High Court under the microscope - The Eddie Mabo Case

Mabo v Queensland

This was a 1992 Australian High Court decision that was the first time in Australian history when the native title for the Australian Aboriginal People was recognized. Eddie Mabo brought the case to the high court on behalf of the Meriam People who are from the Mer Islands. This is in the Torres Strait area. The proceedings commenced in in 1982 after the Queensland Amendment Act was initiated.

The act worked to establish a system of land grants by trust for aboriginals and Torres strait islands. However, this system was inept and the mer islanders were unhappy.

The high court eventually received the case and was asked to consider whether indigenous Australians had a just and legal claim to their lands which could overturn the notion of terra nullius. Further the request to the court asserted that it was time for the common law to be ‘put to rights’

The success of the case was difficult to determine and it was largely regarded by the legal field as a mere test. Testing the court is very common as there are multiple complexities that run through the fabric of legal decisions. Issues such as;

·        Political values

·        Social concern

·        Financial constraints

·        Corporation concerns

 The High Court held that the doctrine of terra nullius was void. This doctrine had worked to import all English laws into the Australian country at the time of English colonization. This was done because the indigenous people were originally thought to be ‘uncivilized’ which gave the colonizers the right to claim the land as belonging to the British people.

The court held that the rules of reception that applied were not those that were originally called for but that the existing customary laws which were present at the time of settlement took priority over the imported English law. However, land rights could be extinguished by crown title. Any native title claims which were inconsistent with native title would be extinguished and the crown land would survive.

The decision was made by seven judges in five judgements of the high court;

Ø  Justice Brennan

Ø  Justice Deane

Ø  Justice Gaudron

Ø  Justice Toohey

Ø  Justice Dawson

Ø  Chief Justice Mason

Ø  Justice McHugh

There were several common threads of agreement between the five judgements. The basis of these threads of agreement is that the native title existed due to the nature of the indigenous use and connection to the land and that determined the nature and content of native title. It also rejected the concept of terra nullius and attempted to provide repudiation to those grounds that had lost the benefit of their lands.

The consequences of this decision are most commonly felt by corporations and land developers as they see the most of the native title claims. There is a difficultly in negotiating with many aboriginal groups who claim native title over key development areas. This difficulty is generally solved with skilled negotiators but can take some time.

Australian Court Series ; R V Adams

R v Adams (No 7) [2017] NSWSC 179

This case is interesting as it is a case taking place in 2017 for a murder in 1983. Unlike some criminal acts murder has no statute of limitation – or expiry date, after which the prosecution can no longer prosecute. The maximum penalty for murder, all around Australia, is Life imprisonment, so that is the penalty that many heinous crimes are given. However, as this is a murder from 1983, the court had to apply the law from the time. This was that the imprisonment for life was a mandatory sentence. At [4] Justice Button acknowledge that ‘the maximum penalty as it existed in 1983…speaks for itself with regard to the gravity with which the unlawful taking of the life of a fellow human being…was and is assessed by parliament and the community that it represents.’

The case facts, as recounted, are that in 1983 the offender offered the deceased a lift home. The deceased was drunk and had believed the false representations of the man that he was a police officer. He then drove her a short distance away, and possibly during intercourse – the facts are not agreed upon – he crushed her windpipe, killing the deceased. Her body was then stored in the boot and the offender took steps to clean the evidence. There was evidence adduced at trial that the offender had a history of strangling sexual partners who refused his advances.

This case is interesting as the judge was not required to determine guilt but relative seriousness of the offence. There were two opposing facts of the case that made this determination difficult the first was that the case was more serious because the offender had invaded the woman’s sexual autonomy and the murder took place during an act that was obviously dangerous to human life given her own level of intoxication.

The second fact that goes in favor of the offender is that the murder was unintended. There is a general acceptance that premeditated, assessed and planned murder is of greater seriousness than a murder occurring in the spur of the moment.

That being said at [16] the judge determined that while I appreciate the force of what defence counsel has said about the breadth of the concept of felony murder, this offence against a young woman in the prime of her life, simply for the sexual gratification of the offender, cannot be assessed as anything other than extremely grave.’

