Australia and the United States of America share a common heritage, close ties to their mother country Of England, the same language, and a genuine sense of connection to one another though separated by a large ocean and thousands of miles. The similarities of our two individual criminal justice systems are particularly remarkable in so many ways. One may think of the rules regarding the investigation of crime, the fact finding process at trial, and the sense of fundamental fairness required for a just procedure. However, there is a strong lack of similarities between the two systems in considerable aspects.Differing views concerning the limits on law enforcement actions, the admissibility of evidence in criminal prosecutions, and the roles of the lawyer and the jury reflect important and significant value judgments which have been made by the people and governments of the two countries. Similarities Of the Regulation Of Criminal procedure Australia The regulation of criminal procedure in Australia occurs on two levels: state and federal. The Commonwealth’s Crimes Act of 1914 largely codified federal regulation of criminal procedure.
At the state level, where the majority of rimming activity is investigated and prosecuted, the regulation of criminal procedure is mixed. Victoria and Queensland have followed the federal lead by arranging their rules of criminal investigation and procedure. South Australia and New South Wales also substantially regulate criminal procedure statutorily. The other states rely upon a mixture of the common law and statute. The statutory and common law rules cover diverse matters such as the power of arrest, incarceration/bails interrogation, forensic examination and search and seizure.These rules are generally enforced indirectly through he mechanism of excluding evidence attained as a result of their breach at the trial of criminal defendants.
At common law, courts have discretionary power to exclude evidence that is improperly obtained or that might result in an unfair trial of the accused. In federal courts, which do not hear serious criminal cases, New South Wales courts, Tasmania courts, and Australian Capital Territory courts, the Evidence Act of 1995 governs admissibility.When passed, this Act was intended to operate as a uniform law of evidence throughout Australia.
Subsequently, however, not all states were convinced of he need for reform. Although the Evidence Act of 1 995 does not incorporate all the common law rules of evidence, it operates as a complete code in relation to the rules of admissibility. In terms of the regulation of criminal procedure, the Evidence Act of 1 995 reflects the common law position: a breach can result in the exclusion of evidence on the basis of unfairness or impropriety/illegality.Despite considerable statutory reform at both the federal and state levels, the meta-themes of criminal procedure are still largely common law based. These meta-themes include: the right to due recess, the right to legal counsel, the right to equal treatment before the law, immunity from involuntary detention without trial, and immunity from retrospective operation of criminal laws. These meta-themes decided by the High Court in the 1 sass. During this period, the primary focus of the High Court was upon the integrity of the criminal process rather than upon the rights of the accused.
While some members of the High Court were prepared to express their discussion in terms of rights based jurisprudence, the majority shied away from that path, preferring to assign the development Of his relatively new jurisprudence to the Court’s intrinsic power to protect its own processes and to ensure the observance of the rule of law. Australian courts have also stopped short of adopting the “fruit of the poisoned tree” doctrine applied by their U. S. Counterparts. There has to be a direct relationship between the illegal or improper conduct and the evidence adduced to justify its exclusion from the court.However, there is some overlap between fruit of the poisoned tree doctrine and the discretion to exclude confessional evidence for unfairness, especially where the search and seizure was accompanied by an unlawful arrest. Thus although Australian courts tend to strictly read statutory provisions enabling search and seizure, they often fail to exclude evidence from criminal trial that breaches the scope of those provisions. This reflects a realistic view that police investigation should not be overly observed if it produces appropriate outcomes.
In Australia, the need to maintain law and order is given priority over individual rights to privacy. United States The bases for the criminal procedure process in the United States are, in some ways, quite similar to those in Australia. As in Australia, the U.
S. Criminal justice system also is overwhelmingly state oriented, with relatively few crimes prosecuted in the federal courts. Those cases that are brought forward by U.
S. Attorneys tend to be drug oriented, involve movement across state lines, or result from specific nationally focused statutes.Unlike in Australia, where criminal procedure tends to be state based, American criminal procedure is federal, is not of recent origin, and relies overwhelmingly on constructions Of the united States Constitution by federal courts, and to a lesser extent state courts. For a considerable period of time, various states had conflicting requirements regarding lawyers for indigent defendants in criminal cases.
It took the United States Supreme Court’s decision in Gideon v. Handwriting, and later cases, to mandate the right to counsel for virtually all criminal defendants at the critical stages of both federal and state criminal prosecutions.Similarly, while some states excluded unlawfully obtained evidence in criminal cases prior to the sass, most did not. Exclusion became the norm in all criminal cases involving violations of the search and seizure provision of the Fourth Amendment.
