The Criminal Justice System
Crime: Investigation Process and Bail
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The criminal justice system defines offences, investigates wrongdoing, determines guilt through fair and transparent processes, and imposes proportionate punishment according to law. Each stage, from investigation and arrest, to bail, trial, sentencing, and punishment, must operate lawfully, protect individual rights, and uphold the rule of law by ensuring that state power is exercised fairly, consistently, and with proper safeguards.
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This explainer examines recent debates over Queensland’s bail laws, showing how media‑driven public pressure and concerns about youth crime have prompted proposals that weaken the presumption of innocence and shift the burden of proof onto accused young people. It highlights why reactive reforms risk undermining core rule of law principles and argues for evidence‑based, proportionate responses that target recidivism without eroding fundamental legal protections.
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This explainer outlines how police investigate crime using powers such as search, seizure, arrest, and warrants, while emphasising the legal checks, like reasonable suspicion, oversight bodies, and admissibility rules, that prevent misuse of authority and protect individual rights.
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This explainer outlines how bail protects the presumption of innocence while managing risks to community safety. It explains the purpose of bail, the factors police and courts must consider and how rule‑of‑law principles ensure decisions are fair, transparent and based on evidence rather than public pressure.
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This explainer clarifies the difference between summary and indictable offences and how each type moves through the criminal justice system. It outlines which matters are heard in the Local Court, which proceed to higher courts and how the classification of an offence affects procedure, rights and sentencing.
Crime: Criminal Trial Process
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This explainer outlines how the adversary system structures criminal trials by giving both the prosecution and defence an equal opportunity to present their case before an impartial judge or jury. It highlights how fairness, equality of representation, and judicial impartiality underpin the system, while also noting concerns about resource imbalances and the importance of procedural justice in upholding the rule of law.
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This explainer outlines the main participants in a criminal courtroom and explains how each contributes to a fair and lawful trial. It highlights how impartial judging, the separation of powers, the burden and standard of proof, and the rights of the accused work together to ensure justice is done and seen to be done.
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This explainer outlines how criminal charges are laid and how an accused person may plead guilty or not guilty, shaping whether a matter proceeds to sentencing or to a full trial. It highlights the differences between summary and indictable offences, the role of plea bargaining, and how early guilty pleas can reduce sentences, while not‑guilty pleas require the prosecution to prove the case in court.
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This explainer outlines the prosecution’s duty to prove an accused person’s guilt and explains why juries may only convict if satisfied beyond reasonable doubt. It highlights how this high standard protects the presumption of innocence, prevents wrongful convictions, and ensures that criminal justice operates fairly, transparently, and in line with core rule‑of‑law principles.
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This explainer outlines how evidence is gathered, assessed, and admitted in criminal trials, showing how strict rules ensure only reliable, relevant, and lawfully obtained material is considered by the court. It highlights the different types of evidence, the role of police and prosecutors in preparing a brief of evidence, and how judges and juries evaluate admissibility and weight to protect fairness, prevent wrongful convictions, and uphold due process.
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This explainer outlines the major legal defences an accused person may rely on to avoid or reduce criminal liability, including duress, consent, self‑defence, mental illness, and intoxication. It highlights the strict evidentiary requirements for each defence and shows how they operate to ensure that only morally and legally blameworthy conduct results in conviction, reinforcing fairness and due process in the criminal justice system.
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This explainer outlines the role of juries as impartial fact‑finders who decide guilt or innocence based solely on the evidence presented in court. It highlights how jury service promotes democratic participation, safeguards against arbitrary state power, and ensures that criminal justice outcomes reflect community values, while also acknowledging challenges such as juror bias, media influence, and the complexity of modern trials.
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This explainer outlines the criminal standard of proof and why prosecutors must prove guilt beyond reasonable doubt. It explains how the standard protects the presumption of innocence, what “reasonable doubt” means in practice and how judges direct juries to apply it. The resource highlights the importance of high proof standards in safeguarding fairness and preventing wrongful convictions.
