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EFFECTIVENESS OF THE LAW

By Mary Doolan Coonabarabran High School

Factors to be considered when evaluating the effectiveness of law in achieving justice

In aiming to achieve justice, the criminal law has a difficult task. It must balance the rights of the individual (both the accused and the victim) and the rights of society. By applying certain criteria students should aim to think critically about the effectiveness of our criminal justice system in achieving justice for the individual and for society.

Director of Public Prosecutions, Nicholas Cowdery addresses many contemporary issues in respect to the effectiveness of the criminal law in his 2008 speech on the issue.

A. Factors to be considered when evaluating the effectiveness of law in achieving justice for individuals

Equality:

The law aims to treat all people equally, irrespective of gender, race, ethnicity, religious convictions and social status. Students should be aware however that FORMAL EQUALITY under the law does not necessarily lead to EQUALITY OF OUTCOMES. This is because of INSTITUTIONALISED INEQUALITY which exists within society. For example, a millionaire and a pensioner may receive the same speeding fine (formal equality) but the outcome is not equal as the pensioner has significantly less ability to pay the fine.

Further, many would argue that our adversarial system of justice is inherently inequitable. More money can allow an accused to avail themselves of specialist or more experienced legal representation. People on middle incomes will not satisfy the Legal Aid Commission’s means test and yet may not be able to afford private legal representation. The accused has the right to a fair trial and yet how can this be achieved if the accused is not able to obtain proper representation? (Students should recall the High Court’s decision in Dietrich v R discussed earlier).

Young people ARE treated differently in our criminal justice system. Few would argue that this treatment, whilst unequal, is not just as it reflects society’s acknowledgement that young people are vulnerable and are our future and therefore the focus of our criminal laws in dealing with young people should be on diversionary programs and rehabilitation.

From the perspective of the victim, issues of equality also arise. Charge negotiation (plea bargaining) can challenge the notion of equality before the law. Steps to redress the lack of victim’s rights have been taken in the past 10 years with the passage of the following:

• the Victims Support and Rehabilitation Act 1996 (NSW) – which provides for victims compensation in some circumstances and
• the Victims Rights Act 1996 (NSW) part two of which contains a ‘Charter of Victims Rights’.

For more information students can visit the Victims Services website of the NSW Attorney General’s Department.

1. Accessibility:
   
   The extent to which the law promotes access to justice has three essential elements, time, cost and knowledge:
   
   
   • Time: the criminal justice system is fraught with delay. This increases the trauma of victims and can call into question the reliability of evidence. Further the accused may spend considerable time on remand awaiting trial. This is especially problematic if the accused is later acquitted at trial. (If convicted the judge or magistrate will usually back date any custodial sentence to commence from the date that the accused was first taken into custody).
     
     Certain aspects of our criminal justice system lead to delay and reforms could target overcoming such delay. Some would argue that our adversarial system inherently is a slow process as each side attempts to “grind the other down”. Perhaps extending the sitting hours and days of courts (most courts sit from 9.30am to 4.00pm) on weekdays only) would lessen the time it takes for criminal matters to be finalised.
     
     
   • Cost: many people cannot afford legal representation whilst the provision of Legal Aid clearly addresses this problem in part, the Legal Aid budget is limited and many people on middle incomes do not qualify for legal aid and yet still cannot afford to pay for private legal representation.
     
     Students should consider what possible reforms could be implemented to make legal representation an affordable option for more people.
     
     
   • Knowledge: knowledge of legal processes and of their rights is essential if both the accused and the victim are to be treated fairly. For the accused access to both legal advice and representation is of vital importance. The problems with accessing Legal Aid have been discussed above. Further, the state and federal governments provide websites such as LIAC and the respective state and federal attorney generals’ websites. Such information does not solve the problem of access to legal representation but it does at least provide a basic level of information about court processes to those sections of society who have literacy levels sufficient to enable them to access this information. (Students should note however that the general profile of a criminal is someone with low levels of education. Nicholas Cowdery’s 2006 speech, Crime in the community is recommended reading for an overview of literacy and education levels of prison inmates.)
     
     Victims too have the right to be informed about the criminal process. Once a prosecution is commenced they receive information from the police or Director of Public Prosecution. It may be difficult for victims who due to language or other barriers to be aware of their rights including even their basic rights to make a complaint to police.
     
     Students should consider what reforms could be implemented to increase society’s access to legal knowledge.
     
     
2. Enforceability:
   
   For a law to be effective in achieving justice, it should be enforceable. This increases society’s confidence in the criminal justice system. Society expects that criminal laws will be enforced and certainly this is central to a victim’s view that justice has been served. It is difficult to enforce laws which do not reflect the value and ethics of society generally. Some would argue for example that the offence of ‘using offensive language’ is antiquated and should be removed from the statute books.
   
   Enforcement is dependent upon police becoming aware of the offence, investigating it, and if it is proven, punishment being determined by the courts. If crimes are not reported then clearly enforcement of the law is problematic. For example, incidents of domestic violence and sexual assault are estimated to be much higher than those actually reported to police.
   
