Legal Studies - Evaluate effectiveness of Criminal Trial Process (Crime)!

[ToChristinaLin]

“Evaluate the effectiveness of the criminal trial process in achieving justice.”

It is to a limited extent that the Australian criminal trial process achieves justice, based on the integration of many key court features that upholds the adversarial nature of the court trial. The role of juries, the legal defence and court delays due to case accumulation has both impeded and attempted to strike a balance in achieving justice for the victim and society. But even as these factors have undergone several amendments to better administer justice with legal flexibility, the effectiveness of the CTP is quite limited.


In achieving the difficult and broad concept of “justice”, the use of juries is most pertinent in addressing fairness, due to judicial powers being scrutinised by the public eye. They are integral in a country’s most serious indictable offence, as well as allowing the legal system to be transparent and credible. But this does not exclude the possibility of a failed jury, or “hung juries”, resulting in unproductivity of state resource and deprivation of the rights of the litigants.

In Australia, all jury guidelines and laws are stipulated in the Jury Act 1977 (NSW), where prior to 2006, only a unanimous verdict of whether the accused was to be deemed guilty or not guilty was required for punishment or acquittal to be passed. However, the difficulty of such a high standard of guilt proved itself to be an underlying cause for undermining justice in the legal system because of the increasing numbers of hung juries. Where there were hung juries, not only is there a waste on the state’s time, effort and personnel resource, but the fundamental role of achieving justice by not denying any parties liberation is undercut. One of the key elements to justice is keeping the arms of powers in check and by the empanelment of juries, there is a reflection of direct social involvement in court procedures.

In responding to these problems, the NSW government passed the Jury Amendment (Verdicts) ACT 2006 (NSW) so that in addition to a unanimous verdict ruling, there was ALSO what is called a “majority ruling” (where a ratio of either 11-1 or 10-1 is also accepted). Yet even with more legal flexibility being accounted for, the effectiveness of the CTP is made limiting because of some barriers that come attached with participating social members.
In Professor John Gibbon’s article on We need better jury directions to ensure justice is done, the complexity of presenting court cases to juries is discussed, where while “the main purpose of jury directions is to communicate with the jury”, judges also have a “second hidden audience - [the] appeal court judges”, and ultimately a second motive - “to avoid retrials on the grounds that the directions were not given correctly.” In the criminal court, judges too play a fundamental role in faithfully guiding jury decisions in the most neutral way possible. However given the inevitable use of legal jargon and the legalistic processes of the trail system, there is too often a poor, and misconstructed understanding of court information and instructions on the juror’s part.

The lack of maturity sometimes demonstrated by jury members as society members stem from the conflicting use of non-legal workers. Ultimately, this poses the difficult striking of a balance between society’s need and right to participate in court procedures, as well as delivering a fair and just verdict.

As a further exacerbating factor, in a SMH article published in 2008, regarding the case R v. Lonsdale R v. Holland, the limited attention span and distraction is highlighted. This was during an NSW drug trial, where one of the accused, Lonsdale noticed the jury foreperson playing what he thought was Sudoku. It was later revealed that not only one but four or five other jurors had copies of the game. In seeing this misconduct and negligence of public duty on the jury’s part, the administration of an unreliable and unsound verdict then conflicts with the original purpose of having a jury. As well, unlike a “trial by judge order”, juries do not need to give a reasoning for their verdict, which further puts the effectiveness of the CTP at risk. Hence the effectiveness of the CTP is seen to be only limitedly effective.

Furthermore, the several retrials of the Lin family murders (2009) demonstrate the unproductivity of a jury panel. The case involved “Robert” Xie, who was accused of mass killing five family members in their North Epping home. The case exemplifies the significant delays which arose as a result of hung juries, having been the longest-running criminal case in NSW that involved a single man accused, and at least $1 million spent on it alone. In considering cases where the accused is found to be innocent, there is currently no form of retribution or compensation even to them, which further limits the effectiveness of integrating the jurors. This significantly deters the CTP ‘s purpose in delivering a just outcome, as the idea of “justice delayed is justice denied” can be seen.

By introducing society members into the direct administration of justice, it significantly reduces the onus of a single judge or justice who overlooks the case. With more people involved in the decision-making process, the evidence would be further scrutinised and considered, at the cost of time and effort.

Following this argument, the actual portion of society to which the jury represents is also controversial. With certain parties formally exempt from the electoral roll for jury service, in January 2010, under the reform of the Attorney General John Hatzistergos, the Jury Act 1977 (NSW) announced for an increase in the pool of people available to serve jury, reform payments to jurors, and the strengthening of workplace protections for employees who serve as jurors. In the new changes that followed, Mr Hatzistergos also said that they would “make it easier for employed jurors to serve on longer trials and will also strengthen protections for employees.”

These changes reflect the increasing need for both the protection and the encouragement of people chosen for a jury to serve their duty. In passing the new changes, it allows for jury members to be more well-rounded protected by their employers so that no undue pressure or influence is exerted in the course of their service.



