The development and application in nineteenth century Australia of the prosecutor's role as a minister of justice: rhetoric or reality?
Plater, D and Royan, S, The development and application in nineteenth century Australia of the prosecutor's role as a minister of justice: rhetoric or reality?, University of Tasmania Law Review, 31, (1) pp. 78-131. ISSN 0082-2108 (2012) [Refereed Article]
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. Factors that influenced the perception and
performance of the prosecutorial role during this period are
examined. 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.