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Sunday, October 10, 2010


What Kinds of Behaviour is Criminalised? Why?

The kinds of behaviours that are criminalised are those that upset social order. They are seen as harmful to the whole community, not just to the victim of the criminal behaviour. Criminal law has a far reaching scope when it comes to classifying undesirable behaviours. Criminal behaviour can be classified as by the type of act or omission performed, that is, the types of crime. For example, offences against the person classify crimes where a person is the direct victim on the behaviour (murder, rape, assault). Other than this there are two main classifications of all offences that decide upon the seriousness of the act or omission. They are summary and indictable offences. Summary offences being the less serious matters (e.g. Public drunkenness), heard in local court. Indictable offences are the more serious crimes, heard in district or supreme courts. Indictable offences are crimes such as murder, rape or armed robbery.


How does the practical operation of the criminal law process influence enforcement of the law?

The practical operation of the criminal process influences enforcement of the law in that:

  • Limited police resources mean that police cannot pursue every case. Police discretion operates at all stages of the enforcement process because of this practical consideration. There may be a relationship between the use of police discretion and the higher crime rates among Aboriginal and Torres Strait Islander Peoples.
  • Police must try to gain evidence against criminals in order to convict them in court. This practical consideration means that police use everything at their disposal to gain evidence. This can sometimes infringe on the rights of the suspects and the general community e.g. the use of informers, the collections of DNA samples.


Do people show the same respect for all criminal laws? Why?

People usually obey most criminal laws all the time. This is because certain people, due to a belief or custom follow the law because it is the right thing to do. Similarly many laws simply regulate behaviour which individuals generally agree should be regulated. Also, the fear of sanctions imposed for committing a crime act as a deterrent for the majority of society. Moreover, the general desire for protection means that people want a legal system to protect them and so they must comply with its restrictions in order to reap its benefits.


On the other hand, many people do break some criminal laws from time to time. Laws regarding speeding, for example, are broken by most drivers at some time, usually because of impatience or inattention. Other laws, such as those relating to alcohol consumption or the stealing of small items are also broken more often than more serious criminal laws, because people see the particular law as being unimportant, have the perception that they will not be caught, give into temptation and see it as thrilling to break the law.

Is the adversary system the best system for achieving justice in criminal trials?

The adversarial system was designed to be used with trial by jury. Though the adversarial system has served common law countries well, there are some faults in its configuration. These include:

  • The adversarial system may be less likely to discover the truth because of the high standard of proof and rules of evidence such as hearsay, opinion, relevance and the acquisition of evidence. This infringes on the rights of society as the person perpetrator may be found not guilty due to a technical glitch, such as not allowing evidence, when it is clear the accused is guilty.
  • The adversarial system was developed for juries which are infrequently used today.
  • Oral examination of witnesses, allowing them to respond only to questions asked, may prevent the 'full truth' from being known. Valuable information may never come to light.
  • The skill of barristers and solicitors may differ; therefore the person with a better lawyer (i.e. the person with more cash flow) may be unfairly advantaged.
  • Witnesses, though they may be truthful, can be easily swayed by a skilful barrister and make a bad impression and therefore may not been seen as credible.
  • Some people argue that it is fairer to look at oast records of the accused. In the adversarial system of trial, the past record of the accused is generally only admissible during sentencing, not during the trial process itself.

Despite these flaws, it is argues that the adversarial system does achieve justice in criminal trials because the judge ensures both sides of the case follow the rules of evidence to ensure a just outcome. The adversarial system also allows the right of appeal, which is advantageous for the individuals and society as they are protected if a judge makes an error of law in a trial and the accused/or victim (lenient sentence) are able to contest.


What international instruments have been developed with respect to international crime?

International crime has in large been left to the individual nations to deal with it via domestic law. Due to the unenforceable nature of international law, it is very difficult to impose these laws, The International Court of Justice (ICJ), International Criminal Tribunals (ICT), the International Criminal Court (ICC), sanctions and extradition treaties chiefly enforce international criminal law.


The ICJ is the judicial organ of the UN. It has 15 justices who each serve a term of 9 years and are elected through the UN general assembly and the Security Council. The ICJ can only hear cases between nations, thus, is only concerned with public international law. It hears public criminal cases, such as crimes against the international community. The effectiveness of the ICJ depends on the cooperation it receives, and this is restricted by the consensual nature of international law.


ICT have been established for specific investigations, principally for war crimes and crimes against humanity. Since the first war crimes tribunals in the late 1940s and early 1950s, trials and convictions for serious crimes against humanity have been rare. Despite this, serious crimes such as genocide have existed in the last decade. Trials are rare because the ICJ and declarations and conventions regarding war crimes are not effective international enforcers of these laws.


The ICC was established by the UN to handle war crimes, genocide and other crimes against humanity. It has permanent legal authority and is a way of addressing the current problems concerning the enforcement of international criminal law. The ICC was officially established on July 1, 2002 and is yet to hear a case and therefore its effectiveness cannot be greatly commented on.


Sanctions are actions taken by the international community towards a state which is seen to be attempting to, or has broken, recognised international law. There are 5 main types of sanctions; moral, political, economic, financial and physical. Sanctions may coerce states into abiding by international criminal law. However, there are limits to their effectiveness. Imposing sanctions on states can harm other states. This can make it difficult to get these other states to agree to sanctions. Sanctions often harm the citizens of a state rather then its leaders, and so the effectiveness of this is not tremendous.


Extradition is the legal process where a person accused of committing an offence or who has been convicted of an offence in one jurisdiction flees, resides or is found in another jurisdiction, is detained and then surrendered to the jurisdiction where the offence or conviction took place. It is an effective procedure if states consent to signing extradition treaties and obeying them.


