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Justice in the Local Courts

Introduction

This essay will explore the NSW Local Courts function in our criminal justice system against the
backdrop of quick expansion in its summary jurisdiction. It will further analyse how this may impact
upon the quality of justice delivered especially to an unrepresented defendant when the majority of
criminal cases are dealt with in the Local Courts.
1


A brief outline

In NSW, the criminal courts structure is divided into two thresholds. The lower courts include Local
Courts, Childrens Courts and Coroners Courts and the higher courts being the District Court and the
Supreme Court. The Local Courts role lies mainly in exercising summary jurisdiction whereas more
serious indictable offences are dealt with in the higher courts. However, it will be analysed later that
this is more than just a jurisdictional divide and there are other aspects that significantly distinguishes
the Local Courts from the higher courts. The summary offences in this essay refer to those crimes
dealt with summarily in Local Courts which include those previously indictable offences now
downward classified to be included in summary offences by relevant legislations.
2


A tale of two-tier system

The idea of a two-tier justice system was pioneered by McBarnet through her study of the Scottish
criminal justice system.
3
She highlighted the disparity pf proceedings and procedures, ideology and
practice existed between the higher and lower courts. This gap,
4
arguably, is also present in our
criminal law system upon my observation in the Local Court and District Court, although the extent to
which it exists in NSW is not as deep as McBarnet observed in Scotland.

Triviality

One of the dominant features of a two-tiered system that McBarnet criticised is the perceived triviality
of cases occurred in lower courts. This purported common perception of triviality leads to the lack of
public interest in cases in lower courts. This is confirmed by my experience at Local Court hearings. A
large proportion of cases Ive attended have almost no public attendance apart from defendants
relatives. The conditions further mirror McBarnets observation when I noticed that the public bench
is indeed filled by upcoming defendants and police witnesses. This phenomenon is considered highly
undesirable by McBarnet as it threatens one of the essential requisites of due process ! public
administration of justice.
5
Her underlying assumption is that this absence of public supervision
inevitably invites the abuse of courts power in interfering with ones freedom. This couples with the

1
Local Courts handles approximately 90% of cases in NSW. For 1999, number of cases finalized is 130,000. NSW
Bureau of Crime Statistics and Research, Key Trends in Crime and Justice NSW 1999 (2000) at p26
2
One such act is Criminal Procedure Act 1986
3
Doreen McBarnet, Conviction (1981), at 175 of Criminal Laws Materials and Commentary on Criminal Law and Process
in New South Wales 3
rd
ed.
4
Neil Hutton, The sociological analysis of courtroom interaction: a review essay, (1987) 20 ANZJ Crim at p114, para 2
5
Doreen McBarnet, Conviction (1981), at para 1, p176 of Criminal Laws Materials and Commentary on Criminal Law and
Process in New South Wales 3
rd
ed.
fact that the penalty imposed by lower courts are usually much less severe
6
and hence afforded less
due process as evidenced by the procedural informality represents a dangerous combination for
defendants. It is contested that it creates an anomaly where due process is awarded in accordance
with the seriousness of alleged crime.
7
However, Hutton adopts a more pragmatic view and argues
that McBarnets concern over the erosion to due process is unfounded and her concept of due
process is over-inclusive because it implies not only protection for the factually innocent, but also
the factually guilty.
8
He rejects her view as utopian and asserts that there will always exist an
ideological gap between legal truth and whole truth of a case.
9
Hutton further questions McBarnets
utopian views representativeness and concludes that most lay people accept the deficiency and
inequality that exists in the justice system as a realistic and inevitable side-effect of its functioning.
10


However, Huttons view cannot be received in whole. Although McBarnets expectation of the lower
courts functioning is susceptible to being accused of over-idealistic and far-fetched, it does alarms us
of the trend and state of working of lower courts. Lower courts cannot afford to disregard its subjects
perception, to do otherwise would create the environment in which its law become more
administrative in nature and transform itself into a mere extension of bureaucracy. This would lead to
loss of its legitimacy as agent of justice. Additionally, just as Hutton criticises McBarnet for assuming
that she shares definition of due process and justice with all the people, he should not treat peoples
apparent lack of protest
11
as satisfaction towards current the standard of summary justice in
operation. McBarnets inability to offer an alternative mode of functioning for summary criminal justice
system should not be utilised to argue against the exposure of systems insufficiency. This gap
between ideology and reality is not so insignificant as to be brushed aside by Huttons legal
pragmatism. Indeed, the closure of this gap should serve as a beneficial social objective which
strengthens lower courts moral authority.

