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Aboriginal Law Bulletin |
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by Mark Findlay, Stephen Odgers and Stanley Yeo
Oxford University Press, South Melbourne, 1994
374 pp; $39.95, softcover.
Review by Rick Sarre
It has been a decade since I first selected the Peter Sallmann and John Willis text, Criminal Justice in Australia, as the preferred reader for the criminal justice class which I introduced to the former South Australian CAE in 1985.
As it became dated I struggled to find another text that covered the areas I wished my classes to explore. It needed to be an introductory text, expressed coherently and logically, and free of jargon and legalese.
I toyed with the idea of using Elizabeth Ellis' 1988 book written in conjunction with the New South Wales Bureau of Crime Statistics and Research, Thinking About Crime and Justice but it was designed to be, essentially, a legal studies text, useful at the high school level but not for tertiary students.
The various Duncan Chappell and Paul Wilson volumes that make up The Australian Criminal Justice System series (Butterworths) had the same problem as the Pluto Press The Criminal Injustice System series, the 1983 Allen and Unwin, Issues in Criminal Justice Administration, and Law Book Company's Understanding Crime and Criminal Justice (1988). That is, the publishers tossed together a range of issues that followed no logical sequence and were chosen for no other reason, often, than they were the current study interests of the writers selected as contributors by the editorial staff. I have no criticism of that style, other than to say that it does not suit students or lecturers who wish to work through a text from introductory principles to a range of conclusions.
At last Oxford University Press have filled the criminal justice teaching and learning void with this latest text. It has all the hallmarks of being the preferred student text in this area for years to come. For a start, the authors make it clear throughout the book that the notion of justice is conjectural and contingent. Indeed, the best a system can do in order to attempt to ensure justice for all, declare the authors, is to put in place mechanisms that attempt to forestall or avoid injustices. Justice cannot be guaranteed by the legal system or proper law enforcement. These systems in fact harbour the potential for great injustice unless care is taken in implementation.
The authors present their material in a manner which is not ideologically driven. Arguments for and against propositions are placed fairly and evenly for the reader to consider. Comparisons from international jurisprudence are made at regular intervals and reform initiatives are discussed in a manner that indicates that they, too, are integral to the legal and social material presented. (I look back with great regret upon the days of my legal training two decades ago when the moment the word `reform' was mentioned students' minds (including mine) went into slumber mode.) Here, the `ought' is given equal time with the `is'.
The book is a combination of the sorts of topics one would expect to be covered (albeit in overview), dealing with criminal law, evidence, criminal procedure, sentencing, police studies and (to a lesser extent) criminology. Of particular note is the way in which the male and Anglo-Saxon nature of the legal system is highlighted at every opportunity. Disdain for the unjust status quo and suggestions for reform are in abundance in the text.
There are some areas which have been neglected. This is not necessarily a criticism, for to include every topic would be to expand the book to too great a length. Recent efforts to include Aboriginal customary law in criminal, law and procedure are not addressed. The `private' policing phenomenon which has been with us for two decades and its consequences for the criminal justice system is ignored. The new (from January 1 1994) juvenile justice system in South Australia that incorporates the New Zealand `family conference' model has been omitted. The field of private `negotiated' justice is a growing area and one that required some discussion. Chapters 7 and 8 (Punishment and Penalty, and Sentencing) cover much the same areas and should have been consolidated.
Style-wise, I would have preferred paragraphs in the text. Assuming that this book is designed to be a student workbook, it is imperative that lecturers do not have to change all of their references each time a new edition is published. Finally, the index should have included the forty pages of footnotes. The information contained therein cannot be unlocked easily without cross-referencing.
Chapter 10 brings together a number of essential criminological themes: the role of victims in the system, gender bias in the law, indigenous peoples' issues, juveniles, corporate responsibility and the way in which the law often discriminates against those with intellectual disabilities. Each of these topics is dealt with, however, as something of an add-on, almost as an after-thought. My preference would have been to incorporate each of them into the mainstream text.
In summary, however, these criticisms pale in comparison to the wealth of information that is contained in the book. The text is timely and an excellent reader for any class that is studying the criminal justice process. I recommend it highly.
Rick Sarre teaches law at the University of South Australia.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/17.html