Crime: Sentencing and Punishment
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This explainer outlines how post‑sentence regimes—such as Continuing Detention Orders and Extended Supervision Orders—allow high‑risk offenders to be detained or strictly monitored after completing their custodial sentences. It highlights the significant rule‑of‑law concerns these regimes raise, including retrospective punishment, limits on liberty, the blending of civil and criminal standards, and the challenge of balancing community protection with the rights of offenders, victims, and society.
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This explainer outlines significant reforms to NSW sentencing law, including the replacement of bonds and suspended sentences with new community‑based orders (Conditional Release Orders, Community Correction Orders, and strengthened Intensive Correction Orders). It highlights how these changes aim to improve community safety, streamline guilty‑plea processes, and modernise sentencing options while preserving judicial discretion and ensuring proportionate, evidence‑based penalties.
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Outlines how sentencing depends on judicial independence and careful consideration of the unique facts of each case. Using R v Dowdle, it illustrates why rigid mandatory sentencing rules can produce unjust outcomes and why judges must retain discretion to balance punishment, deterrence, rehabilitation, and the offender’s circumstances.
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This resource explains how mandatory sentencing limits judicial discretion, shifts power to prosecutors, and risks disproportionate punishment. It outlines key rule of law concerns, including separation of powers, reduced fairness, and higher prison populations, while contrasting mandatory minimums with established sentencing purposes and principles that ensure proportional, evidence‑based outcomes.
The Rule of Law and Mandatory Sentencing
The Independence of the Judiciary
The independence of the judiciary is a key principle of the rule of law. For a trial to be fair the judge must be independent and not be swayed by public opinion or the political objectives of a parliament.
The independence of the judiciary is visible in the sentencing process. Parliament legislates the maximum sentence for each crime but the judge decides on the appropriate sentence for each offender according to the law and the facts of the case.
A judge must decide on the appropriate sentence by considering the individual circumstances of the offender, the crime, and any victim/s. The decision of the judge should not be influenced by personal perspectives but should be given according to the law as passed by Parliament.
What is a Sentence?
A sentence is a decision made by a judge to punish a person who has been found guilty of a criminal offence.
A sentence can often involve the offender being held in a prison. This is known as a ‘custodial sentence’ or a ‘sentence of imprisonment’.
What is a Minimum Mandatory Sentence or Minimum Mandatory Non-Parole Period?
A minimum mandatory sentence or minimum mandatory non-parole period is when parliament removes the judge’s discretion and legislates a minimum period of imprisonment as a punishment for an offence. Instead of a judge deciding on a punishment which fits the crime a judge must sentence the offender to at least the minimum mandatory sentence dictated in the legislation.
Mandatory Sentencing and the Rule of Law
The independence of the judiciary is a key principle of the rule of law. The separation of powers is critical between the legislature, which makes the law, the executive and the judiciary which decides legal disputes and for criminal law, imposes punishments. Parliament should not seek to do the work that belongs to the judiciary or to remove or fetter the discretion of the courts.
Objections to Mandatory Sentencing
The Separation of Powers: The legislature (Parliament) which makes the law could be seen to be interfering with the work of the Judiciary (Courts) who decide on legal disputes and impose punishments.
Judicial Discretion Mandatory: sentences either exclude or restrict the operation of judicial discretion and prevent the court from being able to give proper consideration to the individual circumstances of the case.
Increased Role of Prosecutor: Sentencing discretion is transferred from the judge to the police and the prosecutor, whose decisions are not reviewable.
Principles of Sentencing: Mandatory sentences are a blunt instrument. Sentencing principles, are better designed to be able to take individual circumstances into account and may result in more appropriate outcomes as compared to a ‘one size fits all’ approach.
Rehabilitation: Mandatory sentences do not account for the circumstances of the offender. Consequently, they may either prohibit or make it difficult to target more therapeutic approaches to sentencing.
