The death penalty in the 19th century in both colonial Australia and Great Britain was widely seen as necessary for punishment and deterrence. However, the prerogrative of mercy served a vital role during this period in mitigating the effects of capital punishment. This article examines the exercise of the death penaly and the prerogrative of mercy in colonial Australia during the period from 1824 to the grant of responsible government in 1856 with respect to bushrangers. Bushrangers despite their often celebrated and even sympathetic status in 'popular culture' were perceived (in official and 'respectable' circles at least) as more than mere colonial criminals and as posing a particular threat to the often tenous stability and even existence of early colonial society. However, even offenders 'beyond the pale' such as bushrangers were not exempted from the benefit of mercy. It is argued that the prerogrative was taken seriously in colonial Australia by the public, the press and notably the authorities to even the worst of capital offenders such as bushrangers. Different conceptions were expressed during the time, ranging from ideas of mercy as based on desert and equity, as something that was predictable and consistent, to ideas of mercy as an undeserved gft. These debates about the prerogrative of mercy articulated different conceptions of law and order, community and justice in an embryonic, self governing society.
{"title":"Bushrangers, the Exercise of Mercy and the 'Last Penalty of the Law' in New South Wales and Tasmania 1824-1856","authors":"D. Plater, P. Crofts","doi":"10.2139/SSRN.2388021","DOIUrl":"https://doi.org/10.2139/SSRN.2388021","url":null,"abstract":"The death penalty in the 19th century in both colonial Australia and Great Britain was widely seen as necessary for punishment and deterrence. However, the prerogrative of mercy served a vital role during this period in mitigating the effects of capital punishment. This article examines the exercise of the death penaly and the prerogrative of mercy in colonial Australia during the period from 1824 to the grant of responsible government in 1856 with respect to bushrangers. Bushrangers despite their often celebrated and even sympathetic status in 'popular culture' were perceived (in official and 'respectable' circles at least) as more than mere colonial criminals and as posing a particular threat to the often tenous stability and even existence of early colonial society. However, even offenders 'beyond the pale' such as bushrangers were not exempted from the benefit of mercy. It is argued that the prerogrative was taken seriously in colonial Australia by the public, the press and notably the authorities to even the worst of capital offenders such as bushrangers. Different conceptions were expressed during the time, ranging from ideas of mercy as based on desert and equity, as something that was predictable and consistent, to ideas of mercy as an undeserved gft. These debates about the prerogrative of mercy articulated different conceptions of law and order, community and justice in an embryonic, self governing society.","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"32 1","pages":"295-343"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The notion of the prosecuting lawyer as the impartial non-partisan 'minister of justice' is entrenched in both England and Australia as the 'silver thread' of the criminal law. However, this article suggests that this acceptance overlooks a number of fundamental questions as to the continued application of the minister of justice role. Sir Patrick Devlin in 1956 warned that a too literal application of this role risked undermining the rationale and operation of the adversarial criminal trial. Devlin's concern remains pertinent today. The adversarial criminal trial remains the method by which common law criminal justice systems 'do justice'.The rationale of the adversarial criminal trial is that both prosecution and defense should discharge their respective roles with vigour and to the best of their ability to ensure that a trial has the greatest chance of being fair for all parties and that justice is done. The original rationale for the minister of justice role in the early 19th century was to compensate for the unequal playing field that typically existed between prosecution and defense in this period. However, the role, born from necessity and good intention, has in latter times not only lost relevance but has, in some respects, overly constrained the prosecutor and risks undermining the modern adversarial criminal trial. The role, created to promote justice, may actually serve to deny justice by rendering prosecutors unable to effectively discharge their functions. Devlin was correct in his analysis of the flaws in the minister of justice role and literal application of this role may prevent the modern prosecutor from acting as an active advocate within an adversarial system. It is contended that ultimately there is an irreconcilable tension between the notion of the prosecution as both zealous advocate and minister of justice and that more than a glib slogan is necessary to define the modern prosecutorial role.
