Court attendance reflection

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Date added: 17-06-26


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Black cascading robes, white periwigs and the resounding thud of a court hammer are the images often associated with the administration of criminal justice. Over the course of my court attendance I quickly realized that this idealized perception fails to reflect the complexities of the criminal justice system. The first issue I will discuss is the value of legal representation and the how its absence can compromise an individual’s right to a fair trial. The next theme which struck me as significant was the distinction between the two levels of criminal justice. While they are governed by the same laws, it was evident that each level was characterized by distinct procedures. As a democratic society, the Rule of Law is the cornerstone of our legal system. One of the major facets of the Rule of Law is the notion of equality before the law.[1] My experiences within the precinct of Parramatta Local and District Court enabled me to grasp the importance of legal representation for attaining a just outcome. However, in Australia, there is no explicit statutory or constitutional right to legal representation.[2] Instead, this ‘principle’[3] is derived from the common law and international treaties which can be overturned due to Parliamentary Sovereignty. The International Covenant on Civil and Political Rights, which was ratified in Australia in 1980, is the primary international treaty regarding due process. Section 3(d) of the treaty states that an accused should ‘have legal assistance assigned to him, in any case where the interests of justice require so, and without payment by him in any such case if he does not have sufficient means to pay for it…’[4] Although the provisions of the ICCPR have been ratified by Australia, they have not been incorporated into domestic legislation. Consequently ‘while the International Committee’s view may be politically persuasive they will not, of themselves, carry the force of law’.[5] This means that even in the most serious indictable offences where the accused faces deprivation of freedom for a considerable period of time, there is no guaranteed right to legal representation.[6] The landmark case of Dietrich v The Queen[7] set the common law rule in relation to legal representation. This case reaffirmed that a criminal trial was most fairly and efficiently conducted when both sides have access to adequate legal representation. The majority ruled that individuals charged with indictable offences, regardless of their financial position, have a right to legal representation. In cases where this is cannot be provided, the judge has the discretion to adjourn the trial indefinitely.[8] During my experience in Parramatta Local Court I witnessed Magistrate Baptie exercise this discretion in the case of R v Debelli. Although the case I viewed lacked the complexity of Dietrich[9], the accused faced multiple charges of varying seriousness that could potentially result in imprisonment. Mr Debelli was left unrepresented at trial because his Legal Aid application was rejected. In NSW, the Legal Aid Commission is primarily funded by grants from the government. The National Legal Aid Advisory Commission stated that ‘levels of overall funding of national legal aid programs are demonstratably insufficient to meet the reasonable needs of the Australian community…’.[10] Due to insufficient funding, Legal Aid is unable to provide free or subsidised representation for all who require it. Consequently there are restrictions put in place like the merit and means test. In R v Debelli, the accused was rejected Legal Aid because he failed to satisfy the required criteria. The judge’s advice that he should ‘go to see legal aid today, and keep going back every day until they approve’, reflects the subjective nature of these tests. In R v Debelli, the accused was initially content to be self-represented and the magistrate gave him a brief explanation in relation to examination, cross examination and evidence. Shortly after he became visibly overwhelmed by the intricacy of the court process, and descended into a state of confusion and started providing incriminating information. In his dissenting judgment in McInnis[11], Murphy J was correct in saying that the accused is in a position of disadvantage not only because of their lack of legal knowledge and experience, but also due to their emotional attachment to the case. Mr Debelli finally realized his error and requested that the trial be adjourned until he could obtain legal assistance. The magistrate was clearly frustrated saying, ‘I asked you before, and now you’ve wasted all my time’. Despite this he begrudgingly agreed to adjourn the case of R v Debelli, explicitly stating it would proceed in three weeks ‘with or without’ representation. Even when Legal Aid is granted, the quality of legal representation provided can be highly varied.[12] This was more evident in the Local Court, than the district court. In some cases the defence was exceptional, while in others the solicitors were unprepared and unfamiliar with the cases before them. In R v Muhammed Ibrahim the integral role of legal representation was made blatantly apparent. During the case there was a distinct power imbalance between the defence and the prosecution. Through the persuasive presentation of his own case and skilful cross examination, the defence lawyer caused the witness to contradict herself on multiple occasions. This called her credibility into question, leading the magistrate to quash all charges and dismiss the case. Therefore the fundamental role of legal representation in obtaining a fair trial and upholding the tenet of the rule of law is undeniable. There are critical distinctions between the lower and higher courts in the New South Wales criminal justice system, essentially creating ‘two tiers of justice’.[13] The higher courts embellish the traditional images associated with the legal process. This portrayal of justice and legitimacy is visually displayed through the layout, customs and traditional court garments.