The Two Tiers of Justice

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 142-166.

The Structure of the Criminal Courts System

[1] In the criminal courts system, there is a division between the lower criminal courts (the Local Courts, Children’s Courts and Coroner’s Courts) and the higher criminal courts (the District Court and the Supreme Court).

  • The lower criminal courts handle the vast bulk of cases (approximately 97.5%).
  • The higher courts only dispose of a small number of the cases (approximately 2.5%)
  • In 2008-2009, the High Court granted 24 special leave to appeal applications from the NSW Supreme Court.
  • As such, there may be danger in regarding appellate court decisions as declaratory and representative of the criminal law in Australia.

Magistrates and Local Courts

[2] Magistrates have a long history of significance as agents of the government and the state. In England under the Tudor and Stuart monarchs, magistrates developed considerable authority especially in rural areas, where they were the main agents of the government.

  • The First Charter of Justice for NSW in 1787 provided justices with similar authority in NSW.
  • We have developed a paid magistrate system in NSW, indicative of a trend towards a salaried and tenured magistracy across Australian jurisdictions.
  • Contrast to the lay magistrates (Justice of the Peace) with no legal knowledge, which are still found in some parts of the UK.

The role of the Local Court in criminal matters has increased significantly this century, with the rapid expansion in summary jurisdiction and the downward classification of many indictable offences so they become triable summarily. In addition, magistrates in Local Courts can now accumulate sentences more than once to a total of 5 years (as opposed to 3 yrs before).

  • In other words, more and more offences are being 'pushed down' to the lower courts so they can be dispatched quicker (without a jury etc).
  • The 'hybrid' offences were introduced in the Criminal Procedure Amendment (Indictable Offences) Act 1995.
  • The general jurisdiction of the Local Court is outlined in the Local Court Act 2007 (NSW), as well as other statutes such as the Crimes Act 1900 (NSW).


A committal hearing is a form of preliminary hearing whereby the magistrate determines if there is sufficient evidence etc for an indictable offence to be committed for trial before a District or Supreme Court. They are conducted in the lower court, before a magistrate.

  • It is intended to act as a filter for weak cases. In 2009, approximately 10% of those who were committed to trial had their cases discharged on committal.

Committal hearings are governed by the Criminal Procedure Act 1986 (NSW), Divison 2. Magistrates are required to conduct a two step process in establishing whether there is sufficient evidence to commit the accused for trial:

  1. s 62 (1) requires a determination whether the evidence produced by the prosecution 'is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence' (ie whether a jury could convict).
    • If magistrate determines that prosecution evidence is not capable of this, they must discharge the accused.[3]
    • If they decide that the evidence is capable of satisfying a jury, the process continues and the defendant is asked if they wish to make a statement or call any evidence and, if they do, it is taken down in writing.[4]
  2. Now, the magistrate is to consider all evidence by prosecution and defence,[5] and either commit[6] or discharge[7] the trial according to whether 'there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence'.

The functions of committals are:

  1. Eliminating weak cases.
  2. Disclosing the prosecution case.
  3. Identifying guilty please early in the prosecution process.
  4. Rehearsing the case and clarifying the issues.

Difference Between Summary and Indictable Offences

Summary offences are heard before a magistrate in the Local Court, while indictable offences are heard in the higher courts.

  • Indictable offences cannot be heard in the absence of the defendant (eg if they escape etc, they must be found). However, in the Local Court, offences can be heard and the defendant convicted even in their absence (known as 'Ex parte' - 'in the absence of a party').
  • Indictment is brought by the Crown (represented by the DPP) against the accused. On the other hand, summary offences are prosecuted by the Police (in their own capacity).

Supreme and District Courts

[8] The Supreme Court exercises an original jurisdiction (a single judge) and an appellate jurisdiction exercised by the Court of Criminal Appeal (three or more judges of the Supreme Court) under s 3 of the Criminal Appeal Act 1912 (NSW).

The Supreme Court and the District Court (created under the District Court Act 1973 (NSW)) have broadly concurrent jurisdictions.

  • Judges of the District Court (a single judge, generally with a jury present) now preside over nearly all serious criminal offences apart from murder, which is tried in the Common Law Division of the Supreme Court.
    • Note: offences that carry life imprisonment (eg murder, aggravated sexual assault in company, and terrorism) must be tried in the Supreme Court.

