Justice in the Criminal Justice System

Access to the legal system The purpose of law is to achieve justice. The common elements of justice are: Fairness Equality Access to the legal system

Fairness Criminal processes and procedures reflect our basic values. These include the principle that we are entitled to a fair treatment in a criminal matter. These values are reflected in: the right to be considered innocent until proven guilty: the burden of proof is on the accuser to prove the guilty of the accused ‘beyond reasonable doubt’ the right to silence: there are many reasons for reticence – fear of the police, lack of understanding of the legal system, of what is being asked, lack of confidence in expressing oneself. Guilt cannot be assumed if a person chooses not to speak in court. the right to trial by jury: a cross-section of the community means a range of values, making sure the law remains relevant and meaningful.

Equality The criminal justice system strives to achieve non-discriminatory outcomes and to protect all who come before it. Everyone should be treated the same, enjoying equal rights and opportunities throughout the legal system. The aim is that no person is disadvantaged. the use of interpreters for people with language difficulties specialist courts, such as the Koori Court, that recognise cultural differences and their importance evidence being given orally in court so that it can be tested through cross-examination.

Access to legal resources A criminal justice system must be accessible to all members of society for it to be considered fair and just. Everyone has the right to defend themselves and receive justice, whether they are the accused or the victim.

Cultural Diversity and Justice Cultural differences that have caused injustices in the legal system include: the way direct questioning is done with Indigenous witnesses or accused persons the fact that it is seen as disrespectful to have or maintain direct eye contact with a ‘respected’ Indigenous person the fact that it is not acceptable in Indigenous cultures to disagree with a ‘respected’ Indigenous person the fact that it is not acceptable for a woman to discuss matters of a sexual nature, particularly with a man (many police and legal personnel are men).

Immigrants and refugees One in four Australians were born overseas. There are 300 languages spoken in Australia, including Indigenous languages, and there are 120 religions. Some of the more specific problems that are experienced include: discrimination and prejudice social isolation and disenfranchisement difficulties assimilating with the broader Australian culture and/or maintaining a sense of their own identity with their original culture. Some of the key issues with the criminal justice system are: difficulties with police, including perceptions of racism, bias and over-policing racially motivated attacks – or ‘hate’ crimes – predominantly by strangers a disproportionately high fear of crime a lack of awareness of the law and of how the criminal justice system operates under-reporting crime as victims: this may be due to a lack of understanding of, or confidence in, the criminal justice system and a fear of police concern about the stigma and shame associated with contacting the criminal justice system: this can also be a barrier to the use of both formal and informal support services difficulties accessing culturally appropriate programs such as legal assistance.

Time delays It is important that criminal procedures are conducted in a timely manner. The accused, victims and witnesses can experience significant stress waiting for a case to be finalised. For a person who has been denied bail, the consequence of delay is that they are denied their liberty. This can affect their employment, personal wellbeing and relationships.

Ways to improve accessibility and reduce delays Studies have identified seven areas that contributed to trial efficiency: having legal representation available after arrest and before the defendant is charged providing improved incentives for defendants to plead guilty early verifying that prosecutors are involved at or before the charging process, so that they can provide advice about the most appropriate charges so that charges are not withdrawn prior to the trial ensuring that charges are examined by experienced lawyers, preferably those who will be involved in the case guaranteeing that lawyers start plea negotiations before any court hearing ensuring that lawyers concentrate only on the issues in dispute: in other words, find as much common ground as possible ensuring that communication between the parties’ lawyers involves sufficient expertise and authority to make decisions.

Access to justice and cultural differences The law does not recognise any difference between a recent migrant or refugee and a native-born Australian. However, differences do exist. These may result from: differences in cultural background language skills and expectations of the criminal justice system. These factors may limit the capacity of the criminal justice system to provide for fair and equal treatment.