When sentencing the judge took into account the following;

-        Plead not guilty, resulting in no utilitarian discount

-        No mitigating factors

-        Has not shown remorse

-        Has not accepted responsibility

-        Previous rapes of similar description

-        His age is now 64

-        He has not been convicted of anything since 1974

Around the world legal courts have also become live to the issue that the considerable delays between getting arraigned, trial and sentence amount to some degree in delay of justice. In Canada it was determined that that a four year delay would be sufficient to constitute a delay of justice. However, this has not yet been determined in Australia.; R v Jordan.  

In this case it was discussed from [29-31] how the delay of justice proposition may apply to the offender. While he acknowledged that there was a strong between the murder and the charges, it was not by process of the law or deliberate delay of the authorities rather, and to use his honors own words, the matter is not to be equated with a case in which the charging of a person is delayed [or] he or she exercises his or her right to silence. Instead the delay in the resolution of the matter is to a large degree, attributable to the offender. [31]. It was determined that the delay should reflect to a limited degree the sentence.

Further to the determination of sentencing, it became at issue how the mandatory sentence of life imprisonment was to be treated. While it is no longer mandatory, it has come to be accepted in the court that the law does not operate retrospectively and the law that is in place at the time of the offence is that law that must apply to the offence; R v  Magnuson. However, it was hardly a year later that the law was changed. Meaning that the mood of the times when the crime was committed was not significantly different. Moreover, his honor acknowledged that it was general practice for crimes of a similar nature to serve 11 to 10 years before being released on parole. This inferenced a standard of treatment that the offender may have appealed to.

Then a similar case, not committed by the offender, R v Fleming was raised by defence as a potential sentencing guide. It accounted for an imprisonment of 21 years with a non-parole period of 16 years.

It was also accepted that the sentence must reflect the time in custody spent prior to sentencing.

Final determination factors

There was a lack of

-        Intention to kill

-        Multiple murders

-        Prior murders

-        Not a contract killing

-        Act of heinous cruelty, indignity, torture or mutilation

This are important to note that they are not present because they are standard elements in todays courts, where the ultimate sentence is imposed. It was for that reason that his honor was not satisfied that a determinate sentence would fail to reflect the gravity of what the offender has done; s61 of the Crimes (Sentencing Procedure) Act. [54].

In Australia, because it is the adversarial system victims aren’t often invited to the stand to explain how things have impacted them personally. That being said the courts invite victim impact statements to be submitted to the judge. This is something that the court may consider when determining the sentence that is given to an offender. They are not compulsory and only discuss how the crime has impacted the

 individual;

-        Physically

-        Emotionally

-        Financially

-        Socially

You can read more about them here.

His honor acknowledged that the two sisters who submitted impact statements spoke movingly of the pain that has been endured for decades as a result of the disappearance of the deceased...that pain had been made worse by not knowing precisely how she died. Many years ago, their parents went to their graves without any resolution of the mystery loss of their daughter.’

It was not made clear how exactly this added to the sentence, but it is inferenced that due to the serious impact the offender’s actions had upon the family of the deceased, his actions were deemed to be more serious than an act that had a lesser impact on the family.

Final Sentence

The offender was convicted of murder with a non-parole period of fifteen years and a parole period of 5 years, following the fifteen. This means that for fifteen years following this sentence the offender is ineligible to apply for parole. After that he is eligible to be released.

You can see that he has followed the guidance of R v Fleming and the general structure of sentences in which the non-parole period must be three quarters of the head sentence. 

Lulu Hensman

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 "The danger of identity assumptions"

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 – AWAITING DECISION. 

The danger of identity assumptions 

The case today is a case awaiting a decision. So I thought it would be interesting examine the submissions of the appellant. Submissions are papers written by defending council that outline the issues at hand. They are interesting to read – particularly for young law students because they show the application of law to legal matters. 