   Because punishment following a finding of guilt and conviction is central to the enforcement of our criminal law, Alternative Dispute Resolution (ADR) mechanisms are not an effective means of resolving criminal matters in a just manner.
   
   
3. Resource Efficiency:
   
   The state law and order budget is limited therefore it is vital that public monies are spent as efficiently as possible. At present the top three spending areas are on police, the courts and corrective services. These are all largely REACTIVE (although necessary) measures. Given the high recidivist rates of those on parole (discussed above under imprisonment) and the high cost of prisons, one could argue that more money needs to be spent on PROACTIVE measures aimed at preventing crime (see crime prevention, discussed above).
   
   Students should consider what measures could be implemented to improve the effectiveness of our criminal justice system to deliver just outcomes from the perspective of resource efficiency. For example, many have hailed the state governments move to majority verdicts for juries (from May 2006) as an efficient step as it will reduce the incidence of hung juries and therefore the expense and delay associated with running a second trial.
   
   
4. Protection and Recognition of Individual Rights:
   
   The processes of the criminal justice system aim to protect the rights of both the victim and the accused. As the accused is presumed innocent until proven guilty, various rights are guaranteed to the accused to support this presumption. In relation to the victim, historically they were regarded as little more than a prosecution witness. Legislative reform in the past decade has aimed to recognise the rights of victims [Victims Rights Act 1996 NSW and Victims Support and Rehabilitation Act 1996 (NSW) ].
   
   A good area for students to consider in relation to victims rights is the recent legislative reforms of the conduct of sexual assault cases. Some reforms include:
   
   
   • the right of child victims to give evidence by CCTV
   • the removal of the right for unrepresented accused’s to cross-examine victims. The Court will instead appoint a solicitor to conduct the cross-examination.
   • the right of a sexual assault victim’s transcript evidence, to be tendered as evidence in a second trial in the event that the first trial ends as a mistrial. This saves the victim the trauma of having to give evidence a second time (and resulted from the Skaf case).
   • the move to codify the law re ‘consent’
     
     
   Students should be aware that it is very difficult for the law to balance the rights of the accused and the victim as these can be diametrically opposed. For example, some would argue that the third reform discussed above violates the accused’s right to a fair trial in the event of a retrial as if the jury has access to the victim’s transcript evidence only they lose the ability to assess the victim’s demeanour as he/she gives evidence, particularly under cross examination. The transcript also has the weight and power of the written word which could create bias against the accused’s version of events.
   
   Some of the rights of the accused include:
   
   
   • not to be illegally searched
   • not to have DNA taken without consent or a court order
   • to silence
   • to apply for bail
   • to legal representation (implied right Dietrich v R)
   • to change their plea (with leave of the Court)
   • to have interviews recorded
   • not to be detained without arrest
   • not to have prior convictions presented at trial (there is an exception, rarely applicable, in the event of similar fact evidence of a strikingly similar nature)
   • not to have illegally obtained evidence presented at trial
   • to appeal
     
     
   Some of the rights of the victim include:
   
   
   • to have their case reported and recorded
   • to have their case thoroughly investigated
   • to be informed of their rights and access to community services
   • to be informed of the progress of the investigation
   • to be informed of any arrests and charges
   • to be informed of any pleas/change of plea
   • to be informed of hearing dates and their role as witness
   • to be protected from the accused
   • to make a victims impact statement (after the trial re-sentence)
   • to make application for victims compensation

B. Factors to be considered when evaluating the effectiveness of law in achieving justice for Society:

1. Resource Efficiency:
   
   Students should refer to the discussion of resource efficiency outlined above. Students will recall that the inherent problem is that public monies available to spend on the criminal justice system are limited. Accordingly, the State should aim to spend its law and order budget as efficiently as possible. This is a difficult task. Whilst crime prevention measures such as targeting truancy and maintaining students at school to year 12 have shown some signs of working, there is still a perception in the community that monies would be better spent on more police and on the prison system. Others may argue that as law abiding citizens their money would be better spent on issues like health which they perceive as having a more direct impact on their life.
   
   Again, as discussed above under accessibility, the limits of funding to Legal Aid are also problematic in terms of efficient use of State resources to achieve just outcomes.
   
   The criminal justice budget must balance the rights of the individual and of society. This is a difficult task. Students should consider compiling a list of measures which they believe would improve resource efficiency e.g. extending court sitting hours and days.
   
   
2. Law as a reflection of community standards and expectations:
   
   For the law to serve the interests of justice it should aim to reflect community standards and expectations. This is a difficult task on two counts, firstly because Australia is a multicultural society which encompasses a wide range of cultural and belief systems and secondly because such expectations and standards are constantly changing. The challenge for Law Reform is to keep abreast of such changes (in itself a hard task given that the process of Law Reform can take considerable time) so that our criminal laws remain relevant to the community. Greater compliance with the law is a product of laws which have the support of society generally.
   
