Justice is a concept of “moral rightness” which is open to individual interpretation. The concept of justice, as held by individual defendants and respondents, often gets in the way of the clarity required to reason and seek out alternative resolutions in the face of complex and sometimes serious problems.
Despite wanting to “take the police on”, fight a charge or an allegation, each individual must stop and think about their matter from all angles before proceeding blindly in the pursuit of justice.
Defendants and Respondents in criminal or quasi-criminal proceedings need to give consideration to what options might be explored throughout their matter to push for early resolution. Charging forward to a hearing or trial might sound like the way to achieve justice but the consequences can be severe if you fail. For example, if you are convicted after a criminal trial a harsher penalty will likely be imposed on you.
In the civil law world, options that achieve early resolution are frequently explored as a matter of course: without prejudice offers to settle, dispute resolution before filing proceedings and dispute resolution or mediations after proceedings have commenced. In family law matters, as a rule of thumb, all litigants must first attempt to resolve their matter through mediation. Without having ticked that box proceedings cannot be commenced and the Court registry will not file your application material. The system in the civil world works quite well. Even the most steadfast civil litigant will often consider resolving a legal proceeding at the doors of the Court to cut their losses and avoid a legal battle.
Unfortunately the police are not required to, nor are they funded to, give any thought to ticking such a box. Unlike civil matters, most criminal law and quasi-criminal law matters do not have the powerful incentive that pushes for early resolution in civil matters: Costs Orders. There are limited exceptions, see our blog: “Costs Applications against the police” dated Thursday January 2, 2014.
There are however, a plethora of options available in criminal and quasi-criminal matters for early resolution. These need to be considered and explored on a case-by-case basis.
Justice Mediation is available for a number of matters and advice should be sought about this option. If successful, mediation can result in a criminal charge being discontinued in Court thus avoiding a criminal record, any penalty that might have otherwise been imposed by a Court and the legal fees associated with fighting the allegation raised.
In Domestic and Family Violence and Peace and Good Behaviour matters there might be some ground for an application to strike out the proceedings. The timing and execution of such an application has to be well thought out and executed but the results can be hugely beneficial. Such an application could be made on the basis that an application is an abuse of process, vexatious, frivolous or if the application is doomed to fail. Costs are rarely able to be awarded in these matters.
In both the summary and indictable jurisdiction a system of case conferencing exists and might allow a negotiation with the prosecution about charges and could see a charge either being amended or discontinued.
Prosecutions in relation to indictable offences might reveal, when properly prepared by the defence, some ground for an application to dismiss the matter at a committal stage. An application to dismiss a matter can be made if it can be demonstrated to the requisite standard that no jury, properly instructed, could possibly convict the defendant.
Fighting for justice is important but the concept of justice might not be the only important consideration. Justice achieved at any cost might not achieve justice at all. Before battling on, think about your options and source out focused advice so that you can explore whether you have an avenue for early resolution.