 Today’s case is about the use of evidence and its implications in a court of justice. When we see evidence, we like to assume it favors one side more than the other. However, in this case, you will see the impact of circumstantial evidence. Circumstantial evidence is a two-edged sword. From one angle it will support an argument and from another, it can defeat it. Phones are strong circumstantial evidence. The courts will often refuse to take the view that the accused did not have their phone on them. They can be used to track locations, motive, messages and previous history.   

CASE FACTS 

In the supreme court of South Australia Wesley Gange was convicted of shooting an Adrian McDonald. McDonald was killed in Parafield, South Australia. The prosecution argued that Gange shot McDonald. They claimed he had hidden in the boot of a car not far from where McDonald stood. McDonald and Gange were once in a relationship.

 The relationship had broken down and caused issues between them. Both of them were involved in drugs, firearms, and violent behavior. Gange had previously sold drugs to McDonald. 

His assistant Tristan Castle was sitting in the driver’s seat. Telecommunication records were used to show the movements of Gange and Castle’s phones. Before this event, Gange had sent texts to McDonald which were derogatory and contained threats.

 There was the use of an alibi for Gange. Gange’s girlfriend ‘M’ remembered seeing him at home on that day. However, disputes arose about the veracity of the evidence. She suffered from psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning. It was appealed to the Court of Criminal Appeal. The appeal was on the basis that the judge had failed to direct the jury properly about the evidence of Gange’s involvement. 

The evidence was highly circumstantial. There is was brought to light that Gange and M used multiple phones interchangeably. It is hard to discern who made what texts and who had which phone. It became more impractical when both Gange and M admitted that because of drug use they often didn’t remember where they were or what they’d done. When the judge failed to show the holes properly in the evidence, the jury gave the circumstantial evidence too much weight. The judge should have given it little weight. The failure to do so made the conviction unjust and inevitable. 

 SUMMARY 

The court believed beyond reasonable doubt that the appellant shot the deceased. They based this belief on telephone records, motive evidence, proof of planning and a confrontation via text. The text messages recorded on the phone of the accomplice, Castle. There were documents placing Gange in a different location at the time of the shooting. 

There were also tracked movements through his phone that placed him at the crime scene. Expert evidence pointed out that phones were not a confirmation of identity. It could never be completely confirmed who was on the other end of the phone. However, the courts overlooked this and claimed the evidence was an important¬part of proof. They were allowed to be equally considered by the jury. 

 APPEAL TO HIGH COURT 

The case went to the high court for two reasons

 - Court of criminal appeal erred in holding that the learned trial judge correctly admitted evidence of the appellant’s past possession of firearms 

- The court of criminal appeal erred by not finding that the learned trial judge misdirected the jury about the weight given to each piece of evidence. 

You have to have specific legal reasons for going to the High Court. You can’t just decide that you don’t want to accept the verdict. The Court of Appeal has the right to refuse you ‘leave’ to go to the High Court. 

WHY NOT BELIEVE THE EVIDENCE? 

The evidence appears to be valid. 

However, if you examine the circumstances under which the evidence appears you will realize that it is highly circumstantial. 

 Firstly, the location of Gange’s phone was unimportant. He had left it behind in Castle’s car. They had not met up for a few days. That makes the connection between his placement and the murder further removed. 

Additionally, it was possible that his girlfriend was using the phone. M had purchased and paid for the phone. Their friends recorded that couple was close and mixed communication devices often. They shared friendship groups. 

If M had been using the phone, anything she said could not be taken into account against Gange. Her medical issues, including paranoia, hallucinations, and delusions suggest that anything she said may not be true. 

 Evidence also confirmed that while Gange used this phone, he also had an additional prepaid phone. M sometimes used this prepaid phone. Connecting a particular party to a phone is impossible. The two did not identify themselves before texting. A phone number is only associated with the phone and not its user at the time. Therefore, the courts had to assume an identity for the phone. That identity could never be guaranteed. 

It was shown that others might have been in possession of the tracked phone. Gange could not identify the exact date that he had it return to him. Some evidence suggested that it had been in possession of others during the day of the murder. 

