On 15 May 2000 the editorial of the Sydney
Morning Herald stated:
"It is
refreshing to hear proposals which identify inefficiencies, not lack of
resources, as the main reason for court delays. Criminal defendants in the NSW
District Court endure (or exploit) the longest delays of any in
Australia."
The newspaper was commenting on a report by
the NSW Bureau of Crime Statistics and Research entitled "Managing
Trial Court Delay: An Analysis of Trial Case Processing in the NSW District
Criminal Court" released on 12 May 2000. Its comments were partly
correct.
The BOCSAR report found that in 1999 the
average delay between committal and trial in the District Court was more than
one year, longer than any comparable court in Australia. The principal cause of
inefficiency in the management of trial cases is the failure of matters to
proceed to trial on the day they are first listed for hearing. The most common
causes for that phenomenon are:
- a plea of
guilty on the day of the trial (35%)
- the granting of
an adjournment (29%)
- the matter
being not reached by the court (22%).
Late changes of plea, according to the
report, stem from:
- the absence of
any actual or perceived sentence benefit from pleading guilty early
- a failure on
the part of Crown and defence representatives to engage in meaningful and early
negotiations on the scope for a plea of guilty
- legal aid
payment arrangement which provide little incentive for early pleas of guilty.
The high number of adjournments is blamed at
least partly on the Court's practice of over-listing, the cause also of the
high proportion of cases that are not reached.
It is hoped that the level of benefit to be
achieved by an early plea of guilty will be clarified and made certain in the
guideline sentencing judgment that will be delivered following the hearing that
took place on the day the BOCSAR report was released.
Legal aid arrangements for the centralised
committal project that has been undertaken in Sydney, Sydney West and in
Lismore (and which will be extended elsewhere in the country) have reduced the
number of committals for trial from those courts where they have operated by
over one third.
A thornier problem for the profession - and
the one on which this paper principally concentrates - is the engagement of
prosecution and defence in meaningful exchanges prior to trial. The Sydney Morning
Herald was right to use both verbs - endure and exploit - in its comment on the
situation; but there is much more than can be done to encourage pre-trial
discussions that may result in pleas of guilty, or at least in the
identification of the issues that are truly in dispute.
Resources
The Sydney Morning Herald should not have
dismissed the question of resources. Over-listing by the Court is a problem
linked to the provision of resources - money - for the discharge of the Court's
duties. The approach has been taken that the limited resources provided are
best managed by keeping the courts sitting - and that the best way of ensuring
that happens is to list more matters than can be dealt with on any one day.
However, it now seems that, with the prompting of the BOCSAR report, the Court
may at last accept the argument that has been levelled consistently for years:
that it is false economy to over-list; that the costs to all participants of
matters being not reached far outweigh the small sums saved by keeping the
court lights burning.
Resources also play a part in the problem of
timely prosecution and defence engagement before trial. This problem is, in
turn, linked with court over-listing. Scarce resources are also provided to the
prosecution and they must be husbanded wisely. If courts over-list then
prosecutors must be briefed to appear in all matters that are listed. They may
not get those briefs until a day or so before the listed trials, because there
are not sufficient funds made available to enable prosecutors to have days out
of court between trials (other than in rare cases where lengthy preparation is
clearly required and the prosecutors can be freed from court commitments in
order to do it). If preparation is forced to be done at the last minute, then
it will not be until the day of trial that prosecutors will be in a position to
talk meaningfully with the defence.
A similar quandary may beset defence
representatives. Often the financial arrangements for defence representation
(as to structure, timing and quantum) will be such as to discourage the early
preparation of defended matters.
Fair Trial
The true objective of all participants in
the criminal prosecution process should be the achievement of a fair trial.
(But I am not so naïve as to ignore the desire of an accused person to avoid a
trial altogether ...)
A trial must be fair not only to the
accused, but also to the community - the other party to the proceedings. It is
a fine balance, the attainment of which is a source of pride to our system of
criminal law. The safeguards, for both sides, are well entrenched in the
procedural law and professional rules by which we are bound. But we could do
more.