In both Supreme and District Courts, the accused may elect for trial by judge alone (no jury) in certain circumstances.[9]

The Appellate Jurisdiction of the Higher Courts

[10] The general structure of the criminal appeal system in NSW is as follows:

  • From the Local Court to the District Court.
  • From the Local Court to the Supreme Court.
  • From the District and Supreme Courts to the Court of Criminal Appeal by way of the Criminal Appeal Act 1912 (NSW).
  • From the Court of Criminal Appeal to the High Court by way of application for special leave against both or either conviction and sentence.

Appeal from Local Court to the District Court

[11] Appeal from the Local Court to District Court is governed by the Crimes (Appeal and Review) Act 2001 (NSW) (CARA).

  • s 11 (1) provides the defendant with an appeal as of right against conviction or sentence.
    • The appeal may be an 'all-grounds' appeal (both conviction and sentence), or simply either one of conviction or sentence.
    • Notice of appeal must generally be lodged within 28 days of the conviction or order.[12]
    • The execution of the sentence is stayed by the lodgement of a notice of appeal, unless the defendant is in custody when the appeal is lodged.[13]
  • s 23 provides for appeals against sentence by the prosecution.

Appeals to the District Court are heard by a single judge, and (since 1999) are not conducted de novo (ie, the trial does not start again, rather the new judge considers the transcripts of evidence given in the Local Court).[14] The District Court judge may, under s 20:

  • Confirm or set aside the conviction or sentence.
  • Dismiss the appeal.
  • Vary the sentence.

Appeals from Local Court to the Supreme Court

[15] The appeal from the Local to the District Court (see above) is the standard avenue of appeal. However, there is also a right of appeal to the Supreme Court against conviction or sentence on a ground involving:

  • A question of law alone.[16]
  • a question of fact or a mixed question of law and fact requires leave.[17]

The prosecution also has this right of appeal. The Supreme Court may:

  • Set aside the conviction or sentence.
  • Dismiss the appeal.
  • Vary the sentence (Only downward on a defence appeal).

Appeal from the District or Supreme Court to the Court of Criminal Appeal

[18] As under the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal (CCA) hears appeals against either or both conviction or sentence, in indictable matters heard before a single judge and jury in the District or Supreme Courts.

  • In the CCA, generally three judges hear an appeal or application.
  • The Court of Criminal Appeal has only those powers granted to it by statute, unlike the Supreme Court which has a range of inherent powers.
  • The CCA is not bound by its previous decisions[19] but will only depart from them with caution and when justice requires it.[20]

According to s 5 of the Criminal Appeal Act only a question of law (ie, a conviction) grounds a 'right' of appeal, whereas an appeal on a fact or sentence requires leave.

  • s 5AA provides an appeal in criminal cases with the Supreme Court in its summary jurisdiction.
  • There is no general rights of prosecution appeal against an acquittal (double jeopardy rule), but there are a few limited avenues of Crown appeal whereby questions of law of general importance may be submitted to the CCA. The outcome does not affect the verdict in the case.
  • s 5C provides an avenue of appeal by the Attorney-General or DPP to the CAA where the Supreme Court or District Court has quashed or stayed any information or indictment.
  • s 5D provides the Crown a full ground appeal against sentence as of right.
  • s 5DA provides for a Crown appeal against a reduced sentence for assistance to authorities and s 5F provides for an appeal against pre-trial interlocutory judgments.

Determination of Appeals by the CCA

s 6 of the Criminal Appeal Act provides that on an appeal under s 5 (1) against conviction, the CCA will allow the appeal where there is a (substantial) miscarriage of justice, and dismiss if 'no substantial miscarriage of justice has actually occurred'.

  • Appeals against conviction on indictment before a District or Supreme Court judge and jury are couched in terms of errors of law.
  • These arise mainly from the trial judges summing up, directions to the jury, and the exercise of discretions and rulings on the admissibility of evidence.
  • Generally, there is no appeal for wrongful exercise of judicial discretion unless it is of the opinion that the decision was manifestly erroneous, founded on a wrong principle, and has in fact operated unjustly.