General problems created by Mandatory Sentencing
Reluctance of Juries to Convict Accused: Juries may be reluctant to convict the accused in circumstances where they think the mandatory minimum sentence is too harsh or unjust. This occurred when the mandatory sentence for murder was the death penalty. Juries would convict the accused on manslaughter instead.
Higher rates of refusal of bail: The inevitable prison sentence, determined by the mandatory sentence, increases the incentive to run away. As a result, more bail applications are refused.
Expansion of prison populations: Higher rates of refusal of bail leads to a higher prison population. More offenders will also spend longer in prison due to the mandatory sentence. This has a significant financial cost. Moreover, the underlying causes of criminal behaviour and rehabilitation are better off being addressed early, to prevent reoffending and return to prison.
Less Cooperation with Police: Mandatory sentences deter cooperation with police as no discount can be given for cooperation. This results in fewer guilty pleas and offenders may take any chance to avoid a harsh sentence.
Increase in Sentencing Across the Board: The introduction of mandatory sentences in other common law jurisdictions has led to an increase in sentences across the board, as courts seek to ensure proportionality and consistency in sentencing.
Guidelines for Sentencing
When sentencing an offender judges must take into account both the purposes and principles of sentencing.
Purposes of Sentencing
The Crimes (Sentencing Procedure) Act 1999 (NSW) states the purposes for which a court may impose a sentence on an offender are:
to ensure the offender is adequately punished for the offence,
to prevent crime by deterring the offender and other persons from committing similar offences,
to protect the community from the offender
to promote the rehabilitation of the offender
to make the offender accountable for his or her actions
to denounce the conduct of the offender
to recognise the harm done to the victim of the crime and the community.
Judges provide reasons for sentencing decisions which must be based on the law. Reasons for a sentencing decision are an important part of the checks and balances on the power of judges because reasons allow an appeal court to check the law has been applied correctly.
Principles of Sentencing
In addition to the purposes of sentencing there are principles of sentencing established by common law and legislation that must be applied in every case. Some of these are:
imprisonment only when no other punishment is appropriate
the punishment must fit the crime (proportionality)
similar crimes should receive similar sentences (consistency)
It is the role of the judiciary to determine the appropriate sentence by taking both the purposes of sentencing, the principles of sentencing, and the individual facts of the case into account.
Case Note: R v Garth (No 2) [2017] NSWDC 471
The Facts
On the 2nd of May 2014 in the outer suburbs of Sydney there was a 21st birthday party hosted by Mr Ong.
A number of people attended this party including the offender, Mr Garth - who was the boyfriend of host’s cousin and the deceased Mr Ray Manalad - who was a close friend of the host Mr Ong. Many of the people at the party consumed alcohol, including the offender and the deceased.
Soon after midnight, there was a disagreement between the host and the offender that escalated into yelling and the offender pushing the host of the party in the middle of the chest. Mr Ong tripped over a gutter and fractured his ankle.
Mr Manald intervened and approached the offender with his hands upon and his palms flat - he tried to calm the offender down. The offender punched Mr Manald on the side of his face, he fell over and never regained consciousness. He died the following day from his injuries.
The police conducted a breath analysis of the offender when they arrived which showed a reading of 0.174 and a later blood test found 0.185g of alcohol per 100 mil of blood. In a police interview he stated that he was unable to remember punching Mr Manald. He was charged with a number of offences including affray and common assault in addition to Assault Causing Death with Intoxication.
The Court Case
The case was before His Honour Judge Townsden and a jury in the District Court of NSW. His Honour found the offender guilty beyond reasonable doubt of the offences of common assault and affray.
The jury found him guilty beyond reasonable doubt of the offence assault occasioning death whilst intoxicated.
The Sentencing
Ms Teresit Manalad, the deceased’s mother, provided a Victim Impact Statement to the court. She pointed out that her son was a nurse and was passionate about helping people.
