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COURT OBSERVATI ON Assessment item two

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Kelly Leek: n10718176 JSB173: Understanding the criminal justice system | Juliet Jemesen

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QUESTION ONE Throughout the following paper I will discuss my observations on the documentary ‘On Trial’ which consists of three cases; use of an unlicensed firearm, a murder trial and finally, an armed robbery and assault. All of these cases are considered indictable offences which requires them to be resolved by the adjudicative arm in the High Courts of Australia. The adjudicative arm involves a set of Jury members who are called on behalf of the community to assist the Courts in determining whether the accused is guilty or not guilty (Findlay, Odgers & Yeo, 2014). The accused is represented by a Defence Barrister and the Complainant is represented by a Prosecutor. The accused is present throughout the entire trial and must be of sound mind before the trial commences (On-Trial, 2011). The Judge is required to reach a dispositive decision and to decide the purpose for which sentences may be imposed. The High Courts within Australia include both the District Courts and Supreme Courts which predominately deal with common law matters (Hayes & Prenzler, 2014). Within each case there was an adversarial approach taken and each court followed a traditional courtroom process.

The first case involves Jason Courtney who faces three firearm counts - possession, using to intimidate, and firing an unlicensed firearm. He also stands accused of holding a gun to Paul Magyer’s head and threatening to kill him. He was found not guilty by the Jury for firing an unlicensed firearm and was imposed a custodial sentence which required him to complete another five months in custody. Case two involves Anthony Evans who confessed to murdering his girlfriend, Alana Dakin. They led a six-month relationship full of violence and were described as being as ‘crazy’ as one another by younger brother, Wayne Evans. Anthony’s defence team are claiming that he was having a provoked episode of schizophrenia which led him to being disorientated and unaware of what he was doing. Anthony was found guilty by the Jury and sentenced to a minimum of 11 years in prison before being considered for early release. Trial three involves taxi driver Albert Frankland who claims he was assaulted and robbed by Steven Tofala’ao. The Defence team claim that DNA was planted or tampered with by police to gain a conviction. The Jury found Steven Tofala’ao guilty and he was sentenced to a total of 6 years of

Word Count: 1702 imprisonment. Steven Tofala’ao is also required to receive special care post his release from jail for drug, alcohol and emotional issues.

QUESTION TWO Throughout each trial it was evident that the courts followed the framework of a due process model (DPM). A due process model is concerned with the accuracy and reliability of the decisions made within a courtroom and assists the courts in distinguishing between factual guilt and legal guilt (Palmer & Ross, et al, 2016). Therefore, the perpetrator and the complainant have a greater chance of receiving a fairer trial. Many elements that comprise a DPM can be observed in the trials of Jason Courtney, Anthony Evans and Steven Tofala’ao. The DPM was evident within the first case when Judge Marien informs the Jury of a key principle; “innocent until proven guilty beyond reasonable doubt”. The Jury was reminded of this principle multiple times which shows the Judges effort to ensure a fair trial and pay respect to the person who stands accused of committing a crime. This was reinforced throughout each trial which also aligns with the core features of the adversarial process (Hayes & Prenzler, 2014). Another example of the DPM is when Anthony Evans received a second trial due to errors that were made by the Judge in the first trial. This demonstrates the main goal within the courts to ensure that there is no room for error or an unfair trial. The DPM is also concerned with the power of state officials to wrongly deprive citizens of their liberty and rights (Daly, 2011). This was particularly evident when Judge Helen Murrel stated in Steven Tofala’ao’s case that “it is very important for the judge to ensure that there is no prejudice to the accused”. This approach upholds the integrity of the DPM within the CJS which supports the vulnerable and less fortunate people. Another aim within the DPM is to provide rehabilitation programs or support for those who are found guilty (Rich, 1977). This was evident within the final case of Steven Tofala’oa, when he admitted to the court that his offense was an act influenced by drug and alcohol use. Judge Helen Murrel then took this into consideration when deciding his sentence and provided Mr Tofala’oa with strict direction. The direction was clear and stated that there is “a need for a long period of support in relation to drug alcohol and emotional issues when the offender does re-enter the community and while he is

Word Count: 1702 incarceration”. This demonstrates the courts central focus of providing the most necessary support for the defendant and eliminate reoffending. The crime process model (CPM) is concerned with the efficiency of the criminal process (Daly, 2011). Therefore, the CPM is a quicker and more “black and white” procedure. Leading the court process in this manner can result in miscarriages and failures of justice. The process is faster, uses less resources and focusses on eliminating re-offending (Daly, 2011). The CPM fails to provide support for the vulnerable and less fortunate people who cannot have access to legal support. Therefore, the CPM is considered to be an unfair approach to deal with serious offending cases and is rather, more suitable for delinquent and black and white crime (ie. Speeding offences) (Vitis, 2020). This process was not evident within any of the cases within the ‘On Trial’ documentary as they were indictable offences that require a DPM approach.