The value of the tracked movements lessened when applied to the social habits of the accused. The shooting occurred during social hours. But because of the use of drugs neither Gange or Castle kept reasonable hours. Thus tracking whose movement was where and which may have been faked was a concern. While Gange admitted that he sometimes didn’t sleep for weeks, the courts had to apply some weight to the fact that the tracked movements reflected a pattern of someone with relatively normal waking hours.

 ISSUES

 There are many more issues connected to this case. In fact, the submissions of the appellant are 22 pages long. However, I wanted to focus on the use of circumstantial evidence in criminal law. 

When used the evidence appears to make a conflicting statement about the right to fair trial. We are all familiar with this right. Therefore, committing someone on a circumstantial case alone appears unfair. 

The Bucca Case has not yet come to trial, but it will be interesting to see the High Court’s remarks upon the extreme reliance on the assumption of identity. 

 New technologies have increased the ability for police to track charged individuals. However, it also leads to confusion and greater misunderstanding. Phone numbers are not identity codes, yet it appears the court has begun to treat them as such. It would be interesting to remove the evidence of Gange’s phone and re-run the trial. My prediction would be that without the critical assumption that a phone indicates the identity of a person, no case could be completed.

 I look forward to hearing your thoughts on this issue. Also for those who don't listen to the podcast. This week I am celebrating two years of running my studyblr and theunderagelawyer.blogspot.com. In celebration I will be releasing a 'printables' package which will be available online in the next episode.

Kodak Black and plea bargaining - is this process really okay?

Dieuson Octave, also known as Kodak Black in his career as a rapper, left the courts happy. Today he was let off a 55-year maximum sentence through a process known as plea bargaining.

A plea deal was made. The deal allowed Koda to agree to do five years of probation and a year of house arrest brought the result.  He had fans calling for his release, showing their support by wearing ‘Free Kodak’ shirts. The overwhelming support of fans was likely an influencing factor for the prosecution’s eagerness to get him out of the courthouse.

The young rapper has gathered followers through the popular video platform Youtube. Well-known rapper ‘Drake’ has even featured his song ‘Skrt’ on his YouTube channel.  However, Kodak's career is plagued with a series of legal issues including assault and drug offenses. While the rapper stereotype matches the conflict with the legal system, the impact on his career would be significant. Some sources suggest this was part of the reason why Kodak was let off.

Lawyers Allan Stephen Zamren and Gary Kollin were both very pleased with the result. Their client will appear on the international music circuit shortly.

So what exactly is a plea bargain?

The term plea bargaining comes from the United States. In Australia, the practice is used as well. It is mostly commonly involved in criminal or civil penalty charges. Usually, the defense will bargain with promises of good behavior and house arrest in exchange for the prosecution recommending a non-custodial sentence.

A plea deal is where your legal team makes an agreement with the prosecutor to accept a lesser charge. That will most likely mean that you will have to enter a plea of guilty. You will plead guilty to a lesser charge.

In Barbaro v The Queen the issue was examined carefully. There the facts are unique. Accused Pasquale Barbaro and Saverio Zirilli were charged for involvement with drugs. The defense and prosecution had negotiated away from court benches. They’d reached an agreement on a sentencing deal.

The judge refused to accept the prosecution’s request for a non-custodial sentence. The judge then lay down his own sentence, upsetting the usual practice.

The case was taken on appeal to the high court. There the prosecution was on a matter of law. The high court had to consider where a plea bargain can be used to prevent the judge from exercising his discretion. It in that the judge as the superior legal mind is capable and should is not his discretion over the case. Usually, this isn’t an issue, but when the defense has bargained away a rightly deserved custodial sentence – can the judge do anything?

It was not a material error for the judge to refuse to accept the prosecution’s submission. The judge was allowed not to take into account any sentencing ranges from the prosecution or defense. The 2014 case was significant as it overruled the previous right for the prosecution to set the bounds of the sentencing range; R v MacNeil-Brown.

Kodak Black is not an isolated case of individuals freed from crimes by plea deals. In fact, he is probably one of the few cases where plea bargaining is just a simpler litigation process. Some litigants who benefit from plea bargaining faced serious crimes
.
Then plea bargaining becomes a threat to the safety of the community as a whole.