在英国和澳大利亚，作为刑法的“银线”，起诉方律师作为公正的、无党派的“司法部长”的概念根深蒂固。然而，这篇文章表明，这种接受忽略了关于司法部长作用的继续适用的一些基本问题。帕特里克•德夫林爵士(Sir Patrick Devlin)在1956年警告称，过于严格地运用这一角色，可能会破坏对抗性刑事审判的基本原理和运作。德夫林的担忧在今天仍然适用。对抗性刑事审判仍然是普通法刑事司法系统“伸张正义”的方法。对抗性刑事审判的理由是，控方和辩方都应有力地发挥各自的作用，并尽其所能，确保审判有最大的机会对所有当事方公平，正义得到伸张。19世纪初，司法部长这个角色最初的基本原理是为了弥补当时在起诉和辩护之间典型存在的不平等竞争环境。然而，出于必要性和良好意图而产生的这一作用在后来的时代不仅失去了相关性，而且在某些方面过分限制了检察官，并有破坏现代对抗性刑事审判的危险。为促进正义而设立的这一角色实际上可能会使检察官无法有效履行其职责，从而否定正义。德夫林对司法部长角色缺陷的分析是正确的，对这一角色的字面应用可能会阻止现代检察官在对抗制度中充当积极的倡导者。有人认为，检察机关既是热心的辩护人，又是法务部长，这两者之间存在着不可调和的矛盾，而且现代检察机关的作用需要的不仅仅是一个浮夸其谈的口号。
{"title":"Has the 'Silver Thread' of the Criminal Law Lost its Lustre? The Modern Prosecutor as aMinister of Justice","authors":"D. Plater, Lucy Line","doi":"10.2139/SSRN.2358305","DOIUrl":"https://doi.org/10.2139/SSRN.2358305","url":null,"abstract":"The notion of the prosecuting lawyer as the impartial non-partisan 'minister of justice' is entrenched in both England and Australia as the 'silver thread' of the criminal law. However, this article suggests that this acceptance overlooks a number of fundamental questions as to the continued application of the minister of justice role. Sir Patrick Devlin in 1956 warned that a too literal application of this role risked undermining the rationale and operation of the adversarial criminal trial. Devlin's concern remains pertinent today. The adversarial criminal trial remains the method by which common law criminal justice systems 'do justice'.The rationale of the adversarial criminal trial is that both prosecution and defense should discharge their respective roles with vigour and to the best of their ability to ensure that a trial has the greatest chance of being fair for all parties and that justice is done. The original rationale for the minister of justice role in the early 19th century was to compensate for the unequal playing field that typically existed between prosecution and defense in this period. However, the role, born from necessity and good intention, has in latter times not only lost relevance but has, in some respects, overly constrained the prosecutor and risks undermining the modern adversarial criminal trial. The role, created to promote justice, may actually serve to deny justice by rendering prosecutors unable to effectively discharge their functions. Devlin was correct in his analysis of the flaws in the minister of justice role and literal application of this role may prevent the modern prosecutor from acting as an active advocate within an adversarial system. It is contended that ultimately there is an irreconcilable tension between the notion of the prosecution as both zealous advocate and minister of justice and that more than a glib slogan is necessary to define the modern prosecutorial role.","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"31 1","pages":"54"},"PeriodicalIF":0.0,"publicationDate":"2012-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The English notion of the proper prosecutorial role as that of the non-partisan ‘minister of justice’ was expressed in Australia by colonial legal practitioners but in practice the application of this role was to often prove a matter of rhetoric rather than of reality. Prosecutors in practice often acted as zealous and partisan advocates. This article considers the development of the prosecutorial role in Australia from 1824 to the early 20th century and, in particular, the extent to which the minister of justice model was applied in Australia. This article also examines the factors that influenced the perception and performance of the prosecutorial role in Australia. It is suggested that colonial prosecutors in practice were motivated by subjective factors such as the class or race of the accused and the nature of the crime that they were charged with. Prosecutorial zeal appears explicable, not by the tension of acting in an adversarial system, but in confronting defendants who were regarded as ‘criminals of the deepest dye’ who posed a real ‘threat’ to colonial society. Though the minister of justice role was applied in Australia on occasion, it was often reserved for ‘respectable’ defendants and to be the apparent product of class bias rather than genuine prosecutorial restraint. Nevertheless, despite the inconsistent development in Australia of the minister of justice role, as the 19th century progressed, it was increasingly applied as a matter of both rhetoric and reality, reflecting the increasing stability and confidence of the Australian colonies.
