Access to better, usually more expensive, legal representation, subconcious bias in the judiciary in favour of the accused, greater to access to privacy provide better outcomes and are but a few reasons why the wealthy’s experience of ‘justice’ is very different from that of the poor’s. This is unfair, of course, and extremely serious, undermining universal trust and confidence in the justice system. It is also dangerous, in that this unfairness, a lamentable feature of the civil and criminal justice systems, is characteristic of the substantive impunity that the wealthy and the powerful enjoy in our society, giving them implicit permission to take advantage of, and trample on, the dignity and rights of others, secure in the knowledge that they can, as the old adage goes, get away with it.
Case in point, s 32 applications/now s 14 diversion orders of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) are technically free to litigants in NSW. However, unrepresented litigants may not be aware that this diversion order is available to them, and if they were aware, the costs associated with obtaining psychological assessments and psychiatric reports would be prohibitive. So the line between treatment (liberty and potential rehabilitation) and punishment (incarceration) is a clear one: money. Advocacy and support should be available to all, not least because the consequences for the litigants are so unequal and uneven, impacting the application of foundational rule of law principles and the administration of justice.
When the crimes of the poor, such as the inability to pay traffic fines, petty theft and other low level misdemeanours, which some regard as already over-criminalised, occur in a system in which private legal representation is prohibitively expensive and legal aid is difficult to obtain, the final outcome is predictably unfair. The inability to have recourse to bail due to limited means compounds the imbalance of the impact of even low level misdemeanours on the poor in relation to the experience of those who can readily post bail. Habeas corpus, it seems, is only guaranteed for those who can afford it, without more. What a sorry state indeed, especially given the principle of presumption of bail, and the individual’s fundamental right to liberty and the presumption of innocence prior to conviction. BOCSAR statistics claim that over 50% of litigants were unrepresented between 2000 to 2004 in the Local Court. ‘Justice’ is expensive, and unfair, and evidently, structured according to economic means, a two-tiered system offering two types of justice experience: an arguably much fairer, and too may cases, the ideal justice experience, one for the rich, and a kind of Russian roulette for the poor.