To what extent does the criminal justice system reflect moral and ethical standards
OR
Evaluate the role of discretion in the criminal justice system
The Bail Act (2013) (NSW) was introduced to shift the focus from a ‘presumption against bail’ to considering
‘unacceptable risk’, which was effective in reflecting the moral and ethical standards of society. The Act replaced a
complex set of presumptions with a single “unacceptable risk” test. This is evident in the controversial R v Hawi
case. Hawi was granted bail under the NSW Bail Act 2013 by Justice Harrison who made specific reference to the
amended law of whether the accused posed an “unacceptable risk”, thus protecting the rights of the accused to
liberty. Justice Harrison stated there were some unacceptable risks to the community however that they could be
“adequately mitigated by the imposition of appropriate conditions". Justice Harrison also emphasised that society
continuously “turned its face against the making of unproven assumptions about guilt or innocence” which
deprives people of their liberty, thus supporting his discretionary power to release Hawi on bail. Through these
bail conditions, it meets the rights and freedom of the accused, in ensuring the presumption of innocence is
maintained, upholding the rule of law and therefore reflecting the moral and ethical standards of the community.
However, in society’s perspective, the release of Mr Hawi would hinder the safety of the community as there is no
greater protection, highlighting the ineffectiveness of the Bail Act 2013. The release of Mr Hawi was highly
controversial, drawing criticism from the media and general public as being “soft on crime”. Ms Bromwich, part of
ABC Radio, stated that the amendments were skewed in favour of the accused, "He [Mr Hawi] is still a complete
member of the bikie gang – how is [releasing him] the right thing to do?",claiming that the right to safety for the
community was neglected. NSW Attorney-General Brad Hazzard, further reinforces, “There is no greater concern
for the community than alleged offenders on serious offences still walking free around the community”. This
prompted the Bail Act 2014, in response to public backlash, revealing the highly ineffective nature of the Bail Act
(2013) in reflecting community values.
The Bail Act 2014, was introduced in response to the highly publicised Hawi case, which is effective in reflecting
the ethical and moral values of the community. It introduced the “Show Cause” test whereby the accused must
show satisfactory grounds as to why they should be exempt from being held in “remand”. This is effective in
maintaining safety in society as “the aim here is to get it right for the community first and foremost” (NSW
Attorney General Brad Hazzard), therefore reflecting the community’s values.
However the amended Act has raised significant tension between the safety of the community and the rights of
the accused, displaying the ineffectiveness in reflecting community values. This is highlighted when the Act places
the onus on the accused, departing from the normal criminal law where the prosecution carries the burden of
proof. This change has been criticised by former NSW DPP Nicholas Cowdery, “the onus must be on the
prosecution”, emphasising how defendants deserve a presumption of innocence where issues of unfairness arise.
Mr Cowdery also highlights the removal of judicial discretion, which limits the judges power to consider the
offender’s different circumstances, stating “It's a matter of the court making”, and their discretionary powers to
make “an appropriate balance between the freedom of the individual." and “the protection of the community”.
This raises discussions about the balance struck between the presumption of innocence and the safety of the
community, failing to reflect the moral and ethical standards of offenders as their right to liberty is violated.
MINIMUM MANDATORY SENTENCING → the role of discretion in the criminal justice
system
Minimum Mandatory Sentencing reflects the moral and ethical standards of society however at the expense of
the rights of offenders and the independence of the judicial system. The manifestly inadequate sentence of 4
years imprisonment handed down in the highly publicised R V Loveridge case, highlighted a media-driven
backlash, “how many of our children have to die before these laws change?”(ABC News 2013). Hence, revealing
the paramount ineffectiveness of the judicial system in adequately accommodating the ethical standards of the
community. Consequently, the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014
(NSW) was introduced, which was a ten-year mandatory sentence on any offender convicted of killing anyone as
an indirect of a king hit. This amendment, effectively highlighted a new found moral and ethical value in alcohol
fuelled violence as Former NSW Premier Barry O’Farrell affirms that “those who engage in drug or alcohol-fuelled
assaults in public will face the full force of the law.” As a result, Loveridge received a sentence doubled upon
appeal to 13 years and 8 months incarceration, revealing the highly effective nature of mandatory sentencing in
reflecting the moral and ethical standards of society.
However, the amendment has been ineffective in recognising the moral and ethical standards of all aspects of
society. The introduction of the amendment has been extensively criticised by the media and legal professionals,
“Ineffective one-punch mandatory sentences should be scrapped (SMH 2016)” which insinuates the MMS was “a
knee jerk response” that undermines the independence of the judiciary through the removal of judicial
discretion. This is further emphasised by the President of the NSW Bar Association Phillip Boulton, stating
mandatory sentencing is a “one-size-fits-all form of justice” which “removes discretion from judges”, failing to take
into consideration the offender's circumstances, resulting “in penalties that are often disproportionately harsh”.
Hence the law is ineffective in upholding the rights of the offender as DPP Nicholas Cowdery affirms that this is a
“recipe for injustice” as it violates “the right to a fair trial and impartial trial” Article 14 of the ICCPR. This is
evident in the R v Lyttle case, which demonstrated unjust outcomes of mandatory sentencing. Stuart Clark, the
Council’s president stated if the offender had been “a little more intoxicated and if his brother had died” then
“how would such an outcome have served the community?”, implying how intoxicated offenders are the least
likely to consider the possible consequences if they go ahead and offend. Thus, this demonstrates the highly
ineffective nature of the amendment in reflecting the moral and ethical standards of all members of society.
SEARCH AND SEIZE → the role of discretion in the criminal justice system
The police have the power to search and seize under the Law Enforcement (Powers and Responsibilities) Act
2002 (NSW) is effective in reflecting the moral and ethical values of the community. The power to search and
seize is deemed as a special power as dictated by Part 4 of ‘LEPRA’ because they are granted the broad power to
stop and search individuals provided they “believe on reasonable grounds”, hence through the police’s discretion
they are obligated to uphold safety within the community and the offender. The Act entitles police discretion to
instigate procedures such as pat downs or searches which serves to increase greater protection within public
locations as seen in a BOCARS report that they “have been proven to significantly drive down crime". Thus this
reflects the moral and ethical standards of society in the greater protection of the community. However, the Act is
without its limitations, entitling police discretion, which can be abused, which is a prevalent hindrance of
individual privacy in Article 17 “No one shall be subjected to arbitrary or unlawful interference with his privacy”
in the ICCPR and the presumption of innocence in Article 14 of “the right to a fair trial and impartial trial” in the
ICCPR, thus not recognising the rights of the accused and the community. The law has been extensively criticised
by the legal community such as the Redfern Legal Centre, Lawyer Sam Lee stating that these police powers are
“quite vague and legalistic” emphasising that the laws are too broad and it “leaves it up to the minds of the
officers to make the decision” which can be abused, reinforcing the ineffectiveness of such powers as it hinders
the protection of the accused and disregards the presumption of innocence. The media has also been critical as
illustrated through the “NSW Police Strip Searches up nearly 50% in four years” (The Guardian), demonstrating
the dramatic increase of strip searches, prompting the community to call for an overhaul of the state’s “vague”
search powers. Hence the law is ineffective in upholding the rights of the offender as stated by former DPP
Nicholas Cowdery search and seizure is a “great potential for abuse of power” as it infringes a person’s right to
privacy and does not uphold the rule of law.