{"title":"The development and application in nineteenth century Australia of the prosecutor's role as a minister of justice: rhetoric or reality?","authors":"D. Plater, S. Royan","doi":"10.2139/SSRN.2360934","DOIUrl":"https://doi.org/10.2139/SSRN.2360934","url":null,"abstract":"The English notion of the proper prosecutorial role as that of the non-partisan ‘minister of justice’ was expressed in Australia by colonial legal practitioners but in practice the application of this role was to often prove a matter of rhetoric rather than of reality. Prosecutors in practice often acted as zealous and partisan advocates. This article considers the development of the prosecutorial role in Australia from 1824 to the early 20th century and, in particular, the extent to which the minister of justice model was applied in Australia. This article also examines the factors that influenced the perception and performance of the prosecutorial role in Australia. It is suggested that colonial prosecutors in practice were motivated by subjective factors such as the class or race of the accused and the nature of the crime that they were charged with. Prosecutorial zeal appears explicable, not by the tension of acting in an adversarial system, but in confronting defendants who were regarded as ‘criminals of the deepest dye’ who posed a real ‘threat’ to colonial society. Though the minister of justice role was applied in Australia on occasion, it was often reserved for ‘respectable’ defendants and to be the apparent product of class bias rather than genuine prosecutorial restraint. Nevertheless, despite the inconsistent development in Australia of the minister of justice role, as the 19th century progressed, it was increasingly applied as a matter of both rhetoric and reality, reflecting the increasing stability and confidence of the Australian colonies.","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"31 1","pages":"78-131"},"PeriodicalIF":0.0,"publicationDate":"2011-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecutor bent on securing the conviction of an accused person but rather that of a quasi-judicial 'minister of justice' whose detached function is to seek justice and to ensure fairness. This view of the prosecutor's role can be traced back at least to the early 1800s and continues to command firm support in both Australia and England. In considering the development of the role of the prosecutor it is instructive to consider the crucial function performed by the prosecution in the disclosure of potentially significant material in its possession; whether this is evidence upon which the prosecution is choosing to rely at trial or so-called unused material. In this article I will trace the development of the principles relating to disclosure in both England and Australia from the time when the prosecutor was entitled to act as a partisan advocate to the operation for much of the 20th century of the informal 'Old Boys Act' approach to disclosure to the modern insistence on candour culminating in the landmark decisions in England in the 1990s and of the High Court of Australia in R v Mallard in 2005. The fundamental theme that emerges in relation to the issue of disclosure is that the prosecutor must act as the frank minister of justice. There is no place in the modem criminal process either for the prosecutor to act as the partisan advocate or to rely on the informal 'Gentlemen's Club' approach to disclosure. It is clear that the operation of the law in England regarding disclosure has given rise to significant practical and theoretical problems and that it would therefore be wise to be wary before importing the English model to Australia. However demanding and problematic as the prosecutor's duties of disclosure may be, I would argue that in this area, 'The prosecutor must act as a minister of justice, presenting the prosecution evidence fairly, making full disclosure of relevant material and ever conscious that prosecution must not become persecution.
