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Introduction
Due process of law is generally understood as the principle of which government must respect all of a persons legal rights. This means that preference for some rights or most of those legal rights should be avoided especially when the government deprives a person of life, liberty, or property. In some countries, this principle allows individuals the ability to enforce their rights against violations by governments. In addition, due process has been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges to guarantee fundamental fairness, justice, and liberty.
This paper shall try to examine due process rights in Australia. It will also consider what factors can impede the realisation of these rights and what can be done to ensure victims and defendants rights are protected.
Discussion
Australia has a common law type of legal system that incorporated many of the values, principles, procedures, and rules initially developed in England of which measures safeguard the rights of the accused. This includes the presumption of innocence until proven guilty (White and Perrone, 2005).
Potas (1996) observed that criminal courts are open to the public but that only a few take time to reflect upon the nature of judicial proceedings. Some of them actually express strong views about the lack of fairness or efficacy in the judicial system or leniency of sentences imposed by courts. It could be that this group of people have unrealistic and high expectations on criminal courts to control human behaviour and reduce crimes. Potas further noted sensational crimes of which not only are the suspects, victims, their legal representatives and the courts were involved but the media or journalists who may at most provide their own opinions and observations of which a case literally becomes a soap opera of sorts.
While crime statistics indicate a low rate on violent crimes, a research conducted amongst 1,293 respondents in New South Wales had almost half of the respondents fear of becoming a victim of violent crime (Morris, 1994). On the other hand, it is suggested that the legal system emphasises civil liberties to protect individuals from wrongful accusations and conviction, thus, the presumption of innocence to all accused persons (Potas, 1996). In this instance, due process of law is observed. It is not enough that a person is accused, but must be formally found and declared as guilty after due process of law.
The procedures for investigating, interrogating, detaining and charging suspected offenders are carefully laid down in legislation, in case law and in general instructions promulgated by the various State and Territory police commissioners, Potas wrote (1996, p 381) in addition to the courts observing standard procedures for the conduct of criminal proceedings.
What determines the issue of criminal responsibility?
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Primary or substantive elements of the offence where offence is defined.
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Secondary or procedural requirements where rules governing the process testing the criminality of accusations.
Under the procedural rules, formal determination of guilt is made to ensure the victims and defendants rights are protected. It allows for the consistent approach in decision making, application of the principles of natural justice that affords the accused adequate notice of the case against him or her, and an automatic right to be heard. Consequently, rules also apply on what evidences are accepted or how evidence should be presented as much as procedures are also followed starting from investigation through the verdict and final disposition of the case.
Citizens are protected against the abuse of power on the part of authorities where alleged offenders are treated fairly and humanely. The mistreated citizen can lodge a complaint against the police or bring a legal action against a member or against the whole police department of which when determined, they may be reprimanded or disciplined. Procedural rules ensure that the accused be heard fairly and justice is done (Potas, 1996).
Unlike the nature of civil proceedings, criminal trial is a contest between the executive arm of the government represented in most instances by the police prosecutor, the Crown or the Director of Public Prosecutions on behalf of the Crown against the accused. It is not a contest between the victim and the accused but a system that allows the accused to defend himself or herself of the alleged crime committed. The prosecution will prove all the elements of mental and physical which constitute the offence and the accused is permitted to defend himself or herself against the accusation.
One feature of this process is the right to examine and cross-examine witnesses of which counsel from both countries received training in the art of interrogating witnesses. When decision is made, a corresponding penalty or sentence is applied as determined by the court (Potas, 1996).
Factors that impede the rights of accused or the victim:
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Lack of evidence that may lead to a fair decision
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Failure of the prosecutor to gather incriminating data
The High Court has noted, however that:
The troublesome nature of the sentencing discretion arises in large measure from the unavoidable difficulty in giving weight to each of [the various] purposes of punishment& The purposes overlap and none of them can be considered in isolation from the others, when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometime they point in different directions. (Veen, 1988)
Conclusion
As much as crime is viewed negative in all aspects, this does not place a total control and assumption on who is perceived as the perpetrator of crimes. As much as mistakes may be taken in as a regular human activity, such may be considered even in the commission of what is perceived as crime and the allegation of one person as a criminal.
In this instance, all individuals are spared of the label criminal unless proven so in the courts of law.
As already discussed, several considerations apply prior to serving justice to both suspect and victim of a crime. While the victim may be left as the observer, the Australian governments arm serve as the contender against the alleged criminal but the label remains as suspect until the court declares so.
This is the due process of law: the inalienable right of the individual to remain innocent until proven guilty. The processes of law and justice were developed in such a way to protect all citizens of the land and therefore, the government is mandated to enact and do its duty as such. Otherwise, impediments to justice may prevail taking away precious life, rights or dignity from whoever may have been bestowed of it, who is the citizen of Australia.
Reference
Henning, T and Warner, K 2006 The Criminal Process and Sentencing in A Goldsmith, M Israel and K Daly (eds.) Crime and Justice: A Guide to Criminology, 3rd edn., The Lawbook Company, Sydney. pp 305-328.
Morris, L. (1994). Fear of murder is rife, survey reports, The Sydney Morning Herald.
Potas, I 1996 Courts and Sentencing in K Hazlehurst (ed.) Crime and Justice: An Australian Textbook in Criminology, LBC Information Services, North Ryde, pp 377-396.
Veen (No 2) (1988). 164 CLR 245 per Mason CJ, Brennan, Dawson and Toohey JJ.
White, R and Perrone, S 2005 Law, Courts and the Legal Profession Crime and Social Control, 2nd ed, Oxford University Press, South Melbourne.
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