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Discretion in the Australian criminal justice

Discuss about the Discretion In Australian Criminal Justice System. 

Discretion is the power to use one’s own judgments in acting as per the circumstances. Discretion is widely used throughout the criminal justice systems. In broad, discretion is said to start with the offender deciding whether to engage or avoid a crime. After committing the crime, the investigation officers may then use their discretion to decide whether to arrest or to leave the offender. The same process may continue up to the point of the judgment where the judge may choose to convict or set the offender free.  The aim of this paper is to discuss the roles played by discretion in various stages of Australian criminal justice system.

Discretion is central to all the criminal processes of a case and it is widely employed during the arrest, prosecution and trials, adjudication and decision making, sentence and sanctions, corrections and appeals. In (Carty v Croydon London Borough Council, 2005), Lord Dyson LJ stated that discretion connotes exercising own’s judgment in choosing the next action. The High Court of Australia also stated in (R v. Swaffield, 1998) that Judges have the discretion of admitting or excluding evidence. The work of (Palmiotto and Unnithan, 2010, p. 132) also states that the power of the police officers to use discretion implies that they must consider all factors before engaging any legal action. 


The criminal processing starts with a victim reporting the claim to the police. After the report, the police must make decisions whether they should or should not consider the incident as a crime. The situation would be unsupported or dropped if the police decide that the situation is not a crime. The police discretionary powers in reaching their decision whether to drop or start investigations forms the key stage in the crime justice process. While arresting the suspects, the police officers use their discretions in finding reasonable causes to believe that the suspect should be arrested. The police officers exercise a wide range of discretions in responding to suspects who have violated the laws. For instance, they may decide to do nothing, issue a warning, or conduct further investigations by questioning, searching, or frisking.  

Even though police have discretionally powers, they also have a duty to exercise it within the law. The concept of exercising discretionally powers is largely explained in administrative law.  For instance, according to (Groves and Lee, 2007, p. 213), the work states that even though the parliament has given discretion powers, such should be exercised reasonably and they should not be used arbitrarily or capriciously. The same views were also stated by the judge in (JC Williamson Ltd v. Lukey and Mulholland, 1931).

Police Discretion

In Australia, the prosecutorial duties were traditionally executed by the Attorney-General, but those duties were later transferred to the office of the Directors of Public Prosecutions of the States and the Commonwealth (Yang, 2013). After receiving a case file, prosecutors retain their discretionary powers in deciding whether or not, what and how they would proceed. At this point, they read the facts before them and decide how best they should use their office resources for the best interests of public justice. They also assess their degree of leverage in contemplation of their negotiation with the defense side and choose whether to pursue the offense (s) or not, and whether to enter the plea-negotiations or not. The decisions to be taken are governed by the prosecution’s discretionary judgments by looking at the sufficiency of the evidence brought before them (Stenning, 2010). In addition, the work of (Cowdery, 2013) states that the discretionary powers of the prosecutor are influenced by the applicable law, available policies, the tabled evidence and facts,  and the general public interests. 


The plea bargaining or negotiation is also a stage that relies on the prosecutor’s discretion (Brook et al., 2015). Most criminal cases across many jurisdictions are frequently finalized through plea negotiation where the defendant pleads guilty. However, the pleas come after negotiations between the defense side and the prosecutor on the terms of the agreement of pleading guilty (Flynn and Freiberg, 2018). The agreements may the prosecutor’s acceptance to alter the charges reduce the seriousness of their outcome, complete withdrawing of the charges or alteration of facts in an exchange with the defendant’s guilty plea.  At other times, the negotiation may focus towards the prosecutor requesting the defendant to become a witness against another suspect in an exchange of wavering the charges. In Australia, plea negotiations are not provided by the legislation. Instead, they are the prosecutor’s discretion guided by the internally enacted prosecution guidelines and policies which operate outside the court’s and public scrutiny.  

In pretrial, the burden of proof is usually upon the prosecution to table sufficient evidence for the continuation of the case. The judges use independent judgment to decide whether the government has presented “probable cause” that can be used to charge the accused. Along with the judge, the grand jury evaluates the evidence available and the likelihood that the accused committed the crime. Again, if the judges and the grand would disagree with the prosecution, they are likely going to dismiss the indictment.

Prosecutorial Discretion

Again, the fate of the prosecutor and defense lawyer’s arguments relies on the judge’s considerations. The decision to deny or issue a bail is upon the judge to decide. However, in this discretion, at para 147 in (DPP v Serratore, 1995), it was stated that the powers to deny bail should not be used as a punishment to the suspect   The magistrate also has discretionally power in issuing warrants as provided in division 3 (Magistrates’ Court Act, 1989). In terms of evidence and proof, sections 135 provides for discretionary rejection of evidence in criminal cases if the admissibility of that evidence will result to unfair prejudice on the accused (Evidence Act, 1995). Even though there are no general guidelines for discretion, section 135(b) allows provides that despite there are no guidelines for discretion, misleading evidence should still be excluded. Therefore, it is upon the judge or the magistrate to include or exclude evidence for the better interest of the justice.  