与普遍的看法相反，检察官的适当作用不是一心想使被告定罪的党派迫害者，而是准司法的“司法部长”，其独立的职能是寻求正义和确保公平。这种关于检察官角色的观点至少可以追溯到19世纪初，并继续在澳大利亚和英国得到坚定的支持。在考虑检察官作用的发展时，考虑控方在披露其所拥有的可能重要的材料方面所发挥的关键作用是有益的;这是控方在审判中选择依赖的证据还是所谓的未使用的材料。在这篇文章中，我将追溯与披露有关的原则在英国和澳大利亚的发展，从检察官有权作为党派倡导者的时候，到20世纪大部分时间里非正式的“老男孩法案”对披露方法的操作，再到现代对坦率的坚持，最终以20世纪90年代英国具有里程碑意义的决定和2005年澳大利亚高等法院的R v Mallard案为高潮。与信息披露问题相关的基本主题是，检察官必须扮演坦率的司法部长的角色。在现代刑事诉讼中，检察官既不能充当党派辩护者，也不能依靠非正式的“绅士俱乐部”方式进行披露。很明显，英国关于披露的法律运作已经引起了重大的实践和理论问题，因此，在将英国模式引入澳大利亚之前保持警惕是明智的。无论检察官的公开义务有多苛刻和问题，我都认为，在这方面，检察官必须像法务部长官一样，公平地提出起诉证据，充分公开相关材料，并始终意识到起诉不能成为迫害。
{"title":"The Development of the Prosecutor's Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?","authors":"D. Plater","doi":"10.2139/SSRN.2360937","DOIUrl":"https://doi.org/10.2139/SSRN.2360937","url":null,"abstract":"The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecutor bent on securing the conviction of an accused person but rather that of a quasi-judicial 'minister of justice' whose detached function is to seek justice and to ensure fairness. This view of the prosecutor's role can be traced back at least to the early 1800s and continues to command firm support in both Australia and England. In considering the development of the role of the prosecutor it is instructive to consider the crucial function performed by the prosecution in the disclosure of potentially significant material in its possession; whether this is evidence upon which the prosecution is choosing to rely at trial or so-called unused material. In this article I will trace the development of the principles relating to disclosure in both England and Australia from the time when the prosecutor was entitled to act as a partisan advocate to the operation for much of the 20th century of the informal 'Old Boys Act' approach to disclosure to the modern insistence on candour culminating in the landmark decisions in England in the 1990s and of the High Court of Australia in R v Mallard in 2005. The fundamental theme that emerges in relation to the issue of disclosure is that the prosecutor must act as the frank minister of justice. There is no place in the modem criminal process either for the prosecutor to act as the partisan advocate or to rely on the informal 'Gentlemen's Club' approach to disclosure. It is clear that the operation of the law in England regarding disclosure has given rise to significant practical and theoretical problems and that it would therefore be wise to be wary before importing the English model to Australia. However demanding and problematic as the prosecutor's duties of disclosure may be, I would argue that in this area, 'The prosecutor must act as a minister of justice, presenting the prosecution evidence fairly, making full disclosure of relevant material and ever conscious that prosecution must not become persecution.","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"25 1","pages":"111-155"},"PeriodicalIF":0.0,"publicationDate":"2009-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2360937","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bridging the Global Divide on Human Rights","authors":"T. Marsh, B. Harris","doi":"10.4324/9781315197166","DOIUrl":"https://doi.org/10.4324/9781315197166","url":null,"abstract":"","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"15 1","pages":"137-142"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70635872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2003-01-01DOI: 10.4324/9780203166215-18
Er Sharp
{"title":"Mediation - Skills and Techniques","authors":"Er Sharp","doi":"10.4324/9780203166215-18","DOIUrl":"https://doi.org/10.4324/9780203166215-18","url":null,"abstract":"","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"21 1","pages":"125-128"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70579286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A human right to reproduce non-coitally? A comment on the Austrian Constitutional Court's judgment of 14 October 1999.","authors":"Erwin Bernat","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83426,"journal":{"name":"University of Tasmania law review","volume":"21 1","pages":"20-38"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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