[14] The black gowns with purple stripes and wigs worn by the judges exude a strong sense of authority and are in contrast with the simple gowns worn by the magistrates in the Local Court. These subtle disparities reflect the fundamental differences between the two tiers of justice. Where the district court felt formidable and intimidating, the local court was more relaxed and at times comedic.[15] The local courts process approximately 97.5% of criminal cases, while the higher courts only handle 2.5%.[16] Despite this stark difference, a disproportionate amount of time and emphasis is placed on higher court matters which are perceived as ‘declaratory of the law’.[17] In fact, the introduction of Criminal Procedure Amendment (Indictable Offences) Act 1995[18] and the Crime Legislation Further Amendment Act 2003,[19] have caused the role of Local Courts in criminal matters to drastically increase in recent years. The more cases I witnessed, the more apparent it became just how extensive the jurisdiction of the Local Court is, in dealing with indictable offences. In the Local Court the primary objective was time management and getting through the list for the day.[20] Rapid decision making in relation to complex areas of the law is often necessary to manage the large volume of cases for each day.[21] Magistrates are accurately referred to as the ‘under-valued work-horse of the court system’.[22] In the Local Court, most cases are scheduled to start at the same time. Due to time pressure and disorganization of court proceedings, ‘defendants told to arrive at court at 10am may wait … even three hours before hours before their cases are ‘called on’’.[23] I personally witnessed this sitting in the public gallery for hours among a mass of accused waiting for their case to be heard. This was in stark contrast with my experience of the district court, where each case is treated with consideration and legitimacy. Trials were allocated a specific time, courtroom and judge. This comparison is most clearly conveyed by comparing the thirty minute hearing of R v Chrissis, with R v Shane Barry Dennis where an entire day was assigned to gathering witness statements. Despite both being assault charges of similar gravity and complexity, it is evident that trial by indictment is a lot more time consuming than a summary trial. This is because it is not necessarily ‘the nature of crime but nature of procedure which complicates the law’.[24] Local courts do not always adhere to the due processes of law, primarily because they must get through a large magnitude of cases in a short period of time. This divergence from procedure is justified by some using what McBarnet refers to as ‘the ideology of triviality’.[25] This notion derives from the fact that the cases in the local court are treated summarily, hence a smaller penalty can be imposed and they ‘interfere less with ones liberty’.[26] Spending a substantial amount of time in the local court, I realized just how misconstrued this perception was. In the bail application of R v Mostafa Mariam, the accused is the father figure and provider for three young kids, his wedding was three weeks after the hearing and his fiance was due to give birth within a week of the hearing. Therefore it is evident that the magistrate’s decision to reject his application for bail had a drastic impact not only the life of the accused, but that of his family and friends. I departed through the revolving doors of Parramatta District Court with a new perspective on the inner workings of the criminal justice system. After witnessing the potential adverse effects of self-representation, I realized the value of legal representation as part of a fair trial. I gained awareness of the distinctions between the lower and higher tiers of criminal justice. 1 | Page
[1] The Law Research Centre, Submission to the Senate and Constitutional Affairs Committee: The Right to a Fair Hearing and Access to Justice: Australia’s Obligations (6 March 2009) <> 10. [2] Paul Ames Fairall, ‘Trial Without Consel: Dietrich v The Queen’ (1992) 4(2) Bond Law Review, 239. [3] James Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) Australian Law Journal, 25. [4] Karen Fletcher, ‘Legal Aid: Right or Privilege?’ (1993) 18(1) Alternative Law Journal, 21-33. [5] Olaf Dietrich v The Queen, (1992) 177 CLR 292, at 31. [6] Gideon Boas, ‘Dietrich, the High Court and Unfair Trials Legislation: A constitutional Guarantee?’ (1993) 19(2) Monash University Law Review, 261. [7] Olaf Dietrich v The Queen, (1992) 177 CLR 292. [8] Karen Fletcher, ‘Legal Aid: Right or Privilege?’ (1993) 18(1) Alternative Law Journal, 21. [9] Olaf Dietrich v The Queen, (1992) 177 CLR 292. [10] Karen Fletcher, ‘Legal Aid: Right or Privilege?’ (1993) 18(1) Alternative Law Journal, 24. [11] McInnis v The Queen (1979) 143 CLR 575. [12] Janet Hope, ‘A constitutional right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System’ (1996) 24 Federal Law Review, 192. [13] Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (Palgrave McMillan Limited, 1981) 182. [14] Crofts et al, ‘Design and Children’s Courts’ (2008) 33(4) Alternative Law Journal 229. [15] Harold Garfinkel, ‘Conditions of Successful Degradation Ceremonics’ (1956) 61(5) American Journal of Sociology 421. [16] David Brown et al., Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (The Gederation Press, 2011) 143. [17] Ibid. [18] Criminal Procedure Amendment (Indictable Offences) Act 1995 (NSW) s2.11 [19] Crime Legislation Further Amendment Act 2003 (NSW) s3 [20] Kathy Mack and Sharon Roach Anleu, ‘Getting through the List: Judgecraft and Legitimacy in the Lower Courts’ (2007) 16(3) Social and Legal Studies, 341. [21] Michael Kirby, ‘The Ongoing Ascent of the Australia Magistracy’ (2009) 9(2) The Judicial Review, 149. [22] John Willis, ‘The Magistracy: The Undervalued Work-Horse of the Court System’ (2001) 18(1) Law in Context, 129. [23] Pat Carlen, ‘The Staging of Magistrates Justice’ (1976) 16(1) British Journal of Criminology, 29. [24] Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (Palgrave McMillan Limited, 1981) 182. [25] Ibid. [26] Ibid.
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