Seven Myths About the Criminal Justice System

Radio shock jocks, newspapers and social media are rich sources of fiction about the criminal justice system.

Here are some of the most popular myths:

1. Juries are more lenient than judges

While the right to a jury trial for cases dealt with on ‘indictment’ (ie District and Supreme Court cases)  is embedded in the constitution, most of the time, having a trial by a ‘judge-alone’ has higher odds of success for defendants.

Don’t believe this? Statistics show that a higher percentage of defendants are acquitted by judges sitting alone than juries.

Judges have a better understanding of the law, the necessary standards of proof, and they have pretty much ‘heard it all’; which often means that they are better at putting aside personal prejudices and focusing on the evidence.

But securing a judge alone trial isn’t always easy; it can only be done if either:

• Both the accused and prosecutor agree to a judge alone trial; or
• The accused person applies to the court and it is determined to be in the interests of justice to have a judge alone trial.

2. Crime is on the rise

With the sensationalist media stories we see and hear every day, we’d be forgiven by believing that crime is on the rise.

But in fact, the majority of major offences in NSW have either dropped or remained stable over the past several years, according to statistics provided by the Bureau of Crime Statistics and Research (BOCSAR).

BOCSAR’s latest statistics, published in September 2015, show that only one of 17 major offence categories had increased: being ‘steal from retail store’.

Murder, on the other hand, is down by 20%, and other major offences such as assault, robbery, break and enter as well as malicious damage have also decreased.

3. Police will ‘help’ you if you do what they say

Many people who are arrested for the first time fall into the trap of thinking that police are on their side, and will ‘go easy’ on them if they ‘cooperate’; in other words, do as police say.

Police will often try to give you legal advice, or tell you that participating in a police interview is in your best interests, or even that you will get a ‘slap on the wrist’ if you plead guilty. They may even persuade you not to see a criminal defence lawyer at all, or steer you towards lawyers who are pushovers or less than competent.

We have been contacted by many clients who, on the advice of police, pleaded guilty and represented themselves in relatively serious cases – including affray and drug supply – and received much more severe penalties than police assured them they would. Many should not have pleaded guilty at all, or should have only pleaded guilty to less serious charges (eg common assault or drug possession).

It is important to remember that police are not on your side, and are not paid to help you out. Their interests are almost always going to be diametrically opposed to yours.

Despite this, many are still tricked into acting against their own best interests, either by participating in a police interview or being persuaded to give up important protections.

Unfortunately, people who incriminate themselves are often ‘rewarded’ by the pressing of charges against them – or more serious charges against them – and even the refusal of police bail, when the evidence was weak prior to the interview.

It is far better to get your legal advice from someone whose job is to protect your rights and interests – not the person seeking to establish or manufacture your guilt.

4. Judges are ‘softer’ than members of the public

Magistrates and Judges are regularly criticised for being too lenient on offenders – often because radio shock-jocks and newspapers handpick and twist cases to make it seem that way.

In fact, one study found that around two-thirds of people in NSW believe that Magistrates and Judges are too lenient.

But this popular belief was put to the test by a study which saw 60 members of the public watch cases and suggest appropriate punishments. The participants saw the entirety of the evidence on sentencing in those cases, not just media snippets.

The penalties they imposed were then compared with what the Judge actually handed down in those cases, and more than half the time, participants gave a ‘softer’ penalty than the one given by the Judge.

Importantly, the sentences imposed by the Judges represented the ‘most common’ penalty considering the features of the case– so they were not just handpicked, extreme examples.

And rather than getting ‘softer’ over the years, a 2013 BOCSAR study found that Magistrates and Judges are in fact ‘harsher’ than they used to be.

5. Most defendants are ‘dangerous criminals’

It is another common myth that most people who come before the court are ‘dangerous criminals.’

Police have taken advantage of this myth to get more powers – even to take guns with them into court – a move largely unprecedented except in exceptional circumstances.

But in fact, the most common charge before the courts is drink driving; making up 20% of all court cases in NSW, with drug possession and common assault coming in at second and third.

6. Real life courts are just like TV

A whole host of TV dramas present courtrooms as full of drama, packed with witty one-liners and featuring plenty of suspense filled moments.

This is not representative of the way courts really work, and for those expecting Hollywood to translate into real life, it can lead to disappointment.

The gap between fiction and reality can be even wider the lower courts; where people are going in and out all the time, having last minute conversations with the prosecution, and where legal submissions are rarely in the form of dramatic prose and grandiose gestures.

This can be a let-down for those who expected more of a song and dance from criminal lawyers, prosecutors, magistrates and judges.

7. You have the right to a lawyer

It may come as a shock to those who get their information about our legal system from American TV to learn that in Australia, there is no right to be provided with legal representation – not even if you are accused of a criminal offence! This is different to the US where all defendants have the right to a court appointed lawyer.

We do have a limited right to a fair trial, and a defendant is allowed to source a lawyer themselves; either at their own expense or through a grant of Legal Aid. And if a defendant requests an adjournment to seek legal representation for a serious charge in the District or Supreme Court, this is meant to be granted unless there are exceptional circumstances; see Dietrich v The Queen.

However, if you cannot afford a private lawyer and are refused Legal Aid or other support, you are on your own and will have to represent yourself in court, often against an experienced prosecution with deep pockets.

So there you have it – seven common myths cleared up.