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The criminal justice system and the rule of law

In everyday use, the rule of law is often equated with law and order – the idea that
people should obey the law. However, as Bottomley and Parker observe, while law
and order might be an aspect of some conceptions of the rule of law, it is not
really at the heart of it.’ They suggest that the rule of law is valued because it is thought to curb the power of government,
protect the rights and liberties of citizens and promote personal autonomy, in that
individuals can predict the circumstances in which government will interfere with their lives.

The criminal justice system and the rule of law

Focus on the rule of law

Proponents of the rule of law suggest that it constrains and legitimates the power of the
state to punish by placing a premium on the clarity, rationality and coherence of the criminal
law2 Neal has also stressed that the rule of law, at least in a developed form, requires a legal system
for adjudicating disputes involving the general rules that is independent of the executive 3 Two Latin maxims are often
referred to: nullum (limen sine lege – no crime without law; and nulla poena sine lege – no punishment without law.

But what is the rule of law? At its most basic, the rule of
law is the principle that every person should be subject to the
same law. It abhors arbitrary governmental rule or action,
and seeks to provide citizens with some basic protections by
requiring the government to act according to the law.

Within the criminal law, the rule of law is generally
associated with the right to a fair trial, the presumption of
innocence, the rule against double jeopardy, the requirements
of habeas corpus and the principle of legal equality. Beyond
this, the content and effect of the rule of law in the criminal
law is ill-defined, although most lawyers have an intuitive
sense of when ‘reforms’ threaten the rule of law, even if
the exact mischief is more difficult to identify. This article
discusses recent developments within the NSW criminal
justice system that raise significant rule of law issues.


The framers of our Constitution made a conscious decision
not to include an express guarantee of ‘due process of law’
in the Constitution on the basis that Australia’s legal and
political traditions already respected the right to a fair trial.4

The High Court was not prepared to entertain the argument
that unfairness to an accused arising from the operation of
a validly enacted statute was, of itself, sufficient to justify a
stay of proceedings. 5 The unsuccessful argument was that the
so-called ‘rape shield’ provision operated to prejudice a fair
trial by excluding otherwise relevant and probative evidence
of prior sexual experience, and resulted in an unfair trial.

Section 80 of the Constitution provides that ‘[tlhe trial
on indictment of any offence against any law of the
Commonwealth shall be by jury.’ Although the High Court
has identified and upheld the essential features of trial by
jury – where s80 guarantees a jury trial, that right cannot
be waived6 and any verdict must be unanimous7 – in the
main it has taken a fairly narrow view of the scope of such a

Those cases also confirm that any such constitutional
guarantees will apply only to Commonwealth offences. The
existing state provisions for majority verdicts8 and judgealone
trials9 are not unlawful in relation to state offences.
In addition, the High Court has held that s80 guarantees
trial by jury only when the trial is on indictment. 1o There is
no constitutional constraint on federal or state legislatures
from making even serious offences summary simply by
designating them as such, or by creating new purely
summary offences. In fact, as Findlay has recently pOinted
out,ll the impact of the jury on criminal justice is being
systematically and radically eroded by the expansion of
summary jurisdiction.

Although the institution of the criminal trial still retains
considerable symbolic, rhetorical and ideological power in the popular imagination, it is
becoming increasingly irrelevant to much of what actually happens
in the criminal justice system, The protections associated v.,ith trial by
jury have little relevance La most accused persons. In NS\V in 2006,
141,389 people had criminal matters finalised in either the Local Courts
or Childrens Court, where jury trial is not available, and only 556 out
of 3,331 06.7%) of those who had matters determined in the District
and Supreme Courts exercised their right La trial, 12 This means that fewer
than 1% of all people dealt with by the NSW criminal justice system in
2006 proceeded La a full criminal trial (either by jury or judge alone).

In Woolmington v DPP, Lord Sankey observed that ‘no
matter what the charge or where the trial, the principle that
the prosecution must prove the guilt of the prisoner is part
of the common law of England and no attempt La whittle
it down can be entertained’.l3 However, as a number of
commentators have observed,14 this so-called ‘golden thread’
is becoming increasingly moth-eaten by statutory exceptions
and judicial decisions that impose evidential burdens on the
accused. Such modifications are generally justified on the
basis that the presumption of innocence and the defendants
right to avoid mistaken conviction must be balanced
against the community’s interest in law enforcement and the
practicalities of proof.

A reversal of the burden of proof occurs where an
evidentiary burden is placed on the defendant to prove
some fact in issue – often the basis of an excuse – to the
balance of probabilities. An example of statutory reversal
of proof can be found in provisions relating to state drugsupply
charges – if an accused person has more than a
specified amount of a prohibited drug in their possession,
then they are presumed to have that drug for the purpose of
supply, unless they can rebut the presumption. IS
Such reversals are becoming more common. Not all
reversals will offend the rule of law, but they may become
problematic in the context of serious offences where
pragmatic considerations of proof are seen to override
the legitimate rights of the defendant. In addition, the
golden thread is under assault from the courts themselves,
which have imposed ‘evidential’ burdens of proof on
accused people in areas as diverse as self-defence, duress,
reasonable mistake of fact, and even the general issue of
voluntariness. 16 These effectively require the accused to
produce sufficient evidence before they can raise certain
defences, which represents a departure from the principle
that the onus of proving guilt rests with the prosecution.

At the Commonwealth level, this trend has been endorsed in Further, an increasing number
of statutory offences do not require the prosecutor La prove that an
accused person had the criminal intent, or mens rea, to commit the
offence. The creation of such strict or absolute liability offences1P is now so common that the NSW

Legislative Review Committee has recently adopted a set of
principles for considering whether Bills or Regulations that create
such offences trespass unduly on personal rights and liberties.

A longstanding principle of the common law is that a
person should not be placed in peril of being convicted of
the same crime for the same conduct on more than one
occasion. This rule has now been eroded by Part 8 of the
Crimes (Appeal and Review) Act 2006, which provides for the
retrial of persons for serious offences in certain situations,21
notwithstanding their acquittal by a judge or jury. One
impetus for these reforms has been technological advances
in evidence and proof such as DNA profiling. The problem
for the rule of law is: if the innocent can be exonerated on
Bail is another area where statuLary reform over the last 20 years has
steadily eroded the presumption of innocence and the right to be at liberty until convicted.

An accused was generally entitled to bail to enable the
preparation of his or her case to be as full, thorough and
unfettered as possible.19 Statutory schemes provide that
accused people have a general right to bail, a presumption
in favour of bail, no presumption or a presumption against
bail, depending on the offence.

The steady trend of reform, however, has been to
reduce the number of offences for which there is a right
to bail, and to markedly increase the number of offences
or circumstances in which there is either no presumption
or a presumption against bail, Recent amendments to the
Bail Act 1900,20 which are about to commence, will see
further presumptions against bail for serious firearms and
weapons offences and limits placed on the number of bail
applications that may unduly trespass on the right to be
treated ‘as though innocent’.

Aside from changes to the substantive bail law, since
1 September 2007, accused persons in custody are not
physically present in court but rather appear by way of
audio-visual link in all appearances except hearings and
sentence proceedings. Concern has been expressed by the
Bar Association, the Law Society and the Aboriginal Legal
Aid services that the blanket use of this technology has the
potential to alienate the accused from the court, undermine
the relationship between legal practitioner and client, and
reduce the quality of service to clients.

The basis of newly available cogent evidence, why should the
guilty remain free on the ‘technicality’ that they have already
been acquitted? The legislation commenced on 15 December
2006 and is retrospective.


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