The determination of culpability is upon the discretion of the judge and jury. Both sides present their arguments and facts that support their claim. The judge or jury (depending on the trial) ensures that each party follows the right procedure. The judge or jury’s discretionary powers are also used particularly when the judge or jury disallows the cross-examination on the suspect if it leads to character evidence as found in (Phillips v The Queen, 1985). In the recent decision of  (Police v Dunstall, 2015), the High Court decided on the exclusion of evidence. The issue in this case was whether the evidence was unfairly obtained or not, and whether there was an error in its exclusion. 


According to (Dobinson, 2005), judicial discretion is fundamental during sentencing as it ensures that the sentence provided is individualized and proportionate. This concept was further explained by (Krasnostein and Freiberg, 2013), sentencing is grounded on the perennial conflict, individualized justice and consistency. The concept explains that courts must consider all circumstances before issuing a sentence.  Consistency requires that similar situations from different offenders receive similar sentences. Therefore, as the sentencers exercise their discretionary powers, they should be guided by these main principles. Even though legislation provide for mandatory sentencing as a way of limiting discretionary powers to attain consistency, the same has been difficult due to the uniqueness of the cases leaving judges to exercise their moral judgment in individualizing justice (Debelle, 2008). Therefore, conviction or acquittal relies on the judge decision after analyzing the facts in each case differently.   

Plea Bargaining or Negotiations


Another approach in sentencing is the “intuitive synthesis." This doctrine removes the limits of judicial discretion to allow the sentencers to rule cases through an objective justice and consider each case different from the other (Krasnostein and Freiberg, 2013). The approach provides a broad scope of balancing the innumerable aspects that are contained in each case and then come up with a decision that is holistic and appropriate for all circumstances of the matter. In addition, the prosecutor and the defense may offer their recommendations to the judge on the sanction but it is upon the judge to consider the recommendations or not. During the correction and release, the correction system handles the responsibility of managing the sentence awarded by the judge. It is the responsibility of the correctional staffs in handling the convicted person’s placements, treatment, management, and the release.  Since the sentencing judge holds no authority regarding the procedure of the sentence, the correction system is left to decide how it will carry out the sentence. There has been substantial discretion from the correction staffs in determining the duration the prisoners would have to serve in the system. However, recent programs have provided guidelines to shape the prison services due to constant violation of prisoner’s rights (Victorian Ombudsman, 2014). Discretion in appeals remains within the power of the court to consider whether the lower court was reasonable in exercising its discretion (Edmonds, 2017). It would require the party applying for the appeal to convince the court that the lower court used a wrong law of wrong facts.

Conclusion

The aim of this paper was to provide a discussion of the role of discretion in the stages of the Australian criminal justice system. The paper went through how discretionally powers are used by justice administration official during the investigations, trials, sentencing and punishments. In discussing the application, the paper looked at plea-negotiations, bail provisions, issues of mandatory sentence among others. 

References

Brook, C. A. et al. (2015) ‘A comparative look at plea bargaining in Australia, Canada, England, New Zealand, and the United States’, Wm. & Mary L. Rev., 57, p. 1147.

Carty v Croydon London Borough Council (2005) EWCA Civ 19.

Cowdery, NC 2013, ‘Challenges to prosecutorial discretion’, Commonwealth Law Bulletin, vol. 39, no. 1, pp. 17–20. Available from: https://doi.org/10.1080/03050718.2012.751193. [31 May 2018].

Debelle, J. B. (2008) ‘Sentencing: Legislation or Judicial Discretion?’, in. Sentencing Conference (February 2008), National Judicial College of Australia/ANU College of Law.

Dobinson, J. (2005) ‘Structuring judicial discretion in Australia’, Reform, (86), p. 49.

DPP v Serratore (1995) 38 NSWLR 137.

Edmonds, C 2017, ‘APPEALS FROM DISCRETIONS, SATISFACTIONS AND VALUE JUDGMENTS: REVIEWING THE HOUSE RULES’. Available from: https://law.unimelb.edu.au/__data/assets/pdf_file/0008/2501189/Edmonds-412-Advance.pdf.

Evidence Act (1995).

Flynn, A. and Freiberg, A. (2018) Plea negotiations: An empirical analysis, Trends & issues in crime and criminal justice.

Groves, M. and Lee, H. P. (2007) Australian Administrative Law: Fundamentals, Principles and Doctrines. Cambridge University Press.

JC Williamson Ltd v. Lukey and Mulholland (1931) CLR.

Krasnostein, S. and Freiberg, A. (2013) ‘Pursuing consistency in an individualistic sentencing framework: If you know where you’re going, how do you know when you’ve got there’, Law & Contemp. Probs., 76, p. 265.

Magistrates’ Court Act (1989).

Palmiotto, M. J. and Unnithan, N. P. (2010) Policing and Society: A Global Approach. Cengage Learning.

Phillips v The Queen (1985) HCA 79.

Police v Dunstall (2015) HCA 26.

R v. Swaffield (1998) CLR.

Stenning, P. C. (2010) ‘Prosecutions, Politics and the Public Interest: Some Recent Developments in the United Kingdom, Canada and Elsewhere”(2010)’, CLQ, 55, p. 449.

Victorian Ombudsman (2014) ‘Investigation into the rehabilitation and reintegration of prisoners in Victoria–Discussion Paper’, Melbourne: The Victorian Ombudsman.

Yang, K. (2013) ‘Public accountability of public prosecutions’, Murdoch UL Rev., 20, p. 28.

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