Carl Williams was a famous underworld figure. He of with three counts of murder and one count of conspiracy to commit murder. These serious crimes are usually reserved for the most heinous of cases. We’d all like to think they’re treated with the respect they deserve. However, plea bargaining minimizes the severity of the crime. In some cases, it can feel like there was no retribution at all.
Williams’ sentence was thrown away when the Victorian Office of Public Prosecutions struck a deal with Williams’ defense team. Barbaro v The Queen was a 2014 and Williams was trialled in 2007. Then the judge felt he had to follow R v MacNeil-Brown. That meant he accepted the prosecution's submissions and Carl Williams walked away.

So what’s the issue?

Some may find themselves supporting plea bargaining. On face value, it’s a great way of minimizing expensive court costs and negotiating your way out of a devastating custodial sentence. However, the private negotiation process can either force a guilty plea on an innocent accused or realign the sentence to something less serious than what it is.

Plea bargaining is somewhat of a double edged sword. It can save or ruin lives and the foundations of society at the same time.

It is also one of the most secretive processes of the criminal law system.
It is secretive because the negotiation takes place without any official recordings. There is no legislation that can referee this bargaining process and there’s no objective review tribunal. It harbors a little bit too close to the saying ‘you get the justice you pay for.’
If you can afford to hire a good negotiator, you could avoid a drug trafficking charge with a mere use of drugs fine and rehabilitation condition.

To pinpoint what you should be concerned about – realize that this plea bargaining process is entirely anti-democratic an d undermines the foundations of the Australian constitution. There is no jury watching the process. There is no law to ensure justice. Instead, there is just two rogue lawyers and an accused in a room.

It sounds a lot like the plot line of suits, and you would be right to think so.
Some people suggest that this entire process undermines the right against self-incrimination and the right to a retrial. After all, if you accept the wrong plea bargain, there're no files there for you to appeal against.

It’s a lot like an illusory promise. For those who are not familiar with the term, this refers to a contractual promise that has no legal force behind it. It lacks payment or consideration forcing the courts to ignore it.

A plea bargain carries no weight in an appeal court. That being said American courts have treated plea bargains like contracts. That, however, does require some documentation of the bargaining process. Many Australian lawyers prefer to plea bargain through a series of subtle changes and applications to the court. This slower, costlier process has no action in contracts and can take much longer.
Overall, plea bargaining is a well-established process of the courts. However, it can legally pervert the course of justice. Judges are seldom as brave as seen in Barbaro v The Queen. Requiring that plea bargaining becomes an above the table, recorded litigation process can help to ensure justice on both sides of the bench.

How to speed read like an expert

Hello everyone and welcome to another blog post on the underage lawyer.

 One of the topics that have been coming up frequently in my conversations with others is speed reading. It’s a skill that you probably only think about when you have three days to complete an essay, and you haven’t started researching yet. However, speed reading is an important skill that can assist you in everyday life. It shouldn’t be disregarded as useless skills. 

Those who want to pursue a career in law need to know that they will spend every day of their life reading. 


Client’s files can be anything from one to forty volumes long – and it’s your job to read and study them all. Reading is also the best way to expand your vocabulary and improve your thinking capabilities.

 Think of reading as upgrading technology. The more you do it, the better it gets. The less you do it, you eventually fall behind. Here are a few ways to improve your reading speed:

 1. Read a lot

 This is a basic essential. The more you read the faster you get. The less the read the slower you will become. Some scientific studies suggest that reading things on the screen of a computer is actually different to reading on paper. I’m not entirely convinced, but just to be certain you’re actually reaping the benefits of reading make sure you read both on and off screen. To improve your reading, think of it a little like sprinting. You have to run as fast as you can regardless of whether you can maintain the speed or not. When you are first beginning training yourself to speed read, don’t worry so much about comprehension. As your retrain your eyes to move along the page at a faster rate, you’ll begin to take more in.

