Exploring The Role Of Discretion In The Criminal Justice System

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In the criminal justice system, achieving a balance between the rights of victims, offenders, and society is crucial. This balance is maintained through careful handling of both the investigative and trial processes. Central to these processes are the discretion exercised by law enforcement and the use of legal defences.

The fundamental purpose of police powers entails the prevention, detection and investigation of crimes. Police powers aid in protecting society from violent offenders, ensuring the safety of victims and beginning the process of justice for the offender. Discretion is a key component of police powers and has been moderately effective in balancing the rights of victims, offenders and society. Discretion entails the police power …show more content…
The Australian Law Reform Commission states "strict adherence to the letter of the law in many cases would be too harsh", this reiterates the importance of allowing discretion. Arrest is to seize someone and take them into custody, usually in response to the committing of a crime. Under LEPRA police have power to arrest suspects on reasonable grounds, sometimes this power and LEPRA are clearly ignored and discretion is then used inappropriately. This is seen through the inquest into the death of Roberto Curti in 2012. This investigation demonstrates the NSW Police are misusing police powers and failing to adhere to the law of using “Reasonable Force” under LEPRA. After stealing a packet of biscuits from a convenience store, Curti was tasered 14 times by police officers. Through this inquest into his death, the excessive use of force used by the police is highlighted as he was unarmed and did not pose any threat. The excessive use of tasers, administered multiple …show more content…
However, these defences in achieving justice in the criminal trial process are only effective to a certain extent. The defences include both complete defences such as being mentally impaired or acting in self-defence, and partial defences such as provocation. Both defences are both effective and ineffective in achieving justice in the criminal trial process. The complete defence of mental illness within the criminal trial process is used when an offender commits an offence while they are mentally ill, to an extent where they are unable to realise their actions are wrong. These cases of defence however, are not used successfully too often, according to the Australian Bureau of Statistics (2023) on “Criminal Courts, Australia'', only 3% of cases result in a not guilty verdict. The defence of mental illness is provided for under the Mental Illness (Forensic Provisions) Act 1990. If the offender at the time of the offence is mentally ill, the law will not hold them criminally liable. However, this does not mean that the offender gets away with the crime, they are found ‘not guilty’ and may be placed in a mental institution. This case highlights the effectiveness of this complete defence on the grounds of mental illness. It achieves justice in the criminal trial process for both the offender and society. Through this defence, the offender is sent to receive
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