Abstract

http://ssrn.com/abstract=2360934
 


 



The Development and Application in Nineteenth Century Australia of the Prosecutor's Role as a Minister of Justice: Rhetoric or Reality?


David Plater


University of South Australia - School of Law; Honourary Research Fellow - Law Faculty, University of Tasmania

Sangeetha Royan


Independent

April 28, 2011


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.

Number of Pages in PDF File: 53

Keywords: Aborigines, criminal procedure, legal hisory, prosecutions

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Date posted: November 29, 2013  

Suggested Citation

Plater, David and Royan, Sangeetha, The Development and Application in Nineteenth Century Australia of the Prosecutor's Role as a Minister of Justice: Rhetoric or Reality? (April 28, 2011). Available at SSRN: http://ssrn.com/abstract=2360934 or http://dx.doi.org/10.2139/ssrn.2360934

Contact Information

David Plater (Contact Author)
University of South Australia - School of Law ( email )
GPO Box 2471
Adelaide SA 5001
Australia
83027382 (Phone)
83027128 (Fax)
Honourary Research Fellow - Law Faculty, University of Tasmania ( email )
Private Bag 89
Hobart
Tasmania, 7001
Australia
Sangeetha Royan
Independent ( email )
No Address Available
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