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Editors --- "Twofold approach needed for court reform" [1998] AUFPPlatypus 39; (1998) 61 Platypus: Journal of the Australian Federal Police, Article 10


Twofold approach needed for court reform

The possibility of reforming court rules and procedures was the focus of a conference attended by senior judges, Directors of Public Prosecutions senior legal representatives and officers from law enforcement agencies recently.

Conducted by the Australian Institute of Judicial Administration, the conference, Reform of Court Rules and Procedures in Criminal Cases, was held in Brisbane in July. Special guest speaker was renowned criminal barrister Michael Hill QC who has broad experience in the operation of the criminal justice system in England and Wales.

The AFP was represented by Federal Agent Mick Keelty (then General Manager Northern Region, now General Manager National Operations), and Federal Agent Alan Scott, then also from Northern Region, and now an AFP liaison officer in Rome.

The conference was opened by the acting Solicitor-General Henry Burmaster QC, delivering an address from the Federal Attorney-General, Darryl Williams QC, which said that increased delays and costs in the criminal justice system were of real concern to the government, and urged participants to accept that major changes to the system were now required.

By Federal Agent Alan Scott

"Ultimately the credibility of, and public confidence in, our justice system is at stake if reforms in this area of the law are not realised," Attorney-General Darryl Williams wrote in his opening address to the Conference on Court Rules and Procedures in Criminal Cases hosted by the Australian Institute of Judicial Administration in Brisbane in July.

Mr Williams singled out lengthy criminal trials as an area of concern and listed the following issues as having an adverse impact on the trial process:

• Significant lack of effective pre-trial procedures.

• Overloading of indictments.

• The rule against the prosecution splitting its case (that is, the rule that the prosecution must lead all its evidence in chief and is not allowed to introduce new material after the defence examination).

• Unnecessarily long and confusing examination and cross-examination of witnesses.

Statistics presented to the conference indicated that despite some procedural reforms to court rules recently, the length of the average criminal trial in Australia is increasing. While most trials take about seven days to complete, the number of protracted trials in excess of 20 days remains consistently high.

Naturally, as the AFP continues to focus on investigating serious and complex criminal activity, the lengthy trial phenomenon will continue to be a part of our work environment.

The Deputy Commonwealth DPP in Victoria, Mark Pedley, presented a paper which argued that lengthy trials invariably involve complex legal issues which tend to make them immune to procedural reforms which are more applicable to matters presented in the lower courts.

He said the main problem with lengthy trials is that current court rules and procedures do not provide mechanisms for sorting out the non-contentious matters from those that are in issue before the empanelment of the jury. This outcome could be achieved by a procedural requirement being placed on the defence to provide a general outline of its response to the prosecution case early in the trial, thus enabling a greater focus to be placed on matters which are in contention. This would assist the jury as the tribunal of fact to identify the matters which are important in the trial and deserving of their attention.

Also, the rule against the prosecution splitting its case could be ameliorated to allow the prosecution to lead in detail the evidence which is contested with less emphasis being placed on matters which are conceded by the defence. The savings in court time and reduced inconvenience to witnesses in such a system are clear, while not adversely impacting on the fairness of the trial process.

However, criminal trials traditionally have not had formal processes in place to identify central issues in contested matters — a procedure which interestingly has always been available in the civil jurisdiction. The reason that a limited form of defence disclosure is not a mandatory requirement in Australian criminal trials is linked to the adversarial nature of the system and the notion that the prosecution bears the onus of proving its case. This means that the foundations of our current system are grounded in a culture of combat as opposed to cooperation.

Nevertheless, there are some historic legal practices that should be qualified and refined in the overall interests of the community and the administration of justice. A requirement on the defence to indicate its general response to the prosecution case may well be in this category.

The Commonwealth DPP, Brian Martin QC, told the conference that in his view the onus is on opponents of ‘defence disclosure as the norm' to demonstrate why it would be inconsistent with the underlying notions of a fair trial. A convincing argument against disclosure is yet to be made, he said.

Victorian reform

While most jurisdictions have experimented with measures to reduce the length and cost of criminal trials, Victoria has enacted the most detailed regime in the Crimes (Criminal Trials) Act 1993. The Act provides a framework for identifying contentious issues in criminal trials and facilitates defence and prosecution disclosure.