Prosecution Disclosure
All Australian Directors of Public
Prosecutions have guidelines requiring full and timely disclosure to the
defence of all material known to the prosecution that is relevant to the
proceedings - relevant to prove the charge or possibly relevant to assist the
defence. The NSW Prosecution Guideline 11 includes the following:
"Prosecutors
are under a continuing obligation to make full disclosure to the accused of all
facts and circumstances and the identity of all witnesses reasonably to be
regarded as relevant to any issue likely to arise at trial. Tactical
considerations are not to be taken into account when making that
assessment."
This obligation is taken seriously. In NSW,
in order to ensure first that the prosecution is provided with all relevant
material - and is therefore in a position to fulfil the duty to disclose -
there is a requirement that the police certify, in every brief of evidence
provided to the ODPP, that they have disclosed to us all relevant material
known to them (see Prosecution Guidelines, Appendix D). This obligation is
included in the Police Instructions and a breach is a disciplinary offence.
Nevertheless, it must be conceded that there are times when the obligation is
not fulfilled by police and it may be argued that until there is better police
compliance with this requirement, the defence may continue to harbour some
scepticism that, in fact, all has been disclosed to them. Nevertheless, we are
continuing to reinforce and obtain compliance with this obligation.
Defence Disclosure
With a few exceptions, there is no
obligation on the defence to disclose anything to the prosecution or to the
court in advance of presentation of the defence case.
The exceptions include alibi, substantial
impairment by abnormality of mind and (in common with the prosecution)
tendency, coincidence and hearsay evidence.
In my view the defence should be required to
do much more. (See generally my paper "The Right to Silence
(So-called)", CLE Centre, 19 June 1999.)
The Right to Silence
There is no right to silence. The defendant
in fact enjoys a series of immunities as he or she moves through the
prosecution process.
The best summary of the position is probably
to be taken from the speech of Lord Justice Mustill in R v Director of
Serious Fraud Office, ex parte Smith (1993) AC 1 at p 30:
"This
expression [the right to silence] arouses strong but unfocused feelings. In
truth it does not denote any single right, but rather refers to a disparate
group of immunities, which differ in nature, origin, incidence and importance,
and also as to the extent to which they have already been encroached upon by
statute."
His Lordship then identified a number of
these immunities, including general immunities:
- possessed by
all, from being compelled on pain of punishment to answer questions posed by
others;
- possessed by
all (except, in Australia, corporations and individuals subject to statutory
compulsion) from being compelled to provide answers to questions which may
incriminate them;
and specific immunities:
- possessed by
all criminal suspects being interviewed by police (or others in authority),
from being compelled to answer any questions;
- possessed by
accused persons at trial, from being compelled to give evidence or answer
questions;
- possessed by
accused persons at trial, from having adverse comment made on any failure to
answer questions before trial or to give evidence at trial.
These are, indeed, disparate immunities; and
it is important to note that they are not inviolate - they can be altered by
statute (or, indeed, by the High Court).
They can also be modified in their
application - substantially - by practice and custom.
International Standards
Fair trial standards are prescribed in a
number of international instruments, including the Universal Declaration of
Human Rights, International Covenant on Civil and Political Rights and
various rules and guidelines accepted by the community of nations. They are
also reflected in the documents of non-government organisations, such as the Standards
of the International Association of Prosecutors.
In Australia, pursuant to the Bangalore
Rules, the courts may have recourse to international instruments to fill a
gap or to resolve an ambiguity in domestic law.
Their importance lies in the universality of
such standards. They are to be complied with all over the world. They protect
the rights of the accused. But once they have been achieved - as they have been
in Australia - it is safe to look further: to see what other guidelines we may
adopt to better ensure the balance that lies at the base of a fair trial. In my
view it is time to see what might be done to improve fairness to the community.
CADs, LADs and the LCA
In 1998 the Conference of Australian
Directors of Public Prosecutions (CADs) and the Legal Aid Directors (LADs)
developed A Best Practice Model for the Determination of Indictable Charges.
This followed months of co-operative work "to identify measures that
would contribute to the more efficient determination of indictable charges without
diminishing the presumption of innocence" [emphasis added].
The Model reaffirms the fundamentally
inquisitorial nature of criminal procedure by which the state must prove guilt
without the enforced assistance of the accused. It endorses full and timely
disclosure by the prosecution. It lists the following elements of best practice
in dealing with indictable crime.
