Legal studies HSC. effectiveness of the legal system
...right to legal advice. "There is no absolute legal right for an arrested person to have a lawyer present at interrogation, but courts have decided that a lawyer should be allowed to be present if requested by the arrested person and that questioning should be delayed for a reasonable time for him or her to obtain legal advice" This could pose problems as the accused now has additional time to formulate a defence. The Legal Aid Commission was developed to give free legal advice to those who cannot afford an attorney. The Bail Act 1978 was introduced because too many people were being held in custody as they could not afford the money required for deposit as a condition of bail. "The Bail Act introduced a system of bail under which bail may be granted with or without conditions. Where conditional bail is set, conditions of bail, other than the requirement to deposit money, may be imposed" The Crime and Justice Bulletin of BAIL in NSW states that there is a need for the person to be allowed release if they have not been found guilty of a criminal offence. However, it also shapes the communities needs for protection and to ensure the accused does not re-offend. Bail is very important because until the court hearing is over, the defendant is presumed innocent. If a person is remanded in custody, a person is presumed innocent and kept in prison. A person is not guilty of a crime until found guilty by the court so there must be a very good reason not to grant bail. Bail can be granted "either unconditionally. That is, there are no conditions attached or conditionally. For example the defendant must lodge a sum of money…" The conditions of Bail are only imposed if is necessary for the safety of the community. "…the protection and welfare of the community involves consideration of any previous failure by the person to observe a bail condition; the likelihood that the person will interfere with evidence, witnesses or jurors and the likelihood that the person will commit a further offence while at liberty on bail" The community may have a negative response to the proposal of bail and an additional uproar if bail is granted; particularly on a very serious offence charge such as breaking and entering. An example of this is the case of R v WAKEFIELD (1969) 89WN (PT1) (NSW) 325, where Wakefield was denied bail for larceny and breaking and entering as he posed a threat to the community. Bail can be seen as an unequal position as it raises many questions such as; what happens when an innocent being cannot afford to post bail? The wealthy versus the poor has been an ongoing issue in the legal system. More so, in over eighty per cent of criminal cases, the accused pleads guilty to the charge. Sometimes plea bargaining occurs. In plea bargaining the prosecution and defence meet before the trial and the defence agrees that the accused will plead guilty if the prosecution reduces the charge. For example "a person charged with attempted murder agreeing to plead guilty to malicious wounding, which carries a much smaller maximum penalty, in return for the prosecution dropping the attempted murder charge". In Australia. plea bargaining has been viewed as a less favourable practice which is why it is difficult to determine how often it occurs. However, plea bargaining carries its advantages and disadvantages in the legal system. It saves witnesses from the ordeal of giving evidence and being cross-examined and it is effective, quick and inexpensive. Unfortunately, it puts an enormous amount of pressure on the accused to plead guilty to something they may or may not have been found guilty for in a court hearing. The accused may get a higher sentence than he or she really deserves and it is a secretive process and may prevent the court system from operating to achieve justice. "There are many arguments for and against plea bargaining. Those in favour argue that it speeds up the criminal process and results in a much simpler trial than if the accused had pleaded not guilty. Those against the practice argue that reducing the charges means that their is no consideration of the victim…" The community is also effected by plea bargaining as a guilty person could be released, which therefore puts society at fear. The Department of Public Prosecution (DPP) enters the plea bargain and in "some instances, the bargain is arranged without the victims awareness" This therefore raises problems for equality in that two people who commit the same crime may be treated differently if one receives a plea bargain. When it comes to the concerns of the rights for the victim, they may suffer severe mental and physical turmoil after the crime has been committed. The needs of the victim "have largely been ignored in the criminal justice system, though there are some legal provisions to help victims of crime" Victims can gain compensation for damage done to them by the judge hearing the case and then ordering a payment of compensation or the victim can sue the offender for damage in a civil case. The problem with both of these is that many criminal offenders do not have the money to pay for damages so the victim receives nothing. The Victim can apply for compensation from the Victims Compensation Tribunal which was set up by the Victims Compensation Act 1987 (NSW). "The tribunal can award compensation out of public money for personal injury or death to primary victims…the maximum amount that can be paid to a victim of a crime is $50 000 and the minimum is $200." Other victims rights have been neglected in NSW. "Despite the fact that Australia has signed an international code on the rights of victims, most states have not incorporat...