   In essence however, the community does share similar expectations regarding the behaviour of members of society and our criminal law does aim (and many would argue does) to reflect those expectations. For example, following the Port Arthur massacre in April 1996 in which 35 people were killed and 37 seriously injured, there was a public outcry demanding stricter gun laws. The Prime Minister, John Howard, took the initiative for and achieved uniform tighter control laws across the nation.
   
   Many would argue that the reform of sentencing legislation following the introduction of the Sentencing Act 1989 (NSW) (known as the ‘truth in sentencing legislation’) reflected society’s view that perpetrators of serious crimes should receive a serious punishment and that a sentence of life imprisonment should mean that the offender dies in gaol and not have the opportunity for parole after a number of years due to the old system of licences and remissions for good behaviour.
   
   It is often said that the tabloid press and radio ‘shock jocks’ with their ‘tough on crime’ approach reflect very strongly community standards and expectations. An interesting question for students to consider is to what extent (if any) do these media bodies REFLECT society’s expectations and to what extent (if any) do they CREATE them? This question was posed and discussed in Nicholas Cowdery’s 2006 speech entitled ‘Tabloid Justice ‘.
   
   It is recommended that students read this speech to gain further insight into what can be quite a controversial debate about our system of criminal justice and the extent to which it is ‘in step’ or ‘out of touch’ with what the community wants and the place of justice (in accordance with the law and in particular the role of law) within that debate.
   
   
3. Opportunities for Enforcement:
   
   Police are responsible for investigating crimes and arresting and charging the offender. They are also responsible for the carriage of the prosecution of summary matters. The DPP are responsible for the carriage of indictable matters. A decision has to be made by the State as to whether a prosecution should proceed. In very general terms, this will depend upon whether the prosecution can be satisfied that a matter will likely succeed in the courts. Students should bear in mind that the state’s financial resources are limited and hence it is not possible nor indeed desirable that every alleged crime be investigated and prosecuted.
   
   If the State decides not to prosecute then it is open for a victim to bring a private action against the alleged offender. This would not be a common occurrence not least because of the expense that the applicant would have to bare.
   
   
4. Appeals and review:
   
   A defendant has the right to appeal to a higher court against the severity of their sentence. In addition if it is claimed by the defendant that an error of law was made in the original hearing (or an error partly based on the facts and partly grounded in law) they can also appeal to a higher court against their conviction.
   
   For serious crimes, our system of justice is based upon the decision of the jury at first instance and thereafter the system allows for appeals against conviction. This is an effective means to ensure that justice for the accused is not lost because of an error made at first instance.
   
   Further, the prosecution can appeal if they believe that the sentence imposed is too lenient. As discussed above under the criminal process and the role of discretion, the prosecution must consider very carefully whether to bring such an appeal, balancing the public interest and the further expenditure of public monies.
   
   In rare circumstances, a Royal Commission may be set up to inquire into an alleged wrongful conviction or serious misconduct. This was the case in the Lindy Chamberlain matter where her conviction was quashed following a Royal Commission into the conduct of her trial for the alleged murder of her daughter Azaria. At the time of the Commissions’ finding in 1988, Chamberlain had served six years of a life sentence. She was granted over a million dollars in compensation.
   
   As discussed below, the process of Law Reform also enables review of our criminal laws to be undertaken. The public, via submissions, have the right to have a voice in this review process.
   
   
5. Balance of individual rights and values and community rights and values:
   
   In seeking to achieve justice, the criminal law and our justice system faces a difficult task. It must aim to recognise and protect the rights of the individual, both victims and the accused (as discussed above) and yet it must also seek to protect the rights and values of the community.
   
   Criminal law is public law. A crime is an act or omission which HARMS SOCIETY and which is punishable by the State. On this basis the balance most likely tips in favour of protection of community rights and values. This is evident in the federal government’s recent Anti-Terrorism Legislation. This legislation enables a person to be detained, without charge for a period of seven days – a period which can be extended by the courts as in the case of Mohamed Haneef. Whilst many would argue strongly that such legislation violates a person’s long held right to not be detained without charge, others would state that in this post 9/11 and Bali Bombing world, such measures are clearly necessary to protect society as a whole.
   
   Mandatory sentencing is another area of the law where, by the removal of judicial discretion on sentence, the interests of the community (in punishing the offender) have been given greater weight than the need to protect the rights of the offender via a sentencing process that enables a Judge or Magistrate to give proper consideration to all relevant factors including subjective matters relating to the accused.
   
   Students should understand that there is no ‘quick fix’ to this complex dilemma of balancing individual and community rights. What can be said is that justice for the community should not come at the expense of justice for the individual. Students should research the Crimes (Serious Sex Offenders) Act 2006 (NSW) and form a judgement about whether this act, in seeking to protect the community has tipped the balance too far against the rights of the individual. Whilst there are protections in place (a Supreme Court order must be obtained) this act allows an offender to be detained notwithstanding the fact that they have served out their entire prison term. The NSW Attorney General has said that it will only apply to a small number of repeat sex offenders who have shown no signs of rehabilitation and who pose a high risk to the community by re-offending upon release.