Under the national government of Australia, the territories have the responsibility and powers to the majority of social problems affecting the residents. The parliament has the authority to make laws on these social issues. Legislative powers of criminal justice are given to the six states and two territories. Thus, there is no one crook justice system in Australia since all areas have independent systems such as the courts, corrective offerings police, and prisons. These institutions have different responsibilities. For instance, the courts are supposed to shield the rights of the suspects, hear appeals, make judgments, make decisions on bailments and provide a proper image which portrays there is justice. Moreover, the prisons are supposed to hold individuals on remand, prepare the inmates psychologically for release and deliver events, which nurture the skills of the prisoners. Courts in Australia cannot be trusted because of their failed mandate to provide justice as stipulated by the rule of law.
The paper will discuss the various barriers that are encountered in attaining justice in the Australian courts. Furthermore, the paper will analyse the aspects of criminal justice system through the Aboriginal courts. It will discuss the involvement of the prosecution panel in the decisions concerning the treatment of women and other vulnerable individuals thus demonstrating why the criminal justice system is not fair and therefore leading to injustice. Criminology will be used to investigate these aspects and compare the diverse approaches to the criminal justice system thus illustrating why the elements of the system are faulty. The paper will show the elements, which the Australian court system is supposed to change to achieve justice. A significant focus of specialized courts are the Aboriginal courts around Australia that are constructed to allow Aboriginal people to have fair and just access to the law through a ‘hybrid’ court. This enables Aboriginal people to be directly engaged in the court process and enables the elders to relay Aboriginal law to the court to ensure fair treatment of the offender. ‘Aboriginal courts’ is a loose term that unless specified refers to any aboriginal court including Koorie Courts (Victoria), Nunga Courts (South Australia) and Murri Courts (Queensland) as well as other courts that have a recognized specialist jurisdiction. However, there are several critical issues with the Aboriginal Courts.
Gender plays a vital role to the unfair criminal justice in Australia. This is evident when the courts explore the sexual offenses and the treatment of women and the impact it has on the adoption of restorative justice. Again adopting a critical criminologist approach, the most significant critique of implementing restorative justice across all criminal offenses is undoubtedly from feminists, emphasizing the presence of power relations in crimes against women. These arguments have been particularly valuable in evaluating the problems of applying restorative justice techniques to more sensitive cases such as rape, sexual assault, and domestic violence (Blagg, 2008 p. 127). The most significant point of this critique is that the priority of any intervention between women and their significant other, be it male or another female, is that the primary aim is to ensure the protection of victims, usually women, and children. As the violence or sexual offense is not a discrete act, but rather quite specific, it is clear that restorative justice cannot cover all bases in its current form. This is because one cannot assume that different parties will co-operate together to achieve restorative justice and will be capable of providing necessary support for victims that are in a structurally disadvantaged and vulnerable position. It can be deduced from this, that restorative justice cannot and must not be the only avenue to achieving justice and that sometimes in these sensitive cases, for the betterment and safety of the community that retributive justice is in order.
The explanation surrounding the injustice that some women and particularly children in the courts, in an interrogative manner they are approached with which can have adverse psychological effects upon the victim (White and Perrone, 2010 p. 351). There has been a long-standing call to initiate programs and methods which recognize factors that can further harm the victim, such as delays, testifying more than once, having to be face-to-face with the offender and harsh cross-examination in an attempt of the defence to discredit the victim’s statement. Recommendations revolve around therapeutic jurisprudence, with the idea put forth that criminal justice professionals and judges should have the in-depth training of emotional and psychological impacts of the court process to be utilized mainly when dealing with children and vulnerable persons to ensure they are treated sensitively throughout the trial process (Cuneen, 2008 p. 290). Moreover, the human rights commissions in Australia are concerned about how people with disability are handled by the criminal justice system. There is injustice to disabled children and adults who are accused of crimes and witnesses. Lawyers are not allowed to investigate disabled people because they do not take the allegations seriously since they believe that the disabled cannot give evidence. Moreover, the rules of evidence do not permit individuals with disability to provide evidence using required communication support like the sign language or interpreters and argumentative communication devices. Therefore, this may lead to diverse judgments from the judges depending on their attitude towards the disabled.
Mistakes by the Judges
In observing the criminal justice system more broadly by utilizing a critical criminologist perspective, one will see several flaws within the court system and its proceedings in failing to be impartial and fair, most notably through the jury system. Peers use the jury system in criminal cases only for indictable offenses to uphold the right to a trial. In the 21st century, the increase of technology has become a predominant issue in the instance of jury cases, particularly in cases where there is a significant amount of media attention. It has led to a distrust of juries and is, therefore, challenging the right to a fair trial (Freiberg and Carson, 2010 p. 155). For some years, courts have been able to maintain the integrity and impartiality of jurors by having the ability to efficiently shield them from pre-trial publicity. However, the increase of technology with new forms of communication such as social media has made this difficult in recent years. Thus, the issue of how to maintain a fair and just trial for the defendant and victims has risen.
