LAWS1021: Court research report
The basic division in the structure of criminal courts is between the lower criminal courts – the local courts, Children’s court and Coroner’s court – and the higher criminal courts – the District Court and the Supreme Court. In observing proceedings at the Local, District and Supreme Courts over a period of three days a number of aspects of the criminal justice system were made apparent. The administration, processes and practices of the criminal trial are extremely varied dependent upon the level of criminal court being observed. The distinctions between the workings of the two courts revealed a number of the differences between summary proceedings and trial upon indictment. The cases observed served to provide evidence for the “two tiers of justice” argument. Also the role of the judiciary was perceived as being particularly interesting especially the high level of discretion that they held in the Local Courts and even to an extent in the District Court primarily when there was no jury present. McBarnet’s discussion of the criminal court system focuses around the idea that the higher courts such as the District and the Supreme courts are for public consumption in which the ideology of justice is played up by the more elaborate court rooms, dress, and rigid rules of ceremony. On the other hand the lower courts focus on control. The local courts handle the vast bulk of cases with only a small proportion of criminal cases coming before the higher courts. For example the National division of cases between the lower and higher courts in 2003-2004 were 97% finalised in the lower courts while only 3% were heard in higher courts.
Lower criminal courts – Absence of legality
In arriving at the local courts, the waiting room was full of people who had been summoned to appear for their hearing. It was noisy and extremely busy. In observing the waiting room it was obvious that people were restless and were anxious to have their case heard. The majority of cases were listed to start by 10am and thus depending on the speed of the trial process many people may have had to wait hours before their case could begin. There are no estimates of how long each matter will take and not even an attempt to make a general time allocation. Mack and Anleu also further illustrate this concept. They said that primary objective is time management and 'getting through the list' for that day. In general, the whole process in the local courts was a lot less formal than was expected with several of the magistrates even stopping proceedings to explain the facts of the case to the law students. Although Pat Carlen in her study of Magistrates Courts in England and Scotland described the court as a very formal and ritualistic social setting this is somewhat surprisingly not what was observed during Local Court visits. The court observations were more in line with those of McBarnet in that the lower courts did not uphold the strictures of “due process” and the ideology of justice. In one particular committal hearing that was observed in the Local Court, R v Sean Robert Kerr, the atmosphere was relaxed and the magistrate and the prosecutor were in constant discussion about the facts of the case and the admissibility of evidence. The accused was alleged to have carrying knife in public place. This downplaying of the crimes to less serious charges supports the emphasis on efficiency that underlines McBarnet’s analysis. Each time the prosecutor made a claim the magistrate would ask where the evidence came from. The magistrate was concerned with the nature of the evidence as they are required to determine whether there is enough evidence to commit the accused for trial as outlined under s 62 of the Criminal Procedure Act 1986. It became obvious that they were short staffed and without a court clerk when the magistrate held no objection to the prosecutor approaching the bench to submit evidence. This case provides evidence for...
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