relies or uses words in a document for any purpose as a general rule, they must produce primary evidence or original document of the content used (QLRC, 1998).

Exclusionary rules of evidence are designed to reflect the principle of legality. In essence, the evidence presented must adhere to the requirements of the law as far as the admissibility of evidence is concerned. These rules are also designed to reflect burden and standard of proof. These rules necessitate that, any evidence introduce in court must effectively supports a case. The evidence presented must also be sufficiently persuasive (Arenson, 2011; QPILCH, 2009).

Question 9

Defence Counsel are only mouthpieces for their clients because of the private contractual agreement binding them.” How true is this statement? Discuss in light of the ethical issues that guide criminal defence.

Defense counsels are indeed mouthpieces for their clients because their contract agreement with the client binds them to represent their clients to the best of their abilities regardless of conflicting ideals or views. Sometimes defense counsels face the dilemma of represent people they know are guilty. Working to represent such people requires some level of motivation. The motivation for most lawyers, as Smith (2006) found out, is the desire to identify with the legal profession. They have been perceived to be acting the role of the client’s mouthpiece because they often come with tough arguments for their client; even when they know the client is wrong (Blake and Ashworth, 2004). The contract between the defense counsel and the client is a legal contract. This implies that they are bound together in a legal profession. Under the legal professional, it is believed that the word guilty cannot be assumed and only has to be proved. This is the general principle that governs criminal trials and it states that the accused person has the right of freedom from punishment until proven with moral certainty that they are guilty. The role of the defense counsel is to represent factual arguments which would have been made by the client if they had the knowledge and skills to do so (Blake and Ashworth, 2004; Smith, 2006).

Defense counsels have the duty to represent their clients in a resolute and honorable manner and treat the tribunal with fairness, respect and courtesy. Lawyers act on behalf of their clients because in cases where their clients deny guilt, it becomes more desirable for the lawyer to assist their clients using facts rather than let the judge make the decision on their own. This is the legal responsibility that the counsel has and is bound to this task by the contract he has with the client. While undertaking the defense, the lawyer enters into a contract with his/ client and pledges to devote the skill and knowledge they have to define the accused against the charges. Smith (2006) found out from lawyers that representing those who are guilty is just part of the job as long as the counsel has entered into a binding agreement with the client (Blake and Ashworth, 2004; Smith, 2006).

Question 10

How should a criminal defence lawyer respond to someone who asks him or her how s/he can defend an “obviously guilty accused”? What obligations do defence counsel have which might limit or restrain what they can ethically do in defending their clients?

In a case where a defence lawyer is requested to defend an “obviously guilty accused”, the defence lawyer should respond in manner as to justify the act of defending the guilty. The lawyer should refer to principle that governs criminal trials. The legal system provides that defence attorneys should provide a good defence to the guilty and leave it to the judge to do justice. According to these principles, the defendant’s lawyer should act lawfully and utilize all means that are objectively honest so as to avert the verdict of the accused. The defense counsel is required to be confined to facts which are objectively true. Through the facts, the lawyer is required to act in a manner that will make the judge render a verdict that is contrary to the guilt that was committed by the accused. While defending the client, the lawyer is duty bound to act using all lawful means (Shirvington, 2006).

In a scenario, where the lawyer is aware that the client is guilty, he has to choose to undertake the contract of representing the client or he/ she may decline the contract. Once the lawyer agrees to undertake the case, it is an agreement that the client will be defended through all lawful means and this shall be done with the knowledge that such a defense where the client is obviously guilty; albeit to the attorney, is moral and right. While carrying out the defense, the lawyer is bound to act with loyalty and confidence to the client. The defense counsel is required to disclose all information in their knowledge to the client’s disposal so as to act in the best interest of the client. In addition, the lawyer is obliged not to put the own interest of the solicitor or anyone else before the interest of the client. With such an obligation, the defense counsel has to act in the best interest of the client (Shirvington, 2006).

Question 11

Discuss the features and procedures of the International Criminal Court which might minimise the risk that the criminal justice which it administers is not simply “victors’ justice” or justice in the interests of the most powerful nations. In your view, are these adequate?