1. The DPP should have responsibility for the prosecution
of matters at committal.
2. Legal aid should be made available to all indigent
accused facing committal on serious indictable offences as soon as possible
after charge.
3. Grants of legal aid should be structured to encourage
resolution of matters prior to committal.
4. Counsel with sufficient experience to deal with the
issues likely to arise at trial should be engaged prior to committal by both
prosecution and defence.
5. Both counsel should have authority to make decisions
or be able to expeditiously obtain instructions regarding the ultimate
resolution of the case and should ordinarily be expected to carry the matter
through to completion.
6. Both counsel should actively canvass the possibility
of resolving matters in dispute prior to committal, including the potential for
summary determination.
7. Where a guilty plea has been identified prior to
committal and the matter cannot be dealt with summarily, agreement should be reached
on the indictment and facts constituting the offence so that the accused can
enter a plea of guilty at committal.
8. At the earliest possible stage after committal the
matter should be set down for mention in the Supreme or District Court before a
judicial listing officer.
9. Mentions before the judicial listing officer should
be able to be held before or after normal court hours so that both prosecution
and defence can keep appropriate counsel involved.
10. Provided the prosecution has made full disclosure, at
the listing mention counsel for the defence would be required to advise which
witnesses were not required for trial and which facts were admitted. The fact
that an accused has made admissions prior to trial, or failed to make
admissions of fact which are ultimately not in contention, could be taken into
account in sentencing where the accused is subsequently convicted.
11. Where the prosecution has fully disclosed all
relevant material, counsel for the accused should be asked by the judicial
listing officer to disclose the essence of the defence and the facts in dispute
in order that the issues alive at trial might be further confined. Where the
defence responds, the prosecution would be required to confirm whether there
was any further material possibly relevant as a consequence of defence
disclosure.
12. At the latest there should be disclosure by the
defence of the issues relevant to the trial immediately following the
prosecution opening and before any evidence is adduced.
13. Those accused committed for sentence should have
their pleas dealt with expeditiously.
14. Where a plea of guilty was entered at committal, the
sentencing court should impose a penalty which can be objectively seen to be
below that which its criminal gravity would otherwise demand but for that early
indication of plea.
15. Grants of legal aid should include a requirement that
following conviction and sentence, counsel should identify and certify as valid
(not merely arguable) any proposed grounds of appeal, as well as providing a
brief outline of the arguments in support of those grounds, with transcript
references where applicable.
Also in 1998 the Law Council of Australia
produced its own Reform of Pre-Trial Criminal Procedure Principles, a
framework for analysis and change in all Australian jurisdictions. The
Principles reflect, in large part, the Best Practice Model, emphasising the
adversarial nature of criminal procedure, prosecution disclosure, the
facilitation of proof of some matters, defence inquiry (including the use of committal
proceedings) and legal assistance. They include provisions for defence
disclosure, to some extent, but preserving the right to silence. They conclude
with the following propositions:
19 These conclusions do not prevent the
development of procedures designed to facilitate, and encourage, pre-trial
defence disclosure. Incentives to encourage pre-trial disclosure might include:
(a) first ensuring full prosecution disclosure;
(b) encouraging informal resolution of issues by legal
practitioners appearing for the prosecution and defence;
(c) requiring the prosecution to disclose, at a
reasonable time before the trial, the totality of any further material which
may be relevant as a consequence of the defence disclosure;
(d) where the accused is found not guilty, taking into
account defence disclosure in consideration of costs awards; and
(e) where the accused is found guilty, taking into
account defence disclosure in sentencing proceedings as a mitigating
circumstance (although failure to make disclosure should not be regarded as a
matter of aggravation).
20 By the conclusion of the pre-trial
process, the defence should be in a position to outline the nature of the
defence case. If there is a trial, the defence should be required to provide
that outline, immediately after the prosecution opening address.
NSW Law Reform Commission
On 1 August 1997 the NSW Attorney General
referred to the LRC a review of the law relating to the right to silence. A
Discussion Paper has been circulated and a final report is awaited. It is fair
to say that the LRC seems to favour some relaxation of the hitherto strict
protections enjoyed by the right to silence (as it is commonly understood). The
Discussion Paper raised three options for compulsory defence pre-trial
disclosure:
-
the disclosure of expert
scientific reports where relied upon;
-
disclosure of the defences of
intoxication, provocation, duress, self-defence (in addition to alibi and
diminished responsibility); or
-
identification of issues in
dispute and any additional issues to be raised by the defence.
