University of Tasmania law review最新文献

Bushrangers, the Exercise of Mercy and the 'Last Penalty of the Law' in New South Wales and Tasmania 1824-1856 1824-1856年新南威尔士州和塔斯马尼亚州的丛林游骑兵，仁慈的行使和“法律的最后惩罚”

University of Tasmania law review Pub Date : 2013-01-01 DOI: 10.2139/SSRN.2388021

D. Plater, P. Crofts

{"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}

引用次数: 0

Has the 'Silver Thread' of the Criminal Law Lost its Lustre? The Modern Prosecutor as aMinister of Justice 刑法的“银线”是否失去了光泽?作为司法部长的现代检察官

University of Tasmania law review Pub Date : 2012-11-22 DOI: 10.2139/SSRN.2358305

D. Plater, Lucy Line

{"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}

引用次数: 3

The development and application in nineteenth century Australia of the prosecutor's role as a minister of justice: rhetoric or reality? 19世纪澳大利亚检察官作为司法部长角色的发展和应用:修辞还是现实?

University of Tasmania law review Pub Date : 2011-04-28 DOI: 10.2139/SSRN.2360934

D. Plater, S. Royan

{"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}

引用次数: 1

The Development of the Prosecutor's Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice? 英国和澳大利亚检察官在披露义务方面的角色发展:党派倡导者还是司法部长?

University of Tasmania law review Pub Date : 2009-01-22 DOI: 10.2139/SSRN.2360937

D. Plater

{"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}

引用次数: 4

Bridging the Global Divide on Human Rights 弥合全球人权分歧

University of Tasmania law review Pub Date : 2005-01-01 DOI: 10.4324/9781315197166

T. Marsh, B. Harris

引用次数: 1

Mediation - Skills and Techniques 调解-技巧和技巧

University of Tasmania law review Pub Date : 2003-01-01 DOI: 10.4324/9780203166215-18

Er Sharp

引用次数: 13

A human right to reproduce non-coitally? A comment on the Austrian Constitutional Court's judgment of 14 October 1999. 非性繁殖的人权?对奥地利宪法法院1999年10月14日判决的评论。

University of Tasmania law review Pub Date : 2002-01-01

Erwin Bernat

引用次数: 0