The United States Supreme Court’s construction of constitutional rights superseded state law and soon dominated the national debate, as seen clearly in the confession cases dealing with the right to remain silent. Once the Court’s decision in Miranda v.Arizona was issued in 1966, the debate concerning the use of the privilege against self incrimination turned almost entirely on issues surrounding Miranda such as definitions of custody, interrogation, and waiver. Independent state rules on this important point became almost nonexistent.
Differences in the Justice System Search and Seizure A search occurs when a government employee or agent violates a reasonable expectation of privacy. A seizure is the interference with an individual’s possessors interest in property. The property’s owner must have had a reasonable expectation of privacy in the items seized.A person is seized when law enforcement personnel use physical force to restrain the person if a reasonable person in a similar situation would not feel free to leave. In the united States, the Fourth Amendment to the U. S. Constitution protects every citizen’s right to be free from unreasonable government intrusion into his or ere body, house and property whether in public, or at home, work or school. Australia has no constitutional protection against unreasonable search and seizure like the United States’ Fourth Amendment.
The prohibition on unreasonable searches and seizures restricts the actions law enforcement personnel may take when performing a criminal investigation; however, the ban also prohibits unreasonable searches and seizures in the civil litigation context. Law enforcement may conduct a search only if individualized suspicion motivates the search. The Fourth Amendment prohibits generalized earaches, unless extraordinary circumstances place the public in danger. Consequently, in Australia, the controversy between the right to privacy and responsible police investigation that dominate U.
S. Recurrences are sublimated within a process of statutory interpretation. The High Court premises such legal interpretation on the idea that unambiguous legislative language is required in order to abrogate common law rights to freedom from interference to property and person, provided the legislature’s intention to do so is clear. The Court’s role largely is confined to determining whether he investigative activity at issue falls within the scope Of the relevant statutory provision. Sentencing While it may appear that judicial officers are solely responsible for sentencing, much of what they do is guided by laws set by governments.In Australia sentencing is a shared responsibility between three groups: Parliaments which create offences, specify maximum penalties, specify principles for the courts to apply, and create the tools/sanctions available to the courts; Courts who apply the law within the framework set by parliaments, set specific sentences for individual offenders, and higher courts also specify principles or lower courts, as well as hear appeals against leniency or severity of sentences, and have no control over an offender once sentence passed; Executive who are correctional authorities that run community corrections programs and the prisons, control movements of offenders in prison, and include parole boards that supervise offenders while on parole.
The Australian legal system aims to deter and punish offenders through imprisonment in correctional facilities and through penalties such as fines or withdrawal of licenses.Australian courts are able to sentence offenders to worth or long-term stays in a correctional facility, community service and other forms of supervised work, home detention, and good behavior bonds under supervision where the offender must report to a police station On a daily or weekly basis. Some imprisonment is on a part-time basis, with parents who have been found guilty of non-violent offences. Some people are held in custody prior to hearing or sentencing by a court, with those waiting for sentencing often being held on remand in correctional facilities or released on bail, with some financial surety from themselves or a third party such as a parent. In America, most sentencing policies were borne from the Sentencing Reform Act of 1984, which created the United States Sentencing Commission.
This group was charged with structuring uniform sentences that would apply across all federal district courts.Federal judges would then determine sentences based on a point system matrix that accounted for the specific offense, the offender’s criminal history and other mitigating or aggravating circumstances. Prior to this change, sentences varied greatly depending on the federal crime, the defendants involved, as well as the particular federal district in which the crime occurred. Following this action on the federal level, many states adopted legislation to create sentencing commissions for presumptive guidelines on the state level. Whether they were politically motivated or based on changing policy, states created minimum sentencing guidelines to deter crime and create uniform sentences to avoid disparate sentences.While guidelines have been successful in establishing common punishments, prosecutors and defense attorneys have had continual difficulties defining criminal behavior and how it should be punished, especially given the unique circumstances that each case brings.
Judges frequently have little discretion to make a different approach from sentencing guidelines. While it provides a uniform platform for sentencing and supposedly removes bias, the absence of judicial discretion sometimes has tragic results. Conclusion The American criminal justice system and the Australian criminal justice system share many similarities but have differences as well.