Standing Committee of Attorneys General
SCAG appointed a Working Group on Criminal
Trial Procedure which reported in September 1999. It sought to identify areas
in which the system could be improved. It reaffirmed the adversarial system and
proceeded upon the fundamental premise that an accused is not to be compelled
to answer questions or to assist the prosecution in proving its case. It
emphasised the right of every accused to a fair trial.
The Working Group identified the need for
early and complete prosecution disclosure and stated that one of the most
effective means of reducing the cost of the administration of criminal justice
is to identify pleas of guilty at the earliest possible opportunity. It
reported that legal aid should adopt a more solution-oriented approach with
specific grants for pre-trial dispute resolution and capped grants of aid for
trials. Defendants should receive a tangible and publicly identified discount
for early pleas of guilty. Improvement in this area will only be possible if
grants of legal aid and prosecution services facilitate the early involvement
of practitioners with the necessary experience and authority required to
resolve matters of dispute and negotiate pleas of guilty.
The DPP should be involved at the earliest
possible stage, in complex matters during the course of the investigation in
order to assist in focusing the investigation upon appropriate persons and
charges.
Western Australian and Victorian "fast
track" systems should be adopted to efficiently transfer those who wish to
plead guilty from the lower courts to the sentencing court. There should be a
significant and publicly identified sentence benefit for those who make use of
this procedure.
Pre-trial procedures should begin with a
prosecution case statement. Coupled with complete prosecution disclosure, that
would put the defence in the best possible position to make decisions as to
what facts and issues are not in dispute. The primary concentration should be upon
incentives to co-operate, rather than the imposition of sanctions for
non-compliance. Legal practitioners should be under an obligation to advise a
defendant as to the consequences of both co-operation and a lack of
co-operation (see now Rules 17A and 17B of the NSW Bar Rules).
The Report concluded:
"Whatever
procedures are put in place, ultimately the efficient operation of our system
of criminal justice requires adequate funding and the co-operation of members
of the legal profession in complying with their duties not only to defendants,
but also to the court and the community."
AIJA/SCAG Conference
On 24-25 March 2000 The Australian Institute
of Judicial Administration and SCAG jointly held a conference in Melbourne to
debate the Working Group's proposals. A Deliberative Forum distilled the
product of the debate into a schedule of recommendations which it published on
26 March 2000. Those recommendations, in my view, unduly favour the accused and
pay no regard to the requirement for trial procedure to be fair to the
community or for the legal profession to comply with its duties to the court
and the community. The recommendations have been referred to SCAG which, it is
understood, will address the matter at its next meeting in July.
The recommendations include the following.
· In complex cases the DPP should be involved during the
investigative process.
· In all matters the DPP should be involved
in reviewing charges laid by the police at the earliest possible opportunity.
· Each DPP should prepare prosecution
guidelines dealing with the choice of charges and discussions with the defence.
[They already exist - in NSW as to both parts.]
· The prosecution obligation of disclosure
should be given a firm basis. [Guidelines already exist.]
· The disclosure obligation should be
specifically identified as applicable to both prosecutors and investigators.
[Guidelines already exist in NSW.]
· Disciplinary sanctions should exist in
respect of investigators who fail to comply with their disclosure obligations.
[They do in NSW.]
· Disclosure should be required prior to
committal proceedings unless the requirement for disclosure is waived at the
first or subsequent mention of the matter. [In NSW briefs must be served before
committal.]
· In advance of the committal hearing the
prosecution should supply to the court and the defence a case statement
outlining the acts, facts, matters and circumstances being relied upon by the
prosecution.
· Legal aid should be made available to all
persons unable to afford legal representation facing committal on serious
indictable offences as soon as possible after charge.
· Grants of legal aid should be structured
to encourage resolution of matters prior to committal.
· Counsel with sufficient experience to deal
with the issues likely to arise at trial should be engaged prior to committal
by both prosecution and defence.