In Mraz, the court made interpreted s 6 (1) as follows:[21]

  • The proviso of s 6(1) of Criminal Appeal Act does not mean that a convicted person on appeal must show that he ought not to have been convicted of anything.
  • It should be read that every accused person is entitled to a trial which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.
  • Any failure here is a miscarriage of justice, as the appellant loses a chance of being acquitted.

Appeals to the High Court

[22] s 35 (1) of the Judiciary Act 1903 (Cth) gives the High Court jurisdiction 'to hear and determine appeals from judgments of the Supreme Court of a State' or 'any other court of a State exercising federal jurisdiction'.

  • s 35(2) provides that an appeal 'shall not be brought from a judgment' unless the High Court gives special leave to appeal.

Criteria for granting special leave to appeal set out in s 35A which provides that the High Court:

  • May have regard to any matters that it considers relevant but shall have regard to-
    • (a) Whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law
      • That is of public importance
      • Whereby differences of opinion between different courts, or within the one court, as to the state of the law must be resolved.
    • (b) Whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

It is very rare for the High Court to grant special leave to appeal from a single judge of a State Supreme Court. Few criminal cases reach the High Court.

Crown appeals

[23] There is no general right of prosecution appeal against an acquittal or finding of not guilty, as this would infringe the rule against double jeopardy.

  • Double jeopardy – the principle that no person should be twice placed in jeopardy of conviction or punishment for the same offence. This gives rise to a number of criminal procedure rules such as the role that once convicted or acquitted, an accused person is immune from further prosecution for the same/different offence covering the same factual elements.[24]
  • This rule seeks to prevent the abuse of power by the executive, and ensure that the power to prosecute is not used as an instrument of oppression.

However, the double jeopardy rule was criticised for preventing an accused person from being retried when new evidence comes to light, even in cases of serious offences such as murder etc.

  • As a result, a number of legislative exceptions to the double jeopardy rule were introduced by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), which introduced a new Part 8 into CARA. The most relevant sections are ss 100-108, in particular:
    • s 100 - CCA may order retrial if there is fresh and compelling new evidence.
      • Only where the acquitted is to be tried for a life sentence offence.
      • 'Fresh' and 'compelling' defined in s 102.
    • s 101 - CCA may order retrial if there was a tainted acquittal.
      • Only where the acquitted is to be tried for 15 yrs or more.
      • 'Tainted acquittal' defined in s 103, where it is related to jury tampering.
    • s 107 - Directed jury acquittals (jury acquits a person at the direction of the judge) or acquittals in trials without juries ( Judge in the higher courts tries an indictable offence without a jury).
      • Appeal as of right to the CCA is given to the prosecution on a question of law in these circumstances.
        • Especially suggests that there is no trust in a judge acting alone, with parallels evident to right of appeal granted from Lower Court to District Court..
        • If appeal is allowed, then the matter is remitted for a new trial.

There are also some limited avenues by which the Crown can take points of law to higher courts. Crown appeals against sentence have long been available on any sentence imposed in the higher courts.

  • s 5D of the Criminal Appeal Act provides a full appeal as of right against sentence.
  • However, a Crown appeal is seen as a rarity and only for 'reasons of great public importance' and where the incorrectness of the first instance sentence is 'manifest'.[25]

McBarnet’s Two Tiers of Justice

[26] McBarnet draws a major distinction between the lower and higher courts, whereby the operation of summary justice is depicted as outside the strictures of due process and the legal ideology:[27]