 2. Pick the operative words 

One fatal mistake when it comes to non-recreational reading is that we read all of it. It’s very rare that all of the text will be relevant to you. To improve your reading pace identify what it is you’re looking for. Then pick three or four words that will describe that thing. From there you can run your eyes over the text. Every time you see a relevant word stop and read a few sentences surrounding the word. If it applies, congratulations. If it doesn’t apply, then keep skimming through. This way you’ll be able to ascertain just how relevant the material is. If you don’t see any words that seem relevant then either rethink your operative words or move on to the next paper. 

3. Read the first and last line 

There’s a lot to be said for introductions and conclusions. Remember learning about topic sentences in high school? Well, this is why you use them. Academic literature uses these to highlight what they’re going to say. When you’re in a rush, don’t bother with the rest of the paragraph. Just focus on the first lines of every article. By the time you reach the end, you’ll have a general idea of what’s being said. Additionally, if you read the last line of every paragraph, you’ll have a concluding statement and a linking statement. The linking statement usually explains how the next section will connect to the first. This is important because it will show you the pace that the essay evolves at and any assumptions that you need to be aware of. 

 4. Don’t sound the words aloud in your head 

When reading a lot of readers like to ‘speak’ the words in their head. This is a waste of time. Your brain is capable of comprehending the phrase without sounding it out. The more you read, the more you will be able to do this. But to begin with, help yourself to lose the habit by reciting random words in your head as you read. I began doing this by saying ‘aeiou’ over and over again while I was reading. To do this at first, it is best, to start with relatively simple reads. Try reading opinion articles or Buzzfeed pieces. They’re much easier to comprehend than academic literature and will build your confidence. You may be surprised at how much you can understand without having to focus too much on sounding out the words. 

 5. Dot point as you go 

A critical issue with speed reading is that people are concerned they can’t read quickly and understand the text. A simple way to of getting around this is to write one word describing the paragraph. Skim read the article as fast as you can and then summarize it immediately. The use of summaries in one or two words helps to lessen the fear of not understanding. The human brain is far less reliant on the sound of the words than people think. When reading the shape of the letters is just as important.

 6. When you don’t understand keep reading 

This may sound a little counter-intuitive. However, the biggest trap for slow readers is that they are hesitant to move on before they understand something. That will slow you down. Some points are poorly explained, and it will take multiple readings to understand. You need to know that if a point is badly explained it’s likely not essential to the argument and is irrelevant to your reading. It may also be that you’ll come to understand it when you read something later in the document. Your best bet when trying to rush your way through a massive pile of information is just to keep reading. Stopping and rereading things will break the rhythm of the reading. That may also cause you to read slower.

Australia, it’s time to put justice before wealth

-          First of all, this is my longest post yet! It is very heavy in theory and focuses on the benefits of the inquisitorial system. If you’d prefer a short read, please scroll down to the conclusion. Once again I’d love to read your commentary.

In Australia as a country that uses the common law system, we utilise the adversary system in our courts.

1.       A brief overview of the adversary system

The adversary system is a means of ‘searching for truth’ amongst a complex array of fact and law. It relies upon a battle ensuing between two parties; prosecution and defence.

A)     The prosecution

In criminal cases, this is the most critical element of the trial. The prosecution carries the burden of proof or the responsibility to prove guilt. However the prosecution cannot merely point fingers at the accused, they must also utilise admissible evidence to prove that the defendant is guilty beyond a reasonable doubt.

B)      The defence

The defence party must maintain that the individual is innocent until proven guilty. This pop culture reference also refers to the most essential element of the adversary system – no one must be assumed guilty.

                                                                  

The judge in the adversary system acts as a mere guide for the jury or an impartial scale of fact and law. Unlike the inquisitorial system, in the adversary system the judge must disengage their emotional considerations to provide a more business-like determination of legal fact.

Judges only meet the case when the trial begins and must have no interaction with it at any previous stage.

The adversary system works for both criminal and civil trials but only indictable offences (ones that are severe like murder, larceny, fraud) will receive the benefit of a jury.