In evaluating the effectiveness of the CTP in achieving justice, the legal mechanism of defences that  the accused can use in court must also be considered. In Australia, the trial system divides the two types of defences as partial (incomplete) and complete (absolute). This means that depending on the unique circumstance that a criminal case may present, the law, ideally, should be able to flexibly adapt and not discredit the acts of the accused presented before the court.

In particular, the partial defence of provocation to murder has been quite controversial over the recent years. Prior to amendments made in 2014, section 23 of the Crimes Act 1900 (NSW)  were identified with a number of limitations that the language posed.
Because legal defence is recognised as a mitigating tool that the defendant can choose to identify with an prove, this allows for his or her rights and reasoning to be heard - fulfilling the just notion of fairness and equality of parties in an adversarial system.

Regarding the 1997 case of Green v. The Queen, the complexity and vagueness of the old section 23 is evident. This incident involved the conviction of 22-year-old Mr Green who killed his 36-year-old “best” friend. On the night of the killing, both men heavily consumed alcohol, and when Mr Green had slipped into bed fully unclothed, the deceased attempted persistent sexual advances. As a result Mr Green killed the deceased, arguing that his sensitivity to sexual assault was enough to constitute the defence of provocation. The judge refused the defence, and upon appeal to the High Court, the expansive view that it took on now allows the so-called homosexual advance defence to be considered.

The case, therefore, reveals the need for efficient social value updates, such as the budding issue of homosexuality at the time. It also reveals the limitations of the old section 23, and the lack of specifications that led to renewed considerations of the law. With the difficulty of balancing the integrity of the laws for murder, and the justifications that the accused presents, the purpose of the criminal trial process in achieving fair and proportionate convictions is also affected.

Specifically, if legal defences not limited to provocation (such as SIAM, insanity, etc) becomes an easily- fulfilled defence, this would significantly devalue and undermine the essence of administering justice for the victim, who would like to see the accused being accounted for his actions (provided that he is guilty).

In later cases like the controversial case of R. v. Singh (2012), the lack of justice by cheapening human lives made out of social media also demonstrates the risks attached with using this defence. In this case, Singh successfully proved provocation, claiming that his wife insulted their relationship and that she threatened to have him deported. Although at the time the Crimes Act 1900 (NSW) was not as specific as it will be from 2014, the easy admission of satisfying a defence as a mitigating factor of someone’s crimes became highly distressing. This was because it raised the issue of the convenient use of defences to undermine the original purpose of the CTP to compensate for the bereaved.

Namely, if crimes are not punished in proportion to the harm caused to society, there is no justice, and this, in turn, would social confidence in the justice system would be dettered.

Furthermore, another major factor that poses as a limiting factor to the Australian CTP is the issue of court delays. In more recent years, according to the NSW Bureau of Crime Statistics and Research (BOSCAR), a report revealed the significant increase of pending caseload (1716 trials) between 2007 and 2014. These statistics revealed too that the average trial delay for defendants on bail increased of 34% between those years, and that those held on remand also an increase of 44%. The same disapproval is also seen in the 2009 article from SMH titled Bail law means jail for more juveniles. These sources thus point out the worrying detractions court inefficiency has on other important aspects of the individual’s life, such as their education, relationships, work, etc.

At the same time, resources and time are obviously limited, which would, therefore, place a greater onus on both the society and the prosecution to keep defendants at bay. As a result in more recent years, the Early Appropriate Guilty Plea Reform was commenced in April 2018, as part of a reform package that encourages defendants to plead guilty early on, or “just as the trial is about to begin”. Changes in legislation such as these would aim to reduce stress on both the victim and the accused, as well as saving money, time and human effort. Such changes would also allow offenders to be sentenced faster, allowing them to rehabilitate and return to society with the delays in court systems interfering as minimally as possible.

However, the encouragement of early guilty pleas must be exercised with very carefully, because undue pressure may be exerted by the prosecution and the defence counsel themselves should the pursuit of time efficiency is mistreated. Summarily, by abusing the notion of “justice” in the name of court responsiveness, the truth of particularly those who would later be found innocent is a violation of the purpose of a just trial system.

Additionally, the impact of court backlogs and time lags in between is discussed in a media article titled More judges needed to combat trial delays (Lawyer’s Weekly, 2015): “...another way [is to] appoint a few more public defenders and organise special call-overs - days in District Criminal Courts where the public defenders try to negotiate with defendants awaiting trial.”

Even as the government invest more in supplying legal manpower to clear up court backlogs, ultimately the effectiveness of this solution is reliant on the choice of the defendant. This makes the efficiency of the CTP highly dependant on the defendant’s discretion to plead guilty. In addition, there is the risk of undermining the original purpose of sentencing, as convictions may not be an accurate reflection of the level or proportion of crime committed, should convenience is sought before justice.



Hence by considering legal mechanisms such as the role of juries, the partial defence of provocation and court delays in the criminal trial process, the deliverance of justice in the criminal trial process is only achieved to an extent. Where jury members lack the experience in legal formalities and language, verdicts are at risk of being unreliable. The partial defence of provocation is also a difficult and controversial mechanism for the accused, should the level of proof for these be lowered and exploited. As well, court delays breach the liberty of all litigants, which when considered altogether, ultimately render the effectiveness of the Australian Criminal Trial Process limited and not perfect.