The proceedings and features of the ICC that ensure there is no victor’s justice are found in article 13 (a), 14, 18. One of the features of these proceedings is the provision that a state may voluntarily refer a case to the ICC when it feels that there is a situation in which there have been more crimes in the jurisdiction of the court. This is the decision of the state and no state is forced to refer a case to the ICC. Moreover, the state, while referring the case, gives the prosecutor of the ICC an opportunity to investigate whether the accused should be accused for committing such crimes. In addition, the prosecutor is given time to evaluate whether the information provided is sufficient enough for the case to proceed and after determining this, the prosecutor shall initiate an investigation (Hiscock, 2002).

If reasonable basis for the case to continue is provided, the prosecutor notifies all member states (state parties). Furthermore, the ICC gives the opportunity for the state to apply for deferral of the case. This implies that the ICC prosecutor is determined to carry out the prosecution in a transparent manner and not in a way that would only satisfy the victor. The ICC has been granted the power to proceed with prosecution by the state parties through the Roman Statute and can enforce a sentence reflecting any such responsibility. Therefore, the ICC has attempted to set up procedures that protect control of the court by powerful nations. The decision to prosecute is not subjected to political control because they are made at the ICC prosecutor’s office and cannot be subject to control by state party countries (Hiscock, 2002).

Question 12

International criminal tribunals, as global institutions, also face their own unique institutional challenges. Bringing together judges, prosecutors, and other court personnel from different backgrounds and legal cultures creates obstacles to efficient trials.” Do you agree with this statement? If so why? If not why not?

Given that international criminal tribunals, comprise of judges, prosecutors, and other court personnel from different backgrounds and legal cultures, it is inevitable for such tribunals to experience challenges revolving around diversity. Consequently, this may affect the efficiency or effectiveness of the tribunal since it may be difficult for judges, prosecutors, and other court personnel from different backgrounds and legal cultures to work together cohesively. Each personnel in the tribunal has different values, ideas, views or perspective thus when working together there is bound to be conflict or a disconnect. While some elements of the law are similar and have been adopted internationally, there are other sets of laws that have been set up by the individual countries from which the court personnel come from. The practices followed by the personnel may also be different. In addition, the codes of practice may differ from country to country. This implies that when individuals are selected to work with the international tribunal, they have to come to a certain understanding on how they would carry out their practice.

While some members may be willing to reach some compromise based on what they believe, or what they do not believe, some may not. Such dilemmas pose more hurdles to the whole judicial process of the tribunal. However, this challenges are not good enough reasons for the system to perform inefficiently. This is because the court personnel at the tribunal are professionals who share an understanding of both their country laws and international laws. Therefore while carrying out their duties they are able to decipher what is appropriate or inappropriate.

Question 13

It has been suggested that the role of the Prosecutor of the ICC is inescapably ‘political’. What aspects of the Prosecutor’s role might support such a view?

Principally, as outlined in articles 15 and 42 of the Rome Statute of the International Court, the office of the prosecutor is charged with the responsibility of receiving of referrals or “any substantiated information on crimes within the jurisdiction of the court” and subsequently, based on their evaluation, examine them and proceed with investigation and prosecution. In articles 54 and 55, the statute also outlines the role of the prosecutor in initiating investigations and the duties and powers of the prosecutor with respect to the investigation (ICC, 2011). It is these duties and powers conferred to the prosecutor by the statute which makes their role political. Significantly, article 15 confers discretionary powers to the prosecutor to initiate investigations once the prosecutor concludes that there is a reasonable basis to do so. Therefore, the prosecutor has the discretion to make a judgement call on whether information presented to him on crimes, or their own proprio motu investigations, is within the jurisdiction of the court (ICC, 2011).

In consideration of the crimes defined as falling under the jurisdiction of the court by the statute, the prosecutor plays a political role by exercising their discretionary powers in determining whether the crimes committed are international in nature and therefore beyond prosecution by the host state’s judicial system. While the judicial system of the state may be independent, it is essentially a creation of its political system which is designed to maintain social order. Therefore, in receiving referrals or information on crimes and proceeding to investigation, the prosecutor assumes the role of restoration of order or administration of justice- which is a critical function of government (Hiscock, 2002). The prosecutor’s discretionary powers can also be viewed as a mechanism of restoring social order in cases where political systems, in their evaluation, have failed. As an example, before a prosecutor can prosecute someone for genocide, they have to substantiate mass killings as a fact and demonstrate intention to destroy a group in whole or in part. This would essentially be an assessment that the court’s jurisdiction has primacy over the judiciary by the state’s political system (Hiscock, 2002).