-          Juries

Juries are a collection of the community which are between 15-12 in number. They are selected from the electoral roll (the list of individuals who are eligible to vote and then allotted to different trials. For those interested I have summarised the jury process below.

-          The Jury Process

1.       6000 names are selected from the electoral role. All of these names will be of people aged between 18 and 75 years old.

2.       The first disqualification occurs where there is an individual who is on the electoral role but does not have an adequate physical or mental state to carry out the important task of being a juror.

3.       Next persons who have an insufficient command of the English language or other reasonable prohibitive quality, such as being a member of the judiciary, are ineligible.

4.       This usually narrows the list down to 4000 applicants in which some may be disqualified. Disqualification will occur when individuals have received a term of imprisonment, community service or detention. The table below indicates how this operates:

Sentence length	Type	Time
Life or maximum sentence was life	Imprisonment	At any time between the ages of 18 and 75
Exceeding two years	Imprisonment	At any time between the ages of 18 and 75
A term	-          Detention in institution for young offenders -          Probation -          Parole	Within ten years immediately preceding the selection
A conviction of an offence punishable by imprisonment	Imprisonment	Within five years immediately proceeding the selection
Licence disqualified for period exceeding two months	N/A	Within five years immediately proceeding the selection
Been bound by a good behaviour bond	N/A	Within five years immediately preceding the selection
Been charged with an offence punishable by imprisonment but charge is not yet determined	N/A	Within five years immediately proceeding the selection

While this measure may appear discriminative, the actual intention is to minimise any unfair biases that may have been built while the individual is in prison or form of detention.

Arguably while these members of society are biassed they remain to be valuable parts of our society as a whole. Therefore the question remains, do we have the right to reject their participation in society?

5.       Members of the armed forces will then be exempted under the Jury Exemption Act 1965 (Cth)

6.       Individuals who have membership as either a conscientious objector or member of a religious order will then be excused.

7.       Individuals who are not ineligible, disqualified or excused may write to apply for written excuse or delay for their service. They must write to the sheriff’s office who primarily controls this area. Some valid reasons for deferral include:

Ø  Pregnancy

Ø  Illness

Ø  Death of a loved one

Ø  Being self-employed

8.       Juries are then sent to the courts and are allotted in 25 member groups to different trials

9.       From there a process called empanelment begins in which names of potential jurors are pulled from a ballot box.

They can be rejected in one of two ways                 

a)      Pre-emptive challenge

A preemptory challenge is where the prosecution or defence can dispute the selection of a potential juror by calling ‘challenge.’ At this point, the individual must return to their seat quietly and cannot contest the decision.

However, these are limited to three challenges per side.

b)      Challenge for cause

These challenges are unlimited for both sides, but their effect is up to the discretion of the judge. For example, the prosecution may object to a juror because they attended the same school as the accused and would, therefore, be unfairly biassed.

The judge may choose to accept or reject this reasoning. As a general rule, challenges for cause are seldom successful.

Once the jury has been empanelled the trial can begin.

2.       The inquisitorial v adversary processes

The adversary system is greatly advantageous to the rich and taxing upon governments. Those who can afford a higher quality level of representation often fair better than they would under the inquisitorial system.

·         The inquisitorial system; defined

The inquisitorial system is used in countries that don’t rely on the common law. ­While elements of the common law system (precedents etc.) exist within the inquisitorial system, the primary difference is that legal representation is less important as the judge takes on a pivotal role in collecting evidence.

-          Pretrial

In the pre-trial stage of the adversary system, the police do the majority of the work. They investigate and arrest the suspect(s) and then collect evidence. Police must have a warrant to hold the accused for longer than four hours otherwise it infringes on civil liberties. This is taxing on the government as it primarily increases the hourly pay per policeperson due to additional responsibilities and the time pressure.

Deadlines are formed by the case management requirements and by the four-hour questioning rule. Without legal representation or knowledge, the accused may feel pressured into providing false information to satisfy police.

In the inquisitorial system, the investigation process is largely undertaken by prosecutors with the assistance of the police. There is the ability to adjust deadlines to remove time pressures, particularly when dealing with hostile persons. A judge will also oversee this investigation adding extra protection for the rights of the accused.

