Activity 1e

Question 1

The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the criminal justice system to achieve the principles of justice requires students to write about relevant strengths and weaknesses. For this activity, students should aim to cover the standard of proof.

A discussion may include the following points:

• The accused cannot be held responsible for a wrongdoing if there is only flimsy evidence against them – this contributes to the fairness of the prosecution, because it would be unfair to prosecute someone if there was little to no evidence justifying it and they were sure to be found not guilty at the end.

However, the standard ‘beyond reasonable doubt’ asks the judge or jury to consider subjective elements when reaching a verdict: what does that individual consider ‘reasonable’? Individual biases can come into play, and what might be considered reasonable in relation to one defendant may not be the same in relation to another – this does not achieve fairness (or equality).

• It is much harder to prove a negative than a positive – this means it will be easier for the prosecution to find positive evidence of the accused person’s guilt than it will be for the accused person to find evidence of their own lack of guilt – the high standard of proof works to equalise this situation. For example, if the accused was at the crime scene they may have been seen there; their car may have been captured on security camera; they may have left biological materials there; and so on. If the accused was not at the crime scene, unless they have positive evidence of an alibi, it is almost impossible for them to prove they weren’t there, because a lack of evidence is not the same as evidence. Criminal cases have serious consequences attached to them, and they are also subject to a very high standard of proof: beyond reasonable doubt – this is only fair, because a person’s freedom may be on the line. Furthermore, the standard ‘beyond reasonable doubt’ asks judges and juries to use their common sense and subjective judgment – the law is not fair when applied too technically or rigidly, because context is important and technical application creates loopholes – using judgment can therefore increase fairness.

However, juries may interpret the standard of proof differently in each case – this means there is not truly one consistent standard applied to all prosecutions and it is difficult to argue that the standard is strict and objective, and that every defendant is equal in the trial process. For example, judges under traditional common law have been prohibited from explaining to the jury what ‘beyond reasonable doubt’ means. This was changed in Victoria in the 2013 Jury Directions Act, which allowed judges to give a limited explanation. The suggested explanation is that an “unrealistic possibility” will not constitute reasonable doubt, though; this may not provide juries with much additional help. Studies from the United Kingdom, New Zealand, Queensland and New South Wales all show consistently that jurors have difficulty with the concept of ‘beyond reasonable doubt’ and fail to apply it consistently or interpret it in the same way – this makes defendants in different cases unequal to each other in terms of how they are treated, and does not give them the same access to justice.

Question 2

The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the standard of proof, that the criminal justice system does achieve the principles of justice. In this case, ‘evaluating’ the ability of the criminal justice system to achieve the principles of justice requires students to write about relevant strengths and weaknesses.

An evaluation may include the following points:

• The accused cannot be held responsible for a wrongdoing if there is only flimsy evidence against them – this contributes to the fairness of the prosecution, because it would be unfair to prosecute someone if there was little to no evidence justifying it and they were sure to be found not guilty at the end.

However, the standard ‘beyond reasonable doubt’ asks the judge or jury to consider subjective elements when reaching a verdict: what does that individual consider ‘reasonable’? Individual biases can come into play, and what might be considered reasonable in relation to one defendant may not be the same in relation to another – this does not achieve fairness (or equality).

• It is much harder to prove a negative than a positive – this means it will be easier for the prosecution to find positive evidence of the accused person’s guilt than it will be for the accused person to find evidence of their own lack of guilt – the high standard of proof works to equalise this situation. For example, if the accused was at the crime scene they may have been seen there; their car may have been captured on security camera; they may have left biological materials there; and so on. If the accused was not at the crime scene, unless they have positive evidence of an alibi, it is almost impossible for them to prove they weren’t there, because a lack of evidence is not the same as evidence. Criminal cases have serious consequences attached to them, and they are also subject to a very high standard of proof: beyond reasonable doubt – this is only fair, because a person’s freedom may be on the line. Furthermore, the standard ‘beyond reasonable doubt’ asks judges and juries to use their common sense and subjective judgment – the law is not fair when applied too technically or rigidly, because context is important and technical application creates loopholes – using judgment can therefore increase fairness.

However, juries may interpret the standard of proof differently in each case – this means there is not truly one consistent standard applied to all prosecutions and it is difficult to argue that the standard is strict and objective, and that every defendant is equal in the trial process. For example, judges under traditional common law have been prohibited from explaining to the jury what ‘beyond reasonable doubt’ means. This was changed in Victoria in the 2013 Jury Directions Act, which allowed judges to give a limited explanation. The suggested explanation is that an “unrealistic possibility” will not constitute reasonable doubt, though; this may not provide juries with much additional help. Studies from the United Kingdom, New Zealand, Queensland and New South Wales all show consistently that jurors have difficulty with the concept of ‘beyond reasonable doubt’ and fail to apply it consistently or interpret it in the same way – this makes defendants in different cases unequal to each other in terms of how they are treated, and does not give them the same access to justice.