Legal irrelevance

The perception of legal irrelevance that pervades the lower courts is another factor that impedes the
delivery of good justice according to McBarnet. She argues that the apparent legal and factual
simplicity of lower court cases is highly misleading as it masks the underlying issue of virtual
prohibition on the development of complex legal arguments from summary offences.
12
This does raise
concerns within the Australian context where there exists a high rate of absence of legal
representation in NSW Local Courts. The percentage of defendants obtained legal representation has
suffered a significant and consistent decline from approximately 61.5% in 94/95 to 54.3% in 98/99.
13

This is further confirmed by my court observation where there are at least 8 cases Ive attended in
Local Court in which the defendant has failed to obtain legal representation. McBarnet further
stresses that simple provision of legal representation is insufficient because this is also a structural
issue that is entrenched in the attitude and legal culture of lower courts participants. Her conclusion is
supported by my observation in Local Courts where, contrary to that in District Court, there is almost

6
In Australia, the maximum sentence a Local Court can impose is two years, see Criminal Procedure Act 1986 s 27(2),
s28
7
Doreen McBarnet, Conviction (1981), at para 3, p176 of Criminal Laws Materials and Commentary on Criminal Law and
Process in New South Wales 3
rd
ed.
8
Neil Hutton, The sociological analysis of courtroom interaction: a review essay, (1987) 20 ANZJ Crim at p114, para 1
9
Ibid, para 2
10
Ibid, para 5
11
Ibid, para 3
12
Doreen McBarnet, Conviction (1981), at para 2&3, p177 of Criminal Laws Materials and Commentary on Criminal Law
and Process in New South Wales 3
rd
ed.
13
NSW Bureau of Crime Statistics and Research, Key Trends in Crime and Justice NSW 1999 (2000) at p26
an absence of charged debate over complex legal arguments. It is reasonable to conclude that it is at
least partially attributed to the lack of proper legal representation. It is often, as McBarnet describes
the accuseds word against the police or in our case, the DPPs.
14
This problem is worsened further
as this sense legal irrelevance generates further perception of triviality and thus deters further public
interest in cases in lower courts, which in turn influences their legal relevance, creating a vicious cycle
that further reinforces the hallmark of disparity between lower and higher courts.

Impact on quality of justice

Although our criminal justice system does not mirror McBarnets observation and is absent of the
extremities she discovered in Scotland in the 1980s, the very existence of the not insignificant
disparity hinders quality of justice delivered. The concept of quality of justice encompasses the
criminal laws subjects! the wider communitys evaluation about the appropriateness of the decision
delivered as well as acceptance of the process through which that decision is arrived at. It can be
argued that the quality of justice is being detrimentally affected by factors such as lack of proper legal
representation, courtroom communication difficulties and atmospheric, social and psychological
pressure surrounding proceedings. Quality of justice is the necessary precondition of moral authority
wielded by the summary courts. As Durkheim argues that the communitys collective conscience
defines crime. It follows that when the community perceives justice is hindered by this disparity of
ideology and practice in the courtroom, the lower courts would cease to be focal point of communitys
collective conscience and their moral authority would be weakened through this process.

Issue of court communication

Communication problems in Local Courts negatively influence the quality of justice delivered through
instilling doubt and confusion on the inexperienced defendants. Carlen in her article Magistrate
Justice expresses concerns over the physical arrangement in the courtroom, which deliberately
detaches defendants from other court participants.
15
The communication difficulty generated from this
positioning is evident from my court attendances. The magistrate, choosing not to use the microphone
due to preference for natural sound, was repeatedly asked by defendants to reiterate instructions
and questions and had to ask defendants for repetition or speak louder several times in return. This
difficulty is exacerbated as people excuse themselves from the courtroom and the noise from waiting
area outside intrude and completely distracts the questioning process and caused quite a few
exchange of I cant hear you. Can you speak up? This corresponds with Carlens observation of
chronic breakdown in channel of communication in courtrooms. NSW Local Court magistrate
Deborah Sweeney further comments in her article that communication and comprehensibility is stifled
by the technical legal languages often employed in proceedings.
16
Her experience as a magistrate in
a small town working with Aborigine defendants made her more aware of the importance of speaking
in a very plain and simple way. She considers it an essential element in providing access to justice
even though it means requiring some formal process to be tempered with some informality.
17


Issue of court environment and its atmosphere


14
Doreen McBarnet, Conviction (1981), at para 4, p177 of Criminal Laws Materials and Commentary on Criminal Law and
Process in New South Wales 3
rd
ed.
15
Pat Carlen, Magistrate Justice (1976), at para 2. p179 of Criminal Laws Materials and Commentary on Criminal Law
and Process in New South Wales 3
rd
ed.
16
Deborah Sweeney, Court Communications, Reform Issue 77 2000 at p17 para 5
17
Ibid, at p18 para 5
Sweeney considers defendants proper participation in court proceedings an indispensable
ingredients in criminal justice,
18
however this is greatly inhibited by the strange atmosphere and
settings created through the courts ritual, formality and an unrepresented defendants lack of
understanding of them. This unfamiliarity acts as a source of anxiety and considerably intensifies the
communication problem by reducing defendants ability to understand" and express themselves.
19

This predicament that confronts defendants is characterised by Carlen as due to the deliberately
designed artificial environment in which they are removed from the ordinary conversational zone.
20


