CRIM2020 Lecture Notes - Lecture 5: 2004 Palm Island Death In Custody, Videotelephony
Week 5: Process as Punishment – Bail
Process as punishment
• Feeley's basic argument
• Theme links:
o Penal populism: major political parties compete with each other to be 'tough on
crime'
o If you're denied bail its classified as punishment (punished before being heard in
front of a judge)
o Criminalisation theories
o Enduring impacts of colonialism (the policy or practice of acquiring full or partial
political control over another country, occupying it with settlers, and exploiting it
economically)
o Police powers (arrest), powers are not always exercised evenly between members
of the community
o Bail
o Public order offences
Punishment without trial (Police as a penal agency)
• More Aboriginals are dying in police custody over prison custody
• 46% of drunkenness offences are Aboriginal
Punishment Without Trial
• Hogg: Policing and Penalty (1991)
o Aboriginal people detention 27 times the rate for non-aboriginal
o 2/3 of all Aboriginal detentions for drunkenness/public order
o Aboriginal over-representation in police custody > prison system
o Average detention 24 hours
o 50% of persons released < 6 hours
o Custody survey undermines the popular image of the criminal justice system
Process as Punishment (cont.)
1. Why do Aboriginal people tend to be overrepresented in police custody and in the
prison system? Why is there little public scrutiny of police custody?
• Certain groups of people fit categories more and are more likely to be arrested and
denied bail and do not fit criteria on bail conditions (having permanent home and/or
job)
• Over emphasis on public order offences and police are more concerned on social
marginality
• Aboriginal people prefer the outdoors (are in more contact with the police)
• CJS tend to summarise the process
• No public scrutiny because we don’t know what is going on and this is when things go
wrong
2. What, according to the Coroner, could Sergeant Hurley have done in the early
stage to prevent the death of Mulrunji?
• Could have done nothing and not arrested
• Could've used discretion just to speak to him
3. What were some of the problems in procedure identified by the Coroner in
investigating the death?
• Inviting other officers over for sinner
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Document Summary
Process as punishment: feeley"s basic argument, theme links, penal populism: major political parties compete with each other to be "tough on crime" Punishment without trial (police as a penal agency: more aboriginals are dying in police custody over prison custody, 46% of drunkenness offences are aboriginal. Does a role discriminate against indigenous people: doesn"t seem sensible to have this policy and not a hospital policy. Bail: what are the traditional purposes of bail, to ensure the defendant turns up to their court hearing, doctrinal basis of bail, personal freedom and liberty. It was unrelated about whether or not the person was a serious offender: government wanted to keep things moving quickly and efficiently, according to stubbs, what was the impact of the constant amendments to the bail. Key provisions of bail act 2013: presumption of innocence is removed to preamble (pg.
