The Bail Act works in order to protect the community and prevent future offences, to protect individuals whom might be at risk if the accused is granted bail and to ensure the integrity of the justice system by ensuring the accused appear in court while avoiding the possible interference of evidence and witnesses. (Australian Government, 2017) The aim of the Act is to maintain the assumptions of innocence and liberty, while also taking the publics opinions and interests into consideration. Although granting and refusing of bail follows certain provisions and constraints, in recent years’ stakeholders have not been provided with suitable outcomes in relation to the process of bail. The Bail Act 1980 (QLD), is effective, however suggestions could …show more content…
Innocent before proven guilty is a human right in Australia, however the justice system ignores this, as the Bail Act enables defendants to be placed in custody before proven guilty. According to the Victim’s Human Rights Act 1996 (NSW), the Victims Right Act is essential for any ‘balancing rights’ queries. This Act allows victims to mention important and sensitive topics such as domestic violence, this law is effectively used as evidence in order to guarantee human rights. The Act focuses mainly on protecting the victims, however the main focus should be aimed to stop criminals in the first place. If the Bail Act and police powers were used effectively, this would prevent the need for Victims’ Rights Act. (Jorge Branco, 2017) States that a 52-year-old man murdered his wife before taking his own life. The man was placed in custody until his bail application was approved by police. Due to his ‘fragile mental state’ it was suggested that he was an ‘unreasonable risk of causing self-harm or harm towards others’. Once he was granted bail he was placed in a hotel in Brisbane CBD, with a restraining order against his wife. However, this did not stop him from murdering her. The law needs to be amended, that any offender granted bail should have to participate in a risk assessment conducted at the …show more content…
According to statistics from the Queensland Criminal Law System over 40% of defendants were granted bail in 2014, and 28% were placed on custody, before proven guilty (Australian Bureau of Statistics, 2014). These are the risks that the society is exposed to when a defendant is granted bail. Those at risk include the witness and government, whilst the stakeholders will be delayed in the process of prosecuting the court case against the defendant. There is a risk that the policies of judicially resolving the matters of the criminal liability and imposing criminal sanctions on those found liable, will be discouraged by the defendant’s release. There is risk that there is a possibility that the defendant will commit crimes while on bail. (Herladsun, 2013) States that Bayley raped and murdered Jill Meagher. Although convicted as a sexual predator previously, Bayley should have been refused bail. The Bail Act was insufficient, because he was endangering the safety of another person, however the court ignored this. Because he was a
Victims’ rights include being informed of the investigation, being able to make a witness statement, being informed of the charges laid against the accused and being treated with sympathy and compassion. (Charter of Victim’s Rights NT 2016). The rights of the accused are outlined Article 14 of ‘The International Covenant on Civil and Political Rights’, which states that the accused must; be informed of the charges laid against them, have adequate time to prepare and choose a counsel of their choosing, be tried without undue delay, be tried in the presence of the court, not be compelled to testify against themselves or confess guilt and be compensated by the court if wrongfully convicted (ICCPR 1966). These rights must be upheld to ensure equality before the law, however, when neglected justice is denied as illustrated in the Mallard and Raggett
The conviction of guilty offenders when adhering to the guidelines of the NSW criminal trial process is not difficult based on the presumption of innocence. However, due to features of the criminal trial process, established by the adversarial system of trial, cases can often involve copious amounts of time and money, particularly evident in the case of R vs Rogerson and McNamara where factors such as time and money are demonstrated to be in excess. In addition, characteristics of the adversarial system such as plea bargaining has the power to hinder convictions due to the accused having the authority to hire experienced and expensive lawyers to argue their case, hence maintaining their innocence.
Criminal law attempts to balance the rights of individuals to freedom from interference with person or property, and society’s need for order. Procedural matters, the rights of citizens and powers of the state, specific offences and defences, and punishment and compensation are some of the ways society and the criminal justice system interact.
Conclusion: Congress hoped to achieve a greater degree of accuracy in assessing flight and danger of arrestees through establishing the Bail Reform Act of 1984, which set objective guidelines for judicial officers in assessing release conditions including taking into account for the first time the probability an offender will re-offend while on pretrial release. It was also hoped that the Act would bring back the community's trust in bond setting practice. Overall, the benefits of the Bail Reform Act of 1984 do exceed any detriments, but some problems do exist. These problems include the uniformity in the application of the Bail Reform Act of 1984, as well as the interpretation of dangerousness to the community. Through future legislative and executive reform, this Act will go through multiple changes until these issues are addressed.