Question 14

The conduct of investigations by the prosecutors in the temporary or ad hoc international criminal tribunals is closer to the adversarial model than that of the International Criminal Court, which is closer to the Inquisitorial model. Discuss.

The conduct of prosecutors in the international criminal court often exemplifies an inquisitorial model whereas that of a prosecutor in international criminal tribunal exemplifies an adversarial model. For instance, in the international criminal court, the prosecutor’s key role is to institute trials by prosecuting rather than persecuting. This implies that, during court precedings the prosecutor adopts a fair or even-handed approach. He or she sheds light on the core issues afforded by the law that the defence counsel should exploit. The prosecutor in international criminal court must do their best to secure prosecution however this must not be done at the expense of fairness. By nature prosecutors in international criminal court focus on a full and fair prosecution and conviction. Conversely, the key aim of prosecutors in international criminal tribunal is to prosecute and ensure conviction of the suspect. The prosecutors’ main focus is to convince the court to convict the defendant. Rather than, shedding light on the core issues afforded by the law that the defence counsel can exploit, in international criminal tribunal the prosecutor attempts to rebut or confute the evidence or arguments put forth by the defense counsel(Bohlander, 2007; Knoops, 2007).

Evidently, the conduct of prosecutors in the international criminal court often exemplifies an inquisitorial model whereas that of a prosecutor in international criminal tribunal exemplifies an adversarial model. Nevertheless, it is worth noting that, both international criminal court and international criminal tribunal incorporate some elements of inquisitorial and adversarial model. The rules and procedures observed in these two proceeding often epitomise a mixed or hybrid model consisting of both inquisitorial and adversarial elements (Bohlander, 2007; Knoops, 2007).

Question 15

What is it that “restorative justice” programs or proposals typically aim to “restore”? Indicate what factors you think need to be considered in assessing the likely theoretical and practical limits of such programs in being able to achieve such “restoration”?

Restorative justice programs or proposals incorporate retributive and therapeutic models of justice. The key aim of these programs it to restore or reinstate members of a community after they have been shuttered by the negative impacts of crime. In essence, this model of justice seeks to empower the lives of ordinary people who have been affected by crime. Moreover, it accentuates on repairing and strengthening relationships thereafter the power of healthy relationships are used to resolve the emerging conflicts. Facilitators and decision makers promote outcomes that are less geared towards punishing and stigmatizing offender. Instead they focus on ensuring that the offenders take the responsibility of amending their behaviour so that they are integrated into the community as law abiding citizens. In essence a restorative model aims at restoring justice (Johnstone & Van Ness 2007; Liebmann 2007).

Assessing the likely theoretical and practical limits of restorative justice programs in being able to realise “restoration” requires that factors such as time and finances are taken into account. This model to justice is often time consuming and expensive since it involves a series of processes that require a lot of time and resources. Due to lengthy processes involved in restorative justice systems it is somewhat difficult for parties involved to attend or commitment fully to attendance since they also have to attend to other issues. As a result the process of restoration is compromised. Furthermore, financial constraints also act as an impediment to achieving restoration. This approach to justice often requires the involvements of stakeholders such as counselors, clinical psychologists and lawyers thus adequate finances are needs so as to effectively facilitate this programs. Hence, the lack of adequate finances may limit the achievement of “restoration.” (Hennessey, 2005).

Question 16

Much of the literature on “restorative justice” emphasizes the importance and desirability of involving “the community” more directly in the determination and dispensation of “justice” in the resolution of disputes. How, and by whom, in your view, should “the community” be identified and represented in an acceptable “restorative justice” program.

