What is the Criminal Justice System?
The criminal justice system is made up of a number of entities. Each plays a different role in a system designed to address the community’s expectation that people who break the law are punished and face appropriate consequences and that victims of crime are treated with respect and sensitivity.
The South Australian Government is committed to a system of adversarial justice. In August 1998 National Legal Aid and the Conference of Australian Directors of Prosecutions developed the Best Practice Model for the Determination of Indictable Charges and described the context of criminal proceedings as follows:
“Criminal procedure is, and should remain, fundamentally accusatorial, that is the State accuses the citizen of a criminal offence and must prove guilt without enforced assistance of the accused. While there is a public interest in improving the efficiency of criminal proceedings by reducing delay and costs, this must proceed in the context of the accusatorial framework.”
When a crime is committed and the alleged offender apprehended, the criminal justice system commences operation. It is a continuum along which the alleged offender will travel, with the point of departure and destination dependent upon their innocence or guilt and the nature of their crime. Along this continuum there are numerous different agencies that play important and varying roles.
South Australia Police
The first interaction that an alleged offender has with the criminal justice system is with South Australia Police (SAPOL). SAPOL officers are tasked with investigating alleged crimes. They gather evidence to identify the alleged offender or offenders. In some cases SAPOL may utilise alternative options such as cautioning a person. Other offences may be expiable. Once there is enough evidence such that the police have reasonable cause to suspect the person committed the crime, police will either:
- arrest and charge the offender with the criminal offence, or
- report the offender for the criminal offence.
When a person is to be brought to court SAPOL decide the charges to be laid against that person. This may later be reviewed by a prosecutor. SAPOL decide whether a person is returned back into the community on bail to await a trial in court, or whether bail is refused (in which case the person remains in custody). A person held in custody can apply to the Magistrates Court for release on bail however a Magistrate may choose to keep them in custody (referred to as remanded in custody). SAPOL continue to collect evidence and support victims and witnesses.
SAPOL officers will prepare a brief for the prosecution. A brief is a collection of documents including details of the alleged offence, the charges laid and the evidence. In court the prosecutors rely on the information in the brief provided to them by SAPOL.
Within SAPOL there are sworn officers who are trained to prosecute offences in the Magistrates Court as well as some matters in the Youth Court. For these cases the brief is provided to the SAPOL prosecutors. For any other matters, it is provided to the Office of the Director of Prosecutions (the ODPP).
The ODPP is an independent statutory body; established under legislation to undertake prosecutions of offences against the laws of South Australia. Generally the ODPP prosecutes the more serious matters in the District Court and the Supreme Court. The ODPP can also prosecute complex or sensitive matters in the Magistrates Court or the Youth Court. The ODPP employs not only lawyers to undertake prosecutions but also witness assistance officers to support victims and witnesses.
Forensic Science South Australia
In many cases, evidence is scientific. Forensic Science South Australia (FSSA), which is part of the Attorney-General’s Department (AGD), provides independent expert scientific opinions and evidence to the justice system in South Australia. This includes conducting post mortem examinations, identification of evidence collected from a crime scene (including DNA), analysing blood and tissue samples to detect drugs and alcohol and examining illicit drugs.
FSSA play a vital role when the evidence that proves that a person committed a crime is scientific. FSSA staff are regularly required to give evidence in court.
Persons accused of a crime often rely on the South Australian Legal Services Commission (the LSC) to defend them in court. Others will engage the services of the private legal profession to represent them in court.
The LSC was established in 1977 under the Legal Services Commission Act 1977 (SA). The LSC aims to increase access to legal services for people who cannot afford to pay for private legal representation. The LSC receives funding from both the South Australian and the Commonwealth Governments to provide legal advice, education and legal representation.
The LSC has in-house criminal lawyers that represent accused persons in all the State courts and in addition, the LSC provides legal aid funding to private practitioners. In 2012-13, there were 11,963 grants of legal aid in criminal law matters. Private practitioners performed 67% of legal aid grants in criminal law matters and the remaining 33% was dealt with by in-house lawyers.
Types of Offences
For an accused person charged with a criminal offence the next step is going to court.
Summary offences are heard in the Magistrate Court before a Magistrate. There are no juries and Magistrates decide cases.
If an offence is not a summary offence it is called an indictable offence. There are major and minor indictable offences.
Major indictable offences such as murder, manslaughter and serious sexual offences are heard in the superior courts; the District or the Supreme Court. Murder is always heard in the Supreme Court.
Minor indictable offences are heard in the Magistrates Court, unless the accused person chooses to have it dealt with in a superior court.
