Australian Legal System Essay

The legal system in Australia aims to protect societal values and standards both between individuals and the state. When dealing with criminal matters, the legal system functions under the pretence to achieve justice and fair outcomes for the parties involved (including offenders). Due to this, the assertion that it [the legal system] focusses on punishing offenders rather than preventing crime is true to the extent that there is significant value placed on discretion in the criminal trial process, leeway given to young offenders, and the way in which the criminal investigation process is conducted (specifically police powers). These aspects of the legal system are exemplified through many contemporary cases – but for this assessment, the following

It allows for cross-examination of evidence presented between the prosecution and defence (adversaries). Although judges when dealing with criminal matters act as independent third parties that simply make a judgement on evidence presented, they still have the ability to enact their own judicial discretion. This refers to the ability for a judge or magistrate to make a decision based upon a range of possibilities on the particular circumstances of a case. In essence, the judge takes into account the mitigating and aggravating factors that can explain or increase respectively the severity of an offence. However much this may allow for alleged offenders to be fairly treated in the trial process, it can be questioned on whether this aspect of the legal system aids in socially preventing crime in contrast to the situational prevention that comes with punishing offenders. The case R v Silva (2015) NSWSC 148 indicates that although judicial discretion was enacted, it can set a precedent that hinders the prevention of crime. 24-year-old Jessica Silva was charged with the manslaughter of her former partner in May of 2012. Under the Crimes (Sentencing Procedures) 1999, Silva was initially sentenced to two years imprisonment with an eighteen-month non-parole period. This sentence was then suspended after Justice Clifton Hoeben concluded that the actions of Ms Silva were resultant not

This indicative by the significant powers that police possess both in the gathering of evidence and arresting individuals. The Law Enforcement (Powers and Responsibilities) Act 2002 NSW describes that police can use whatever force they deem necessary to make an arrest of a reasonably suspected individual. This of course comes with the condition that officers explain why they are arresting an individual, and armed officers stating their intent to use such weapons. Unfortunately, this can lead to situations where there is a misuse or abuse of power which comes as a result of a primary focus on punishing immediate crimes rather than preventing future ones. This is illustrated in a 2012 incident with Robert Curti who died as a result of what the district court described as ‘excessive and unnecessary force’ when attempting to arrest Mr Curti. In March of 2012, Mr Curti was suspected to have administered an LSD-like substance in a restaurant. After suffering adverse reactions to the drug, Mr Curti was involved in a fight in a convenience store. Police then became involved after the incident was wrongly reported as armed robbery. Mr Curti was then tasered eight times and pepper-sprayed before he eventually died. All things considered, this incident displays that the current