Carlens claim is supported by my court observation where several defendants, due to the obvious
uneasiness, attempted to rise from seat when questioned by the prosecution. Additionally, some
defendants regularly fail to answer magistrates question and sometimes repeats themselves in
nervousness. It is also not unusual that the magistrate would pauses the proceeding when court
officer channel through information regarding a previous matter interrupting defendants testimony.
These awkward concurrent happening of events often bewilders defendants and the fact they are
inexperienced is completely neglected. This echoes Garfinkels analysis of the degrading
characteristics of court proceeding from defendants perspective. It was argued that these
proceedings are akin to degradation ceremonies which ignores the accuseds perspective through
isolation and objectise and dehumanise the defendants in the process.
21


Issue of imbalance of power

Although there exists no official plea-bargaining in the Australian jurisdiction, it is a form of informal,
semi-adversarial/semi-co-operative process widely practiced in NSW.
22
Baldwin and McConvilles
study of an English court equivalent to the NSW District Court reveals that defendants changing their
plea to guilty are often due to feeling of hopelessness of arguing against police evidence and social
and psychological distress ensuing it.
23
In the case of an unrepresented defendant, it is effectively
the acccuseds word against the policeman which represents a gross imbalance in power. Such a
defendant is particularly vulnerable and feel pressured to plead guilty due to the improper
inducement they might be exposed to, which Mack and Roach Anleu identified as one of the
obstacles needed to overcome in order to enhance justice of the Australian legal system.
24
This is
alarming with a high percentage of disposals of cases in Local Courts by way of other than defended
hearing
25
suggesting the extent to which innocent defendants may have been pressured into pleading
guilty to a less serious charge. Perhaps defendants common sense of frustration and foremost desire
is well captured by one defendants obviously disgruntled remark during my court observation, I just
wanna get out of here.

Conclusion


18
Ibid, at p17 para 2
19
Ibid, at p17 para 4
20
Pat Carlen, Magistrate Justice (1976), at para 3. p179 of Criminal Laws Materials and Commentary on Criminal Law
and Process in New South Wales 3
rd
ed.
21
Harold Garfinkel, Conditions of Successful Degradation Ceremonies (1965) 61 American Journal of Sociology 420
22
K Mack and S Roach Anlen, Balancing Principle and Pragmatism: Guilty Pleas (1995) 4 Journal of Judicial
Administration 232 at 233 para 1
23
Criminal Laws Materials and Commentary on Criminal Law and Process in New South Wales 3
rd
ed.
24
K Mack and S Roach Anlen, Balancing Principle and Pragmatism: Guilty Pleas (1995) 4 Journal of Judicial
Administration 232 at 237
25
In 1999, the figure is 87% for Local Courts, 77.4% for District Courts, NSW Bureau of Crime Statistics and Research,
Key Trends in Crime and Justice NSW 1999 (2000) at p26
In NSW, there does exist a significant disparity between the Local Courts and higher courts, although
its does not entirely mirror those observed in other jurisdictions. However, the very existence of such
significant gap between the ideology and practice of Local Courts and its lack of consideration for its
potential subject of punishment calls for further empirical study, scrutiny and reform if we were to
improve our criminal justice systems efficiency and enhance the quality of justice delivered to ensure
the lower courts firmly continue on the path to uphold justice in our community.
Appendix

Courts Time Type of case Defendant Name
District Court
(Downing Centre)
Courtroom 2.1
22 Mar,
2007
Drug possession Betancur, Jaime
Local Court
(Downing Centre)
Courtroom 5.2
25 Mar,
2007
Traffic offence Jajaw, Thamir
Traffic offence Kerek, Laszlo Lajos
Drug possession King, Nathaniel
Assault Martini, Gavin
Assault Shiels, Benjamin
Barry
Break and enter Why, Deborah Jane
Assault Sultana, Joseph
28 Mar,
2007
Drug possession McGrail, Nathan
John
Resist arrest,
assault
Vincec, Joseph
Traffic offence Nohra, Michael
Assault Laws, Paul
Traffic offence Leighton, Philip
Drug possession Ku, Jeffrey Chi Hang
Assault Bishop, Justin
Break and enter Griffiths, Leonard
30 Mar,
2004
Assault, resist
arrest
Bonner, Stephen
John
Assault Gulbin, John
Drug possession Farrugia, Danielle


Bibliography

D. Brown, D. Farrier, S. Egger, L. McNamara Criminal Laws Materials and Commentary on Criminal
Law and Process in New South Wales 3
rd
ed. (2001)
Doreen McBarnet, Conviction (1981)
Neil Hutton, The sociological analysis of courtroom interaction: a review essay, (1987) 20 ANZJ Crim
Key Trends in Crime and Justice NSW 1999, NSW Bureau of Crime Statistics and Research 2000
Pat Carlen, Magistrate Justice (1976)
Harold Garfinkel, Conditions of Successful Degradation Ceremonies (1965) 61 American Journal of
Sociology 420
K Mack and S Roach Anlen, Balancing Principle and Pragmatism: Guilty Pleas (1995) 4 Journal of
Judicial Administration 232

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