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Understanding the Summary Jurisdiction in NSW

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Understanding the Summary Jurisdiction in NSW Understanding the Summary Jurisdiction in NSW Tanya Louise Mitchell A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Sydney Law School University of Sydney 2018 1 Statement of Originality This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any degree or other purposes. I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged. Signature: Name: Tanya Mitchell 2 Abstract This thesis presents an analysis of the NSW summary criminal jurisdiction (the ‘summary jurisdiction’). The summary jurisdiction is a dynamic criminal justice apparatus where magistrates preside over the determination of liability for certain proscribed behaviours in the lower courts without the intervention of a jury. My close analysis of the summary jurisdiction tells the previously little-known story of its development and offers a basis for critique. Adopting a socio-historical approach, this thesis offers a fresh analysis. At a broad level, change over time in the summary jurisdiction can be seen as following a trajectory of formalisation. I argue that ‘formalisation’ is a useful concept for understanding the historical development of the summary jurisdiction. It has four overlapping and interacting dimensions that assume differing degrees of significance at different times. Those dimensions are: juridification; rationalisation; professionalisation together with what I call ‘lawyerification’; and the separation of law from other spheres of social power. Formalisation has been a product of changing legitimation demands and attempts to increase the efficiency of the criminal law. Applying formalisation as a lens through which to view the development of the summary jurisdiction reveals how the summary jurisdiction has achieved the criminalisation of behaviours that have been constructed as harmful. 3 Authorship Attribution Statement Chapter 4 of this thesis contains material published in Mitchell, Tanya, 'Criminalisation of Aboriginal People: Development of the Summary Jurisdiction' in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (Oxford University Press, 2015) 55. This material appears on pages 136–137 of Chapter 4. I was the sole author. Student name: Tanya Mitchell Signature: Date: 4 December 2017 As supervisor for the candidature upon which this thesis is based, I can confirm that the authorship attribution statement above is correct. Supervisor name: David Hamer Signature: Date: 4 December 2017 4 Acknowledgments I would like to thank Dr Arlie Loughnan, Professor David Hamer and Professor Mark Findlay for their wisdom, inspiration, encouragement and patience in supervising this thesis. I would also like to thank Professor Joellen Riley and the staff of Sydney Law School for their moral support and collegiality during my candidature. To the First Tuesday Thesis Club who gave my thesis journey such vibrancy, it would have been a lonely journey without you. To my wonderful friends and family, this thesis would not have happened without you. I am grateful also to Eileen Newby for her thorough and speedy proof-reading and editing services. To my teachers, with gratitude. 5 Contents Abstract ..................................................................................................................................................... 3 Introduction ............................................................................................................................................... 8 1. Introduction ................................................................................................................................... 8 2. Existing Accounts of the Summary Jurisdiction .......................................................................... 10 3. Methodological Approach and Sources ...................................................................................... 27 4. A Frame for a Critical Analysis of the Development of the Summary Jurisdiction .................... 29 5. Overview of the Structure of the Thesis ...................................................................................... 36 6. Outline of Thesis Question and Main Arguments ....................................................................... 38 Part I: Procedures and Practices .............................................................................................................. 40 Chapter 1: Procedures and Practices ....................................................................................................... 41 Procedures and Practices of Jurisdiction ........................................................................................... 42 Evolution of the System of Appeals from the NSW Summary Jurisdiction .......................................... 64 Conclusion .......................................................................................................................................... 77 Part II: Actors .......................................................................................................................................... 78 Chapter 2: Magistrates ............................................................................................................................ 79 From Colonisation to the Mid-Nineteenth Century ............................................................................ 79 From the Mid-Nineteenth Century to the End of the Nineteenth Century .......................................... 84 From the End of the Nineteenth Century to the Final Quarter of the Twentieth Century .................. 86 From the Final Quarter of the Twentieth Century to Present............................................................. 92 Conclusion ........................................................................................................................................ 101 Chapter 3: Justice Personnel ................................................................................................................. 102 Police ................................................................................................................................................ 102 Prosecutions in the Summary Jurisdiction ........................................................................................ 112 Defence Lawyers ............................................................................................................................... 119 Plea Negotiation in the NSW Summary Jurisdiction ........................................................................ 129 Conclusion ........................................................................................................................................ 139 Chapter 4: Defendants and Victims ...................................................................................................... 140 From Colonisation to the Mid-Nineteenth Century. ......................................................................... 141 From the Mid-Nineteenth Century to the Turn of the Twentieth Century. ........................................ 143 From the Turn of the Twentieth Century to the Final Quarter of the Twentieth Century................. 148 6 From the Final Quarter of the Twentieth Century to Present........................................................... 158 Conclusion ........................................................................................................................................ 166 Part III – Substantive Offences ............................................................................................................. 168 Chapter 5: Assault and Affray .............................................................................................................. 169 From Colonisation to the Mid-Nineteenth Century .......................................................................... 170 From the Mid-Nineteenth Century to the Turn of the Twentieth Century ......................................... 171 From the Turn of the Twentieth Century to the Final Quarter of the Twentieth Century................. 177 From the Final Quarter of the Twentieth Century to Present........................................................... 180 Conclusion ........................................................................................................................................ 191 Chapter 6: Drink-Driving ...................................................................................................................... 193 From the Early Twentieth Century to the 1960s ............................................................................... 195 From the Late 1960s to the 1980s ..................................................................................................... 204 From the Early 1980s to Present ...................................................................................................... 208 Conclusion ........................................................................................................................................ 215 Chapter 7: Contravening an Apprehended Violence Order .................................................................. 217 The Period Prior to the Late Nineteenth Century ............................................................................
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