Role of discretion in the criminal justice system 2 PDF

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Discretion is judgment. Judgment is exercised by applying principles and values and facts. It is by trying to put together a judgment and weighing the competing versions and choosing between them or predicting how an ultimate fact finder might resolve the decision. The role of discretion within the ...

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Discretion is judgment. Judgment is exercised by applying principles and values and facts. It is by trying to put together a judgment and weighing the competing versions and choosing between them or predicting how an ultimate fact finder might resolve the decision. The role of discretion within the criminal justice system has many advantages and disadvantages in the way it deals with achieving justice for individuals. Discretion can be explored through cotemporary examples within the criminal investigation process, criminal trial process, sentencing and punishment. Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are the powers that police have been given in order to carry out their discretionary roles. It is police powers that allows the use of discretion with tasers, in defence to a threat. ABC Report “NSW police probe 'unnecessary' Tasering” questions the use of tasers, after there was a misuse of discretion by police to a 38yr old man. Within the criminal investigation process, discretion is relevant through the toughened bail laws, which are represented in the Bail Act Amendment in 2007. It was “The Case of Andrea Patrick 1993”, being amended, that removed the presumption in favour of bail. The government that has used their discretion in this case to reform the law, by aiming to protect the victims and society. Sydney Morning Herald article “Disappearing right of bail” in 2010, outlines that the increasing number of prisoners is leading to shortage in cells and also higher cost for the taxpayers. It also questions the affect on those who are put on remand, who may be innocent. Though these tough laws have been created by the discretion of the government, it is the discretion of the courts to apply these laws appropriately. The burden and standard of proof is essential to the criminal trial process. The collection of evidence is the discretion for detectives and is a crucial aspect of the criminal trial process. Technological advancements of DNA has lead to many arguments, SMH article in 2009 “Criminal DNA tests being checked in NSW”, revealed a wrongful conviction because of handling error. This article, suggest arguments that police cannot rely of the discretion of this DNA evidence. Also within the criminal trial process, are the defences to criminal charges. It is the discretion of the individual, which is represent in the case of “R vs Porter 1936”, where Porter used the defence of insanity for the murder he committed. This type of individual discretion allows the chance for the individual to be actively involved within the trial process. Sentencing and punishment, has actively involved the discretion of judges and magistrates through the factors affecting a sentencing decision. The judiciary punish offenders within the guidelines set by the Crimes (Sentencing Procedure) Act 1999 (NSW). The Article “Die in Jail: Carr’s new sentences” outlines how new laws will now retain judges discretion to impose a penalty below the minimum standard, but Judges must give explanation for their decision. Under this law Judges must give the minimum prison sentence, unless there are mitigating factors. The objectives of sentencing and punishment aim for protection, rehabilitation and deterrence. It is when considering post-sentencing considerations that again judicial discretion is involved. Commonly the system fails to look at the considerations of the victims, the 2010 article “Victims must be heard in sentencing” by the Attorney General, John Hatzistergos explains the importance of hearing the victims review of the

effectiveness of sentencing and punishment. It emphasises that in order for judiciary to use their discretion to bring justice, they must implement appropriate procedures into post-sentencing considerations....