What role could be played by an international criminal court?

Due to the problems with the ICJ and the nature of war crimes tribunals, the UN has established a court known as the International Criminal Court (ICC) that was designed to handle war crimes, genocide and other crimes against humanity. It has permanent legal authority and is a way of addressing the current problems concerning the enforcement of international criminal law.

The ICC was officially established on July 1, 2002, under the Rome Statute and is yet to hear a case.


What International regimes and instruments have been developed with respect to extradition?

Extradition is based on agreement between states. It is decided by specific extradition treaties between countries. Extradition occurs when a person is handed over by one state to another state because that person is accused of a crime in the latter state. This is based upon the principle that offenders should not be able to escape justice merely by escaping to another country. Extradition is a major international method of dealing with crime over national boundaries, transnational crimes and to a lesser extent, crimes against the international community. Extradition is based upon bilateral and multilateral treaties. If two nationals do not have an extradition treaty there is no legal right to extradite and offender. Another principle of extradition is that an alleged offender can only be tried for that offence in the state where it was committed. Extradition instruments include: -

- Bilateral treaties - e.g. Aust and USA have an extradition treaty

-Multilateral Treaties – e.g. the European Union has the 1957 European Conventions on extradition.

- United Nations Conventions – the convention on genocide has a section on extradition.

- Extradition law is also contained in customary international law.

Not all offences are covered by extradition treaties. The offences that are extraditable must be considered an offence by all members of the treaty. Political, religious and military offences are usually not included in extradition treaties. The international concept of rendition is where an offender will be returned from one state to another to be tried, where a formal extradition treaty does not exist. There is no right to rendition and no formal processes for it to occur.


Extradition is an effective enforcement procedure if states consent to signing extradition treaties and obeying them. The main aim of extradition is cooperation between states and for states to be able to enforce their domestic law.


There is no general international agreement of extradition. This is because each state has different moral, ethical and cultural viewpoints on what is an offence. The nature of domestic law and the role of extradition in international law mean that extradition's effectiveness relies solely on state cooperation and consensus.                     

To what extent is there a proper balance between the rights of the victim and the rights of the community; and between the rights of the victim and the rights of the accused people?

The balance between the rights of victims and the rights of the accused have swung more in favour of the victim in recent years with the introduction of Victim Impact Statements (VIS), counselling, victims lobby, support groups and youth justice conferencing. However, many victims, particularly victims of sexual assault, still have to undergo harrowing examinations in court, although this can be done via video feed, making it less painful for the victim by not being face to face with the accused. For the criminal justice process to be effective, the rights of the victims need to be recognised while the rights of the accused to a fair trial and a just punishment also need to be ensured. Giving too much regard to victims may infringe on the rights of the accused which will have the effect of creating an imbalance in the criminal justice system.


Similarly, the community has the right to have the criminal justice process operating efficiently and effectively. Problems with funding the Victim Compensation Scheme, in particular, may interfere with this right; however most members of the wider community sympathise with and support the rights of the victims.








What are the implications of plea bargaining for the notion of justice for the accused, the victim, the community and the efficiency of the court process?

In over 80% of criminal cases, the accused person pleads guilty to the charge. Sometimes the process of charge negotiation occurs in order to persuade the offender to plead guilty to save court costs and to be more efficient in the courtroom. Within the process of charge negotiation the prosecution and defence meet before the trial and the aim is to get the defence to plead guilty to a lesser charge, reduced by the prosecution.


Charge negotiation in one of the main ways discretion is used in the court and adjournment processes. This accused and the prosecution decide whether there will be a definite conviction, the nature of the charge and thus the likely severity of the sentence.


How effective are the various forms of punishment in achieving their objective?

There are a variety of punishments used in our legal system to sanction offenders for their wrong doings. Each punishment has a different objective, even though some are harsher than others.


A fine is one of the most minor forms of punishment available in our legal system. They are inexpensive for society and they are appropriate for minor offences. Their purpose is to deter by depriving the offender of money. This may not deter, it does not rehabilitate the offender, may be expensive for those on a low income and the opportunity to re-offend is still there.


A community service order requires the offender to complete a specified amount of unpaid work within the community in their leisure time. This is inexpensive for society, assists the general community and the offender may repair damage they have caused and so is suitable retributive. However, this may not deter and may not rehabilitate the offender.


A good behaviour bond requires the offender to agree to display good behaviour for a certain period of time. It is also inexpensive for the community and can rehabilitate the offender. However, the offender has the opportunity to re-offend; it may not deter and will be difficult to supervise conditions of the bond.


Home Detention requires the Offender to wear an anklet to wristlet which can be attached to a phone line. The anklet must be attached to the phone when the supervising officer rings, which can be any time. This punishment is suitable for non violent offenders and it decreases the prison population. It can also rehabilitate the offender. However, this punishment is only available in city courts and it tends to disadvantage the ATSI community who do not have access to home phone lines.


Periodic detention requires the offender to spend each weekend in gaol for a certain period of time. It is less costly than imprisonment and allows the offender to continue with education or employment. However, this may not deter the offender and they have the opportunity to reo-offend during the week.


Imprisonment, being the harshest punishment, incapacitates prisoners so they cannot re-offend – it is a serious punishment for serious crimes. Often the offenders cannot be rehabilitated due to the brutality and attitudes displayed in the prison. It is also very costly to keep a prisoner and it may not deter.


The main aim of the criminal justice system is to rehabilitate the offender. From the discussion above it is clear that not all punishments are effective in doing this and so it may be necessary to develop more effective ways in achieving rehabilitation for the offender so they can be released back into society to lead a law abiding life.

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