QUESTION THREE Therapeutic Jurisprudence (TJ) is a philosophy of law that aims to improve the emotional and psychological wellbeing of those who come into contact with the law (King & Freiberg, et al (2014). TJ has been described as a framework for asking questions and raising certain topics that may otherwise, go unspoken. Additionally, TJ provides the courts with perspectives from each person involved and also gives them an opportunity to express their apologies, feelings and thoughts (King & Freiburg, et al (2014). TJ occurs by having open discussions with a mediator to guide the process and ensure every perspective is considered and heard. This process is applied in family courts, drug courts, Murray courts or children courts. Therefore, TJ was not evident within any of the cases within the ‘On Trial’ series as they were indictable offences. Some elements of TJ can occur through behaviours, body language and in some instances, the formal process. However, there were instances where TJ that was not evident in the slightest and could have potentially been applied to the case to improve the outcomes for the complainant and the accused.

The first noticeable difference between a TJ approach and the approach taken within the documentary series was when the prosecutor and defence barrister communicated to the

Word Count: 1702 witnesses. A TJ approach allows each person involved to speak openly and freely about their feelings and thoughts, whereas, the traditional courtroom approach requires that the witnesses only engage in monologue conversation and answer the questions that are asked of them. The witness is required to answer each question as concisely as they can in order to avoid prejudicial comments being made in front of the Jury. Therefore, Alana Dakin’s best friend – Melissa Patel was asked to refrain from elaborating on her responses when having a conversation in a dialogue manner with the state prosecutor – Paul Yovich. Based on the body language and responses of Melissa Patel, it was clear that she was attempting to elaborate on her answers and share her feelings of anger and sorrow with the court. However, the adversarial approach and nature of the traditional courtroom did not allow her to express her feelings which could have been resolved within a TJ approach. This left Melissa feeling as though the full story of Anthony Evan’s and Alana Dakin’s six-month violent relationship was not being shared with the Jury. A similar instance occurred within the case of Steven Tofala’oa when the complainant – Albert Frankland claimed that he did not feel as though he was able to say what he truly wanted to. He appeared quite agitated when on the witness stand and most likely could have benefited from the TJ approach in order to elaborate and share his thoughts.

Another key component within the TJ approach is to restore and lead to improved outcomes for each person involved (Redlich, 2014). This approach was somewhat disregarded within the second case of Anthony Evans. Whilst the accused was represented by a strong defence team and given the right to a ‘fair trial’, further consideration for his mental state and sentence type could have been improved by implementing some elements of TJ. Throughout this trial it was evident that Anthony Evans’ mental illness was progressively worsening as the trial went on, which led to there being concerns of the trial becoming aborted. This is due to the requirement of the courts to ensure that the perpetrator is of sound mind before commencing the trial (On-trial, 2011). As the trial commenced into topics regarding Anthony Evans’ mental health, he was moved into a separate room for a period of time in attempt to relax him. However, he was still required to listen to the trial which may have made very little difference to his level of stress. When Anthony Evans was moved into a separate room and handcuffed, Defence Barrister –

Word Count: 1702 David Edwardson requested that the handcuffs were removed as they cause him distress. This was denied by the Judge. Therefore, some elements of TJ could reduce his level of stress by relaxing the conditions of the trial to ensure that he comprehends the proceedings. Moreover, further support and consideration could have been implemented when determining the sentence length and type for Anthony Evans. For example, imposed rehabilitation instead of imprisonment may lead Anthony to a healthier outcome through restoration. Therefore, intertwining some elements of TJ can improve the outcome for the perpetrator, the complainant and the community.

Word Count: 1702 BIBLIOGRAPHY Daly, K. (2011). Aims of the Criminal Justice System. Lawbook Co. https://pdfs.semanticscholar.org/ae9b/9a95ff945a80f09c36400bce8a4e7682fc24.pdf

Findlay, M.m Odgers, S. & Yeo, S. (2014). Australian Criminal Justice. Oxford University Press.

Government. (2020). About the District Court. Queensland Courts. https://www.courts.qld.gov.au/courts/district-court/about-the-district-court

Hayes, H. & Prenzler, T. (2014). An introduction to crime and criminology. P.Ed Australia.

King, M., Freiberg, A., Batagol, B. & Hyams, R. (2014). Non-adversarial Justice.

Palmer, D., Ross, S., Lint, W. D., Dalton, D., Warren, I., Morgan, F., Clare, J., Evans, R., Ryan, E. & Martin, G. (2016). Crime & Justice: A guide to criminology. Thomson Reuters (Professional) Australia pty limited.

Redlich, A. D., & Han, W. (2014). Examining the links between therapeutic jurisprudence and mental health court completion. Law and Human Behavior, 38(2), 109–118. https://doi.org/10.1037/lhb0000041

Vitis, L. (2020, August 27). JSB:173 Understanding the Criminal Custice System. Blackboard. https://echo360.org.au/section/7a7143b0-3345-43a4-b62e-3c75dfcf1b4e/home...