· Both counsel should have the authority to
make decisions or be able expeditiously to obtain instructions regarding the
ultimate resolution of the case and should ordinarily be expected to carry the
matter through to completion.
· Consistency of representation should occur
throughout the committal and trial process. Certainty of trial dates is
required.
· Both counsel should actively canvass the
possibility of resolving matters in dispute prior to committal, including the
potential for summary determination.
· A "deposing" procedure and a
"fast track" procedure similar to those in WA and Vic should be
available to the prosecution.
· Where a guilty plea has been identified prior
to committal and the matter cannot be dealt with summarily, agreement should be
reached on the indictment and the facts constituting the offence so that the
defendant can enter a plea of guilty at committal.
· A defendant committed for trial must be fully
informed by counsel and the committing magistrate that a failure to co-operate
may result in the loss of any sentencing discount that would otherwise be
applicable.
· Compulsory pre-trial regimes under the
control of the court should be instituted.
· A prosecution case statement should be
filed before trial and the prosecution should not be permitted to adduce
evidence additional to that disclosed by the required date, unless a reasonable
explanation is provided as to why earlier disclosure was not made or the
interests of justice otherwise require that the prosecution should be permitted
to lead the evidence.
· At the time of the filing and serving of
the final case statement, the prosecution should be required to file and serve
a notice of pre-trial admissions. A defendant should then be required to file
and serve a response, a notice of any additional matters to be admitted or
proved informally, all reports or statements of expert witnesses proposed to be
called at trial and notices relating to the proof of surveillance evidence,
continuity of exhibits, listening device transcripts, charts, diagrams, etc.
· Lawyers should advise of incentives for
co-operation.
· All jurisdictions should consider the
adoption of rules in relation to expert evidence such as those used in the
Federal Court and Supreme Court of South Australia.
· Prosecution failure to comply with its
obligations should empower the court to award costs, grant a voir dire
examination or exclude evidence.
· "The consequence of a defence failure
to reveal an aspect of the defence prior to trial is a matter of contention.
The question of sanctions should not be considered in relation to the defence
at this stage."
· A defence opening should follow the
prosecution opening, responding to the Crown opening and identifying the issues
in dispute.
· Trials should be made more "user
friendly".
· Time limits on cross-examination and other
measure should be available to the judge to shorten and simplify trials.
· "It is essential to the fair and
efficient administration of justice that legal practitioners comply with their
obligations to act diligently and expeditiously".
(And so on, with much repetition and further
attention to detail.)
While many of the recommendations are
unexceptionable, as a whole they unfairly favour the position of an accused
while not assisting in the more expeditious disposal of matters. Their
implementation would increase the cost in time and money to the criminal
justice system.
The CADs met in April 2000 and responded to
the recommendations by stating that in a broad sense the recommendations
reflect the preparedness of prosecution agencies to co-operate in the trial
process and to improve the efficiency of the criminal justice system; but on
the other hand,
"those
members of the profession who represent accused persons understandably do not
share the same interest in assisting a process which may result in the
conviction of the accused. This limits their ability to promote the efficiency
of the trial process, particularly where this may be seen by them to infringe
rights traditionally accorded to the accused. The Directors do not accept that
their concerns are well based...
The regime proposed
by these recommendations would be heavily regulatory, technical and provide
opportunities for delay without realistic incentives or effective sanctions to
limit these problems, which were addressed in the Best Practice Model.
In summary,
the Directors wish to emphasise:
1. That reforms of the kind recommended will require
significant additional prosecution resources.
2. That any
object of improving efficiency can only be achieved by both parties
contributing to the refining of issues prior to the trial. The present
recommendations are primarily directed to one side only."
Conclusion
The ball now seems to be in SCAG's court.
The approach of the CADs and LADs - and, in essence, that of the LCA - has been
one of seeking to foster a higher level of co-operation between prosecution and
defence, without the commitment of significant additional resources and the
imposition of a detailed regime of sanctions for non-compliance with very
specific requirements. But if the AIJA/SCAG recommendations are taken up, the
benefits of such an approach will probably be lost.
A measure of defence disclosure, by
co-operation, is achievable in a professional environment without surrendering
the principles underlying the right to silence. That is probably our best
chance of achieving trials that are fair - to both sides - without undue cost
and delay.