This is offered to provide an incentive for “good behaviour” and ultimately rehabilitation during a sentence. The granting and restriction of parole is outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW), and allows those with sentences of more than three years to be released after they have served their minimum sentences. The encouragement of rehabilitation upholds the rights of the community and offender, as the offender’s rights are not undermined by through excessively restricting their freedoms and the reintroduction of the rehabilitated offender into society minimises the threat of reoffending. However, the reward of parole for some offenders has resulted in community dissatisfaction. The Age article “Adrian Bayley should not have been on parole” represents a social concern regarding the leniency of parole for violent sexual offenders. The release of the evidently non-rehabilitated offender resulted in a breach of parole and the sexual assault and murder of Jill Meagher, a 29 year old Melbournian woman. As a result of the injustice of the lenient decision and subsequent community retaliation, new parole laws were introduced in Victoria during 2014. This legislation is outlined in the Corrections Amendment (Parole) Act 2014, and the penalty for breaching parole includes up to three months jail and/or a $4200 fine. Thus, there is greater justice for the victim and especially the community through the discouragement of crime for offenders who may not be rehabilitated and are released on
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
R N Howie and P A Johnson, Annotated Criminal Legislation NSW, 2011-2102, (Lexis Nexis Butterworths 2012) 17769-1774
Allerton, M, Butler, T, Champion, U & Kenny, D 2003, 2003 NSW Young People in Custody Health Survey: A Summary of Some Key Findings. Australian Institute of Criminology, [Online]. Available at: http://aic.gov.au/events/aic%20upcoming%20events/2003/~/media/conferences/2003-juvenile/kenny.ashx, [Accessed 14 April 2011].
...ystem and are seen as a credible sentencing option because of the restorative and rehabilitative effect it has on offenders by allowing them the opportunity to give something back to the community and providing them with education and work experience. There is a lack of evidence to suggest that rehabilitation is neither an effective or non-effective sanction. The use of probation as a stand-alone sanction has decreased over the years with probation now being combined with more severe sentences. When combined with rehabilitative programs probation reduced crime outcomes by 16.7%. The common perception of the general public is that increasing the severity of sentencing will reduce crime, however empirical evidence suggest that this is not the appropriate response. Public dissatisfaction with sentencing in Tasmania is often due to a lack of knowledge and understanding.
Abel Magwitch was one of the two acquitted criminals in Dickens' Great Expectations. The convicts in this novel were sent to either Newgate prison or shipped to Australia where they were placed in penal settlements. Magwitch was sent to New South Wales for his connections with Compeyson (the other convict) and was sentenced on felony charges of swindling and forgery. Convicts sent to penal settlements suffered the same abuse that slaves were exposed to. The difference lies in the fact that these men and women were in these settlements because of crimes committed such as pickpocketing and murder. Such settlements were New South Wales, Van Dieman's Land, Devil's Island, and Botany Bay, to name a few. In fact, "Botany Bay meant convicts and was looked upon merely as the fit receptacle of national crime" (Inglis 4). Convicts were sent to these settlements as a way to curb the number of felons in the British Isles. Settlements created a place to live and work in order to change or correct the character of the convict. During the nineteenth century, convicts made up most of the population of Australia with a mere fraction of actual free emigrants. The Australian penal settlements helped to develop a new penal theory as well as different view of Australia. By looking at the journey of the convicts, their service, jobs, authorities, punishment, and freedom, we will be able to understand the complicated theory of penal ideas and the plight of Magwitch, Pip's convict.
Double jeopardy, a legal anachronism in the twenty first century in Australia? Double jeopardy is a law under which Queensland still governs in order to protect the defendant of a crime they have already committed. With double jeopardy laws being created so long ago there has been much speculation on the effect of this protection law ever since, as it allows a once defendant, found guilty, who has been sentenced to jail time to never step foot in a court again no matter what new evidence comes to light that may enhance their prison length. With Queensland becoming (do research on qld to find if first or not) the last state to overhaul it double jeopardy laws, evaluating these law changes to Queensland's new double jeopardy laws will investigate
The statement "It is better that 10 guilty persons escape than that one innocent suffer" summarises and highlights the mistakes and injustices in the criminal justice system. In a just society, the innocent would never be charged, nor convicted, and the guilty would always be caught and punished. Unfortunately, it seems this would be impossible to achieve due to the society in which we live. Therefore, miscarriages of justice occur in the criminal justice system more frequently than is publicised or known to the public at large. They are routine and would have to be considered as a serious problem in our society. The law is what most people respect and abide by, if society cannot trust the law that governs them, then there will be serious consequences including the possible breakdown of that society. In order to have a fair and just society, miscarriages of justice must not only become exceptional but ideally cease to occur altogether.
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
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,
Stiff opposition by police to bail applications even when investigations are over and the accused not likely to flee, has become the norm. The court must be alive to the fact that liberty, a fundamental right, is taken away in such instances