The second problem with juries that creates a barrier to justice is the practice of peremptory challenges. That is the ability of the prosecution or defence to dismiss a juror for no reason only and has been subjected to criticism and calls for their abolition. Furthermore, it has been suggested that peremptory challenges are made by the parties to ‘stack’ the jury in favour of their client. They are exercised based on stereotypes about different groups of people from across the community. An example of this, although not an Australian case, still exemplifies the issues behind peremptory challenges and the results of jury stacking. Zimmerman vs. state involved the shooting of Trayvon Martin. It illuminated how the jury can be stacked, with five white middle-class women and one Hispanic woman (Hall, 2016 p. 260). Therefore providing the jury composition and failing to provide a cross-section of the community and controversially reflecting bias as reflected in the media (‘George Zimmerman trial juror reveals details from deliberations in Trayvon Martin murder case,’ 2013). Peremptory challenges, therefore, undermine the principle aim of the jury in providing a cross-section of the community for producing as little bias and encouraging impartiality.
Limited Range of Offences to be heard
It is problematic that Aboriginal courts only allow for a limited range of offenses to be heard, such as the Koorie Court in Victoria, by just obtaining jurisdiction to the equivalent of the County Court. It can be seen that due to the narrow scope of their authority and action that it appears enthusiastic that the Aboriginal courts will result in a substantial decrease in imprisonment rates for native criminals. This is another significant issue for achieving justice for all parties of the criminal justice system in regards to Aboriginal offenders if there is no reform to the necessity to plead guilty (Jones, Weatherburn and McFarlane, 2008 p. 20). On the other hand, there is a sharp criticism of the establishment of Aboriginal courts as a whole and whether it is just to separate them from the ‘white’ Australian, considering that Aboriginal courts signify the continuity of the colonial actions of relaying fellows of the minority communities to police force. However, this criticism is flawed within itself as the aim of Aboriginal courts is to knit Aboriginal law and Australian law together to develop a common ground of justice and distinction of what is right and wrong. To fully achieve this though, it is clear that there must be further reforms to the criminal justice system about the Aboriginal law.
Reforms for this include the abolishment of the necessity for a guilty plea, to maximize the potential for just outcomes from criminal offenses. It removes the pressure for accused Aboriginal offenders to plead guilty to be heard before their elders and representatives of the ‘white law.’ Another idea for reform is having further involvement of the elders to be given the necessary resources to extend their work into more issues of the criminal justice system apart from the court of law, such as jails, and have the ability to communicate with offenders on their behaviour (Powell, Bowden and Mattison, 2015 p. 505). This will also encourage the idea of restorative justice and work on improving the relationship between the offender and both the Indigenous and non-Indigenous community. Furthermore, this proposed reform would uphold and exemplify justice in the criminal justice system for the Aboriginal community whenever an Aboriginal person is convicted, as they ‘need the Koori Court to establish a level of tolerable conduct in their society’ through the involvement of Elders.
Pressure to Plead Guilty
The offender must plead guilty to be eligible for their trial to be heard in an Aboriginal Court. This is undoubtedly the most significant issue around Aboriginal courts, as Aboriginal people plead guilty too readily. This is because there is a widely held perception that some Aboriginal offenders only plead guilty to charges because they only observe their trial as being ‘just’ when there is at least one elder present, so the offender has access to a culturally appropriate treatment option (Richards, 2011 p. 409). Pressure to plead guilty should be based on sound legal advice founded on the amount of weight that the prosecutor holds. Prosecutors should have undisputed facts to prove that a suspect is guilty and that he or she should plead guilty.
The evolution of the Aboriginal Courts may be observed as a reluctant reaction to the commendations by the “Royal Commission into Aboriginal Deaths in Custody 1991”. The body was introduced to investigate the increase in the number of demises in the supervision of Aboriginal individuals in prisons across Australia (Willis, 2011 p. 1). It presented a list of commendations regarding the handling of Aboriginal people across the court structure with particular emphasis upon Recommendation 104 which suggested ‘‘that there be consultation with discrete or remote Aboriginal communities about appropriate sentencing”. Despite this, it is clear that states and territories are reluctant to engage with Aboriginal communities (Stubbs, 2008 p. 7). From all of the states and territories across Australia, Victoria has exemplified less enthusiasm for developing police conferencing as a method of diversion for criminal offenses. Thus, it can be deduced that as there is so much focus on punishing the offender, it is clear that the individual court is unjust because Aboriginal people wishing to have their case heard before elders must plead guilty. Therefore, ultimately pressuring Aboriginal people into pleading guilty.
It is evident that the Australian criminal justice system as it stands is undoubtedly flawed and unjust. Criminal injustice is caused by barriers such as gender, the pressure to plead guilty, disabled people, limited range of offenses to be heard by individual courts and the mistakes by the judges. However, with several reforms to various aspects, it has a promising and optimistic future. This paper has explored numerous issues within courts of the criminal justice system, with a focus on specialized Aboriginal courts, jury systems and the court’s treatment of vulnerable persons in sensitive cases. It has demonstrated that there must be a focus on different types of justice for varying cases. This was exemplified by stating that Aboriginal courts must focus on restorative justice while cases involving more sensitive issues such as domestic violence and sexual assault cannot necessarily focus on restorative justice, but must look towards therapeutic jurisprudence and uphold the nature of retributive justice due to the specific nature of the cases.
Ultimately, the Australian criminal justice system has several elements that obstruct the achievement of justice and lack impartiality and fairness in some respects. However, with the possibility of reform, there are significant prospects for an indeed just system. The federal government of Australia should, therefore, implement rules that ensure that the courts offer justice to the suspects. Those judges who make rash judgments and discriminate people by gender, religion, disability, and status should be prosecuted. Moreover, defendants should not be forced to plead guilty by the lawyers or the court. This is because suspects have the right to either plead guilty or not by defending themselves.
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