Discretion in Criminal Justice
A practical guide examining the case law, legislation, practice rules and international law obligations applicable to the criminal justice decision-making process.
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‘Discretion … applies to the process of decision-making where there is no single, unarguable or predominant outcome indicated and a choice must be made from available options that are within permissible limits …’
‘… there need to be rules in place, to give as great a degree of certainty as is appropriate, to eliminate unprincipled subjectivity, ensure stability and order and provide consistency, fairness, justice and equality of treatment under the law.’
Reasonable minds may differ as to the application of those rules.
Discretion in Criminal Justice explores the stages of the criminal justice process at which discretion is exercised, discusses the limitations on that exercise and identifies available options for review.
The text discusses how and why discretion is applied at each stage (investigation, prosecution, defence, adjudication, sentencing and corrections) and also includes chapters that comprehensively survey the exercise of discretion in regard to bail, juries and appeals.
Drawing on the author’s extensive and longstanding involvement in criminal justice, including as Director of Public Prosecutions for New South Wales for over 16 years, the text provides an essential practical guide to both students and practitioners as to the principles to be applied and sources of information to assist in decision-making. It will also inform members of the public who may wish to know why and how such decisions are made.
This important practical guide for students and practitioners examines the case law, legislation, practice rules and international legal obligations that are applicable and relevant to the criminal justice decision-making process. It also provides lengthy treatment of the historical development of relevant principles to give some context to the present exercise of discretion in those aspects.
• In-depth analysis backed by legislation and caselaw.
• Step-by-step coverage of the stages in the course of the criminal justice process.
• NSW coverage with comparisons to other States.
• Practical reference for legal practitioner, including as a reference to law, cases and precedents.
• Respected and authoritative author
• Suitable of both practitioners and the academic sphere
• Howie et al, Hayes & Eburn Criminal Law and Procedure in New South Wales, 6th ed, 2019
• Finlay & Kirchengast, Criminal Law in Australia, 2nd ed, 2020
Table of contents
- 1 THE CRIMINAL JUSTICE PROCESS
- 2 DISCRETION
- 3 INVESTIGATION
- 4 BAIL
- 5 PROSECUTION PRE-TRIAL
- 6 CHARGE RESOLUTION AND AGREEMENT OF FACTS
- 7 MANAGING THE TRIAL PROCESS
- 8 DISCRETIONARY EXCLUSION OF EVIDENCE
- 9 THE ACCUSED
- 10 JURIES
- 11 PENALTIES
- 12 OTHER CONSTRAINTS ON SENTENCING DISCRETION
- 13 APPEALS
- 14 CORRECTIONS