  • Due process was and is ruled out of the lower courts as unnecessary on two grounds:
    • First, both the offences and the penalties are too trivial;
    • Second, the issues and processes are such that the particulars of law and lawyers and irrelevant.
  • The Ideology of Triviality:
    • The idea that the local courts are relatively trivial is shared by the press (who rarely report local court matters).
    • The consequence of this perceived triviality is the removal of due process (the idea that the administration of justice should be public).
    • The lack of due process is 'legitimised' by the fact that the magistrate can only give relatively trivial penalties (comparatively to the higher courts) and thus has less of an ability to interfere with one's liberty (ie, there is an assertion here that the less ones liberty is at risk, the less one needs protection).
    • However, due process of law is required in the ideology of democratic justice. There is no reason why a person who committed a lesser offence should receive less due process/protection.
    • Additionally, the triviality of the lower courts is an interpretation and not a fact. The work of the lower courts could be viewed quite differently - offences and penalties may seem trivial from the outside but far from trivial from the perspective of the accused.
    • They are too trivial to interest the public but not too trivial for the state to prosecute in the name of the public; too trivial to merit due process of law but not too trivial for the intervention of the law. The ideology of triviality focuses on the offences and penalties, not on the question of prosecution itself.
    • In short, it is exactly in the area of minor offences that the operation of the law, in terms of democratic justice, becomes most suspect. But, contemporary official discourse is more concerned with the quantity of crime than the quality of justice, and the lower courts remain something to be laughed at or yawned over for the pettiness of their crimes, not watched for the marginality of their legality.
  • Legal Relevance:
    • The second justification for reducing the strictures of due process is that the offences dealt with in the lower courts do not involve much law or require much legal expertise or advocacy: 'the large majority of cases are straightforward and the facts are uncomplicated and clear cut'.
    • But this view of the lower court is inaccurate, in 2 ways:
      1. Empirical study shows that lower courts are permeated by legalistic and professional consciousness.
      2. It is logically confused - it confuses cause and effect.
    • It might just as readily be argued that minor offences are characterised by simple facts and straightforward cases because lawyers are so rarely involved.
    • The 'case' is a construct from an event, not a reproduction of it. Since there is barely any lawyers in the local court to formulate an appeal on a point of law, there is consequently little opportunity to develop difficult and complex case law on minor offences.
    • It is not the nature of crime (eg, murder as opposed to burglary), but nature of procedure (eg, supreme as opposed to local court) which 'complicates' a case.
    • Trial by indictment takes longer than summary trial even for a case of similar gravity and complexity.
    • The facts of summary cases may not be simple because of the nature of the offence but because of the lack of professional expertise in manipulation of the rules, persuasive presentation of ones own case and destructive cross-examination of the other side’s. It is not that complex facts need lawyers, but that lawyers can make 'facts' complex.
  • The Accomplishments:
    • Legal policy has established two tiers of justice.
      1. The higher courts are for public consumption, the arena where the ideology of justice is put on display.
      2. The lower courts are deliberately structured in defiance of the ideology of justice, is concerned less with subtle ideological messages than with direct control.
    • It is closeted from the public eye by the ideology of triviality, so the higher courts alone feed into the public image of what the law does and how it operates.
    • But only 2% of cases pass through higher courts, and thus the majority pass in the lower courts, without traditional due process.
    • The majority becomes the exception to the rule of 'real law' and the working of the law comes to be typified not by its routine nature, but by its atypical, indeed exceptional, High Court form.

Contemporary Australian Research

[28] While McBarnet’s views may not completely correspond with the Australian context, many of her observations are supported by contemporary Australian research.

This is illustrated by Mack and Anleu:[29]

  • In the local courts, a massive amount of cases are just scheduled for the same time (start of the day) and the court goes through them throughout the day. There is no estimates of how long each matter will take and not even an attempt to make a general time allocation.
  • Due to time pressures and disorganisation of court proceedings, court users must endure 'interminable waiting', which is a hallmark of the 'welfare poor' experience when dealing with public institutions.
  • The primary objective is time management and 'getting through the list' for that day. This is achieved by having the shortest matters heard first, to reduce the amount of time people must spend waiting. However, as a result of the volume of cases in the criminal list and their unpredictability, magistrates are required to make many different decisions very rapidly.
  • There is often a considerable discrepancy between the number of cases listed for a day's session and the number of matters actually dealt with by the court in which they are originally listed.
  • Although magistrates must and do engage actively in time management in the criminal list, this responsibility conflicts with the essentially passive nature of the judicial role in an adversary system. By stepping outside that passive role, magistrates not only risk reducing the legitimacy of their judicial authority, they will also confront practical obstacles.

Mack and Anleu also discussed this in another piece:[30]

  • Magistrates value the core legal principle of impartiality, however, being conscious of their time pressures, may adopt differing demeanours towards different court participants.
  • Five types of demeanors:
  1. welcoming or good-natured demeanor
  2. patient or courteous demeanor
  3. routine, businesslike, or impersonal demeanor
  4. impatient, rushed, inconsiderate, or bored demeanor
  5. harsh, condescending, or rude demeanor
  • The consistent display of a predominately impersonal demeanor suggests that magistrates are implicitly adopting an institutional conception of legitimacy that values detachment as the appropriate performance of impartiality.
  • While the routine manner was generally predominant, it was displayed most consistently toward the prosecution. In contrast, magistrates frequently displayed exceptional patience and courtesy toward defendants, and often toward defense representatives.