The judge will then review all evidence and interrogate witnesses. The input of an experienced judge in this phase means that there is the quick and efficient use of time as any doubtful evidence would quickly be found and rejected. This reduces the amount of time spent in court and clears the way for more trials.

The adversary system replaces this investigating judge with a preliminary hearing, but this is done in court and takes valuable time away from other trials. It is also not as effective as it places stress on the accused to find proper legal representation and face their accusers.

-          Trial stage

The main difference in the trial stage is that the trial in the inquisitorial system is far more focused. Witnesses are not compulsorily cross-examined in the inquisitorial system but either side will ask questions of the witness.

This is because the evidence has been made available in advance to both parties and they have disputed the evidence already; allowing the trial to be simply about an argument put forward by the trial judge.

In the adversary system, the primary intention of the trial is to dispute the evidence of both sides. Often inexperienced lawyers will lose because of their technical ability rather than the evidence itself. Witnesses are often put under pressure in the heat of the moment leaving some concerns about the veracity of proof.

Additionally, witnesses may be encouraged to reveal information that they had previously concealed because of the invasive nature of the cross examination.

Ø  Roles of the judge

In the adversary system, the judge is more like an overworked parent than an investigator. They watch the prosecution and defence to ensure their behaviour is reasonable and the evidence is admissible. Their part in the post-trial process is merely to direct the jury in how to evaluate the evidence presented and to determine an appropriate sentence through a sentencing hearing.

In the inquisitorial system the judge underpins the entire trial. For, they are the primary investigators and will interrogate witnesses during the trial. They are also required to come to a full and final conclusion at the end of the trial.

Ø  Roles of the jury

In the adversary system the costly process of forming a jury is used for every civil penalty provision and serious criminal offence trial. In Australia if the offence is a minor indictable offence or higher they have the right to trial by jury.

This process is also a poor mockery of active democracy as juries primarily consist of English speaking, middle class Australians. It is obvious in the process outlined above that the system is not supportive of language, culture or other special difference in the process. The disqualification process also rules out a portion of the community that would have the greatest insight into the motivations and reasons of accused.

The adversary jury system is far too restrictive to propose itself to be a fair cross section of the community.

In the inquisitorial system juries are saved for the most serious of cases and they work with the judge(s) to determine the decision. This advantages the trial because it prevents the jury from using inconclusive or unfair evidence to determine their decision. Judges can also be involved in the discussion to put forward their valuable experience and legal opinion.

Ø  Evidence

In the adversary system the rules of evidence are a focal point of the trial. Objections and over rulings are often characterised by American pop-culture as being a rambunctious exercise of the court room. The reality is often far blander. Yet, the evidence rules clearly protect the rights of the individual not to be unfairly discriminated against.

In this the inquisitorial system falls, there are no strict procedural rules of evidence and the trial judge –and lay judges if used – hear everything. This is greatly disadvantageous because hearsay evidence, which is infamous for inaccuracy can now be dragged through the court room too.

-          Conclusion

In reality, this article was biased – and I’m not ashamed to admit it. But it wasn’t a pointless exercise. A lot of countries that use the adversary system have a large unbalanced perspective towards the inquisitorial system.

While the adversary system has allowed common law countries to operate harmoniously for decades, it is not the only system for legal justice. The inquisitorial system is often dismissed, particularly by Australian articles and textbooks.

I’d recommend you all take on board that –while Australia may not need to overhaul the court system, the current adversary system is not perfect. It creates a sense of competition that can be disadvantageous towards the search for truth. The inquisitorial system has no such competitive mindset and in fact legal representation is far less important than in the adversary system.

The non-requirement for expensive representation equalises the dispute and puts justice before wealth, something that the adversary system often fails to do.

Given the stress on today’s courts and the often financially and emotionally fatal outcomes of the adversary system would Australia not be wise to consider becoming the first inquisitorial-adversary hybrid?

Our little country could certainly benefit from having the best of both systems.

The Underage Lawyer