“It was a needless death of an innocent young man” [33]
The Mandatory Minimum Penalty
In his judgment His Honour states:
“The offence of assault occasioning death is objectively serious. Both the minimum and maximum penalties provide a sentencing yardstick. I refer to my earlier decision ...where I held that s 25B of the Crimes Act, which sets out the mandatory minimum penalty, is both constitutionally valid and acts as a yardstick: Garth v R [2017] NSWDC 469.” [42]
“the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person,” [48]
The judge found that the offender intentionally hit Mr Manalad with his closed fist and that although the assault was objectively serious it was spontaneous.
“the assault is not authorised or excused by law, and the assault causes the death of the other person. The offender’s act was not done in self-defence.” [48]
It led to the death of Mr Manalad.
“A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.”
The offender was over the age of 18 yrs and intoxicated when he committed the offence
“There can be no doubt that it is all too common in our community for young men to commit serious acts of violence after having consumed excessive amounts of alcohol. Such conduct must be properly denounced by the Courts, which should impose sentences that would act as a deterrent to others.” [55]
Hugh Garth was sentenced by Judge Townsden to 10 years and 3 months imprisonment with a non parole period of 8 years and 3 months- to reflect the mandatory minimum required by the Crimes Act 1900.
Assault Causing Death
In January 2014 the the Crimes Act 1900 (NSW) was amended to create a new criminal offence called Assault Causing Death.
Assault Causing Death, is defined in ss25A and 25B of the Crimes Act 1900 (NSW).
Crimes Act 1900 (NSW):
Section 25A of the Crimes Act states that a person is guilty of assault causing death if:
a) the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and
b) the assault is not authorised or excused by law, and
c) the assault causes the death of the other person.
A person who is found guilty of Assault Causing Death is subject to a maximum sentence of 20 years imprisonment.
Section 25B of the Crimes Act states if a person is found guilty of Assault Causing Death under Section 25A and they are also over the age of 18 and intoxicated, they will be subject to a maximum sentence of 25 years, and a minimum mandatory sentence of no less than 8 years imprisonment.
To find someone guilty of Assault Causing Death while intoxicated the prosecution must prove the offence beyond a reasonable doubt which involves four essential elements:
Intent to Hit (mens rea): Intent to hit is all that is required for this element of the offence, not intent to kill or injure. It is much easier to establish intent to hit than it is to show intent to kill or injure. Where the ‘hit’ was accidental the mens rea element is not satisfied. For example: it would be very hard to argue that a person who punches someone in the face with a closed fist did not intend to hit them.
The Accused Hit the Victim (actus reus): It must be shown the accused actually hit the other person. What does hitting mean? Hitting the other person with their own body or with an object held by the person is considered hitting.
The Hit led to the Death (causation): Causation, which is the link between the hit and the death can be established by medical evidence, a finding by a court or the NSW Coroner.
Proof of Intoxication: If the accused has a blood alcohol concentration of 0.15 (0.05 is the legal limit for driving a vehicle under the influence in NSW) or has other drugs in their body they can be charged under Section 25B. The accused’s drug/alcohol concentration must be tested at a hospital within six hours of the offence.
Glossary
Mens rea - Latin term meaning “guilty mind” which is an element to be proven in most criminal offences.
Actus reus - Latin term meaning “guilty act” which is an element to be proven in all criminal offences. It involves establishing with evidence that a criminal act has occurred.
Intoxicating substance - s4 of the Crimes Act 1900 (NSW) defines this as a substance, including alcohol or a narcotic drug or any other substance, that affects a person’s senses or understanding.
Murder - causing death where the offender intends to kill or shows reckless indifference to human life.
Manslaughter - in NSW any act of killing that is not murder is manslaughter. There are two types of manslaughter, involuntary and voluntary. Each is different in its requirements, but both require proof of a certain mens rea
Intent - what a person thought or wanted the result of an action to be.
Assault - the act of contact with a person with the intent of harming or recklessly committing unlawful violence.
Mitigating factor - a circumstance in a particular case which would cause the judge to consider a lighter sentence.
Maximum sentence - the highest sentence a judge can give for a criminal offence.
Minimum mandatory sentence - a minimum sentence the judge must give if a person is convicted.
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