Staging Magistrates’ Justice: Dramaturgical Analyses

Sociologist Pat Carlen presents the magistrate’s court as a 'celebration of ritual coercion':[31]

  • The magistrates courtroom is designed to be reflective of the triviality of the defendants.
  • Space Dominance - achieved by structural elevation (the magistrate sits raised up from the rest of the court). The defendants and magistrates are set well apart from each other. Difficulties of hearing are common in the magistrates’ courts.
  • Time - during judicial proceedings in magistrate’s courts the timing of events is monopolised by the police. There are many delays in court proceedings, and defendants, which are told to arrive at court at 10am, may wait hours before their cases are ‘called on’.
  • Beyond Absurdity - a court of law, like the theatre, is an area where both social values and the devices employed to choose between them can be studied.
    • Portrayal of an inviolate and necessary justice is aided in the higher courts by rigid rules of ceremony and by the traditional ceremonial costume.
    • In the lower courts, it is different. Magistrates are not bewigged and enrobed; there are very few solicitors to mediate between the accused and their accusers; the daily presence of people whom the police variously call ‘nuts’, ‘drunk’ and ‘rubbish’ lend a farcical, rather than solemn, air to the whole proceedings.
    • Idealistic recognition of the law’s absurdity, however, does not diminish its coercive force.

The degradation of the defendant by the court is also discussed by H Garfinkel, who identifies the characteristics and qualities of the courts that perform the ceremonial ‘stripping of a man of his dignity’ as a prelude to judicial punishment. This degradation and denunciation constitutes a punishment in itself.[32]


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 142-3.
  2. Textbook, pp. 143-5.
  3. Criminal Procedure Act 1986 (NSW), s 62 (2).
  4. Criminal Procedure Act 1986 (NSW), s 63.
  5. Criminal Procedure Act 1986 (NSW), s 64.
  6. Criminal Procedure Act 1986 (NSW), s 65.
  7. Criminal Procedure Act 1986 (NSW), s 66.
  8. Textbook, p. 145.
  9. Criminal Procedure Act 1986 (NSW), ss 16- 17.
  10. Textbook, pp. 145-6.
  11. Textbook, p. 146.
  12. Crimes (Appeal and Review) Act 2001 (NSW), s 11 (2).
  13. Crimes (Appeal and Review) Act 2001 (NSW), s 63.
  14. s 18 (1).
  15. Textbook, pp. 146-7.
  16. Crimes (Appeal and Review) Act 2001 (NSW), s 52.
  17. Crimes (Appeal and Review) Act 2001 (NSW), s 53.
  18. Textbook, pp. 147-8.
  19. Johns [1978] 2 NSWLR 259.
  20. Mai (1992) 26 NSWLR 371.
  21. (1955) 224 CLR 300.
  22. Textbook, pp. 149-50.
  23. Textbook, pp. 150-4.
  24. R v Carroll (2002) 213 CLR 635.
  25. Griffiths (1977) 137 CLR 293.
  26. Textbook, p. 154.
  27. Doreen McBarnet, Conviction, (1981) in Textbook, pp. 154-7.
  28. Textbook, p. 157.
  29. Kathy Mack and Sharyn Roach Anleu, 'Getting through the List: Judgecraft and Legitimacy in the Lower Courts', (2007) 16 Social Legal Studies 341 in Textbook, pp. 157-8.
  30. Kathy Mack and Sharyn Roach Anleu, ‘Performing Impartiality: Judicial Demeanor and Legitimacy’ (2010) 35 Law and Social Inquiry 137 in Textbook, pp. 159-62.
  31. Pat Carlen, Magistrates Justice, (1976) in Textbook, pp. 162-5.
  32. Harold Garfinkel, ‘Conditions of Successful Degradation Ceremonies’, (1965) 61 American Journal of Sociology 420 in Textbook, pp. 165-6.
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