However, while this legislation has assisted in the resolution of some issues in complex trials, its provisions are not mandatory and experience has shown that trial judges invoke the full scope of the Act only on rare occasions.

However, the guest speaker, Michael Hill QC, stressed that in contemplating legislative reform to court rules and procedures, any ‘success' should not be measured merely against rates of conviction. Just as the AFP's vision ‘to fight crime and win' does not necessarily mean that we always achieve a conviction (rather, that we optimise the result within the framework of the criminal justice system), procedural law reform should not lose sight of the constitutional imperatives which underpin a fair trial.

Mr Hill observed that it was easy to be seduced by the ‘quick fix' to these issues and enact reforms which go beyond the problem itself. He said many of the English reforms in the period towards the end of the Major Government fell into this category, such as inferences drawn from a suspect's silence when interviewed by the police and later at trial. However, in relation to defence disclosure, Mr Hill agreed that a limited form of disclosure covering alibi, claim of right, duress, mental incapacity, self defence and lack of specific intent have enhanced the conduct of criminal trials in England and Wales.

The Commonwealth DPP urged the conference to adopt reforms for all Australian jurisdictions based on the Victorian model provided that they entail limited defence disclosure of contentious issues as a mandatory requirement with the addition of effective sanctions for non-compliance.

Committals

While the committal was designed to test the strength of the prosecution case through disclosure, it has been criticised by many legal commentators as no longer serving its original purpose. These criticisms include the length and cost of committals as well as a lack of rules which establish the extent to which witnesses can be cross-examined. Additionally, legally aided cases sometimes exhaust funding on protracted committals and leave the crucial trial phase unfunded. These issues have led to the abolition or refinement of committals in some jurisdictions.

A common theme emerging from the conference was a need to restrict the committal process to the important issues with the court assuming a more active role in controlling the proceedings.

Police practices

Conference participants raised the issue of police practices and the critical role the police play in the investigation and charging phases. It is well known that some Royal Commissions and Reports of Inquiry in the United Kingdom and Australia have adversely commented on what Michael Hill QC termed the ‘institutional attitude of the police'. Federal Agent Mick Keelty told the conference that it was clear that no excuses could be made for the bad police practices of the past. However, what remains important for contemporary policing are the changes to work practices now taking place, including much greater scrutiny of police integrity and a greater emphasis on the rights of the individual through re-skilling and training initiatives.

In relation to the overloading of indictments which the Attorney-General highlighted as a problem at the beginning of the conference, Mr Keelty outlined some recent AFP initiatives which had reduced the number and complexity of indictments. He detailed the implementation of a ‘surgical strike' of evidence in some fraud investigations which has resulted in a reduced amount of the available evidence being the subject of a criminal charge.

In a computer sales tax investigation in Northern Region recently, the team on the case examined a small slice of the voluminous evidence, only presenting to the court the general pattern of the alleged criminal conduct. Not only was the court result a satisfying outcome but there was a noticeable reduction in subsequent breaches of sales tax law relating to the computer industry, demonstrating that some form of general deterrence had taken place.

The future

The Attorney-General's address in opening the conference said that Australia needed an affordable and intelligent criminal justice system that could adapt to accelerating social change while maintaining its essential integrity. Whether such a system is possible was the subject of wide ranging debate at the conference.

The consensus appeared to be that while ensuring that criminal proceedings are fair to the accused, there was also concern that the process needed to be more efficient with greater attempts to provide the jury with the best possible assistance.

Reform in the area of limited defence disclosure at trial, greater judicial control of cross-examination procedures and reforming police practices were generally accepted as desirable.

However, in closing the conference, Chief Justice Phillips from the Supreme Court of Victoria indicated that legislative reform to rules and procedures was not enough to address the costs and inefficiencies associated with criminal trials. He urged a change in the culture of all participants in the system to shift the emphasis from adversarial confrontation towards cooperation.

This need for change extended from the police involved in the investigation and charging process to advocates and judicial officers involved in the trial. Until this cultural shift was made, the Chief Justice suggested that any legislative reforms would only partially assist in resolving the issues.

The AIJA plans further conferences next year on the issue of reforming court rules and procedures.

(Copies of the papers delivered at the conference are now available through the library at the AFP College in Barton).


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