How a person progresses through the criminal justice system will depend on their offence; summary offences and most minor indictable offences will be heard in the Magistrates Court with the trial (and sentencing) being before a Magistrate. Trials for major indictable offences happen in the superior courts, but first need to go through committal proceedings.
Committal proceedings are held in the Magistrates Court and are designed so that the Magistrate can decide whether there is sufficient evidence for a matter to be sent to (referred to as “committed”) to a superior court for trial.
Currently, committal proceedings in the metropolitan areas are conducted by lawyers from the ODPP, whilst in regional areas they are conducted by police prosecutors. Once a matter is committed for trial, certain procedures are followed and a trial date set.
If a defendant pleads guilty a trial is not needed. At trial the prosecution has to present evidence to prove that the accused person is guilty of the offence or offences charged, beyond reasonable doubt.
In the superior courts, unless an accused person elects to have a trial in front a judge alone (referred to as a “judge alone” trial), guilt is determined by a jury.
If the accused is found guilty, then at a later time they will be sentenced by a Judge or a Magistrate once the prosecution and the defence have had the chance to make submissions on the appropriate sentence.
If the accused is found not guilty, they are free to go.
The Judges of the superior courts and the Magistrates are referred to as the judiciary It is a cornerstone of our justice system that the judiciary are independent of the Government. Views vary as to exact scope of this independence, however the Government is committed to ensuring that “judicial independence” is not compromised in any reform to the criminal justice system.
The court system in South Australia is administered by a separate entity called the Courts Administration Authority (CAA). The CAA is established under the Courts Administration Act 1993 (SA) and is independent of Government. Through the CAA, the judiciary in South Australia control the provision of the administrative facilities and services to the State courts. The CAA is not subject to direction by the Executive Government, even in matters of procurement and administration.
Once a person is sentenced, the administration of that sentence is the responsibility of the Department for Correctional Services (DCS). DCS strives to make the community safer by protecting the public and reducing re-offending through the safe, secure and humane management of offenders and the provision of rehabilitation and reintegration.
DCS administers our prisons and delivers programs and services to offenders in prison, with the aim of reducing the likelihood that an offender will commit further crimes. Sometimes an offender receives a penalty other than imprisonment, such as a good behaviour bond. Other times a prison sentence may be suspended and the person released on a good behaviour bond.
Such community based sentences usually include conditions that the offender must comply with, for example, a condition to attend a treatment program or to live at a certain address. Some offenders are also released from prison on conditions, for example, on parole or on a home detention program. DCS is responsible for supervising these offenders in the community.
For most offenders who have been imprisoned for less than five years and a non-parole period has been fixed, release on parole happens automatically, subject to some exceptions. Other offenders must apply to the Parole Board to be released on parole.
The Parole Board was first established 1970 and is an independent statutory body (under the Correctional Services Act 1982 (SA) (the CS Act)). The Parole Board has nine members and decides whether a prisoner should be released on parole and if so, under what conditions. If a person breaches a condition of their parole, the Parole Board decides whether parole should be revoked and the person returned to prison.
To make such decisions, the Parole Board must assess risk. The paramount consideration of the Board when deciding an application for parole is the safety of the community.
Once a person has served their sentence, whether in prison or in the community, their time on the continuum ends, or should end. In some cases a person may re-offend or be charged with another offence (for example, one that occurred prior to being sentenced). In some cases an offender could be charged with new offences whilst the criminal justice system is addressing other offences.
In the Strategic Overview we discuss recidivism rates, and the importance of reducing these rates. Recidivism rates are the percentage of offenders who return to correctional services within two years of being discharged. To reduce crime rates and to enhance community protection and confidence, the recidivism rate needs to decline.
There is an important role played in the criminal justice system by the Department for Communities and Social Inclusion (DCSI). DCSI is responsible for Youth Justice.
Youth Justice runs the Adelaide Youth Training Centre (AYTC) designed to provide a safe and secure environment for young people detained in custody. In addition, Community Youth Justice manages young people serving long term custodial orders and young people on community based youth justice orders.
Youth Justice seeks to contribute to a safer South Australia by supporting children and young people to stop re-offending, to recognise the impact of their crime on victims and access opportunities to participate safely and productively in the community.
The Government and Parliament
The Government is responsible for developing and implementing policies and for drafting laws. Parliament is responsible for then making new laws and changing existing laws, referred to as legislation. Members of Parliament who are not in Government can also introduce legislation into Parliament. The South Australian Parliament is made up of two Houses, where the members will debate and discuss Government policy and legislation, as well as current issues. Once a law is made, it is the judiciary who interpret the law.