Discretion is judgment. Judgment is exercised by applying principles and values
and facts. It is by trying to put together a judgment and weighing the competing
versions and choosing between them or predicting how an ultimate fact finder
might resolve the decision. The role of discretion within the criminal justice
system has many advantages and disadvantages in the way it deals with
achieving justice for individuals. Discretion can be explored through
cotemporary examples within the criminal investigation process, criminal trial
process, sentencing and punishment.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are
the powers that police have been given in order to carry out their discretionary
roles. It is police powers that allows the use of discretion with tasers, in defence
to a threat. ABC Report “NSW police probe 'unnecessary' Tasering” questions the
use of tasers, after there was a misuse of discretion by police to a 38yr old man.
Within the criminal investigation process, discretion is relevant through the
toughened bail laws, which are represented in the Bail Act Amendment in 2007.
It was “The Case of Andrea Patrick 1993”, being amended, that removed the
presumption in favour of bail. The government that has used their discretion in
this case to reform the law, by aiming to protect the victims and society. Sydney
Morning Herald article “Disappearing right of bail” in 2010, outlines that the
increasing number of prisoners is leading to shortage in cells and also higher
cost for the taxpayers. It also questions the affect on those who are put on
remand, who may be innocent. Though these tough laws have been created by
the discretion of the government, it is the discretion of the courts to apply these
laws appropriately.
The burden and standard of proof is essential to the criminal trial process. The
collection of evidence is the discretion for detectives and is a crucial aspect of the
criminal trial process. Technological advancements of DNA has lead to many
arguments, SMH article in 2009 “Criminal DNA tests being checked in NSW”,
revealed a wrongful conviction because of handling error. This article, suggest
arguments that police cannot rely of the discretion of this DNA evidence. Also
within the criminal trial process, are the defences to criminal charges. It is the
discretion of the individual, which is represent in the case of “R vs Porter 1936”,
where Porter used the defence of insanity for the murder he committed. This
type of individual discretion allows the chance for the individual to be actively
involved within the trial process.
Sentencing and punishment, has actively involved the discretion of judges and
magistrates through the factors affecting a sentencing decision. The judiciary
punish offenders within the guidelines set by the Crimes (Sentencing Procedure)
Act 1999 (NSW). The Article “Die in Jail: Carr’s new sentences” outlines how new
laws will now retain judges discretion to impose a penalty below the minimum
standard, but Judges must give explanation for their decision. Under this law
Judges must give the minimum prison sentence, unless there are mitigating
factors. The objectives of sentencing and punishment aim for protection,
rehabilitation and deterrence. It is when considering post-sentencing
considerations that again judicial discretion is involved. Commonly the system
fails to look at the considerations of the victims, the 2010 article “Victims must
be heard in sentencing” by the Attorney General, John Hatzistergos explains the
importance of hearing the victims review of the effectiveness of sentencing and
punishment. It emphasises that in order for judiciary to use their discretion to
bring justice, they must implement appropriate procedures into post-sentencing
considerations.