Community involvement is critical to the success of restorative justice processes since community members offer insights about the underlying issues affecting a community. Community member can be involved through models such as community restorative conferencing and restorative circles. For instance, community restorative conferencing engages a wider circle of participants. It integrates meeting structures between offenders, victims and their immediate families and friends. These conferences focus on exploring and identifying solutions for dealing with the negative impacts of crime. They also provide victims and other affected parties a platform to confront offenders by expressing their thoughts and feelings, asking questions and recommending a way forward. Similarly, restorative circles enable the participation of the community when it comes to offering support to offenders so that they can be integrated into society as law abiding citizens (Johnstone & Van Ness 2007; Liebmann 2007).

The participation of family and friends of victims and offenders is crucial in restorative justice process since they can offer their loved-ones moral support to overcome challenges facing them in the course of the process. Moreover, the participation of church-based organisations, community based organisations or groups, magistrates, police prosecution branch and community legal service in critical in the realisation of success (Johnstone & Van Ness 2007; Liebmann 2007).

Question 17

What are the implications for an accused in choosing to participate in a ‘family group conference’ rather than face a conventional criminal trial? What incentives are there for such a choice?

As compared to conventional criminal trial, family group conferences are lengthier and emotionally draining. Family group conferences occur over a long period of time and explore issues more in-depth than conventional criminal trial. As a result, an accused person may feel mentally and emotionally drained since his or her actions are constantly evaluated. The accused may also be forced to face their accusers and come into terms with the gravity of their actions. Moreover, an accused person may be required to show remorse for their actions and enter into an agreement that stipulates that they will not reoffend. In case, they break the terms of the agreement they are bound or subjected to the penalties of the agreement. Furthermore, an accused person chooses to participate in a family group conference they may be expected to abide by a curfew as part of their conference. The curfew may limit their personal freedom of movement or engaging in behaviours such as intake of alcohol (Hennessey, 2005; King, 2009).

Despite the fact that, family group conferences can be mentally and emotionally draining and limit the freedoms of an accused, there are certain incentives that the accused are afforded when they choose to participate in family group conferences. For instance, the accused may be offered counselling and therapeutic services. These services can enable them to address traumatic issues and develop necessary coping skills. Secondly, family conferences may offer life skill training programs that may equip accused with relevant knowledge and skills that may enable them to become self –sustainable in their later life (Department of Communities, Queensland Government, 2011).

Queensland 18

What arguments are advanced in favour of establishing a “truth and reconciliation commission” (TRC) rather than just prosecuting people for past crimes? What risks do you think such a choice may involve?

The establishment of a truth and reconciliation commission in solving past crimes was largely influenced by the need to settle differences that existed between Aboriginals and White settlers in Australia. This move was to a great extent informed by the fact that the differences in perceptions of what is considered as just by Aboriginals are quite different from the perceptions of justice of the white settlers. According to Marchetti & Daly (2007), the aim of the truth and reconciliation commission is to converge traditional laws with modern laws such that the Aboriginals feel that they are part of the justice system and have a say on the law in seeking justice. Furthermore, the hearings of the truth and reconciliation commission are held out of court and in most cases outdoors at a location that the community attaches some cultural significance (Marchetti & Daly, 2007). The ultimate aim of the truth and reconciliation commission is to make the justice more culturally acceptable between indigenous communities and white settlers.

Proponents of the truth and reconciliation commission cite advantages related to reduction of over representation of the Aboriginals in issues of historical injustices (Marchetti & Daly, 2007). Therefore, the TRC is a means of solving disputes with authority of the court outside the confines of the court to enhance participation of major stakeholders in the case. Daly & Hayes (2001) refer to this arrangement as restorative justice where meetings between the victims, offenders and their supporters take place in the presence of a police officer and a conference convenor. The meeting then yields solutions and the outcome is a decision on whether to fine the offender or simply the offender makes an apology for the offence committed.

The implications of a restorative justice arrangement or TRC are such that structural changes of the judicial composition must be considered to include staff from the Aboriginal community (Marchetti & Daly, 2007). Therefore all parties must be adequately represented in the hearings. In this approach, the central aim of the TRC is centred towards social, political and economic change in race relations by resolving matters of historical injustices.

References

Arenson, K. (2011). «Rejection of the Fruit of the Poisonous Tree Doctrine in Australia : A Retreat from Progressivism.» The University of Notre Dame Australia Law Review 3(13):17 -68.

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