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Australian Federal Police - Platypus Journal/Magazine |
Debating a disclosure regime
Arguments for and against a disclosure regime in the courts have been debated in both the legal and civil rights circles for many years, but in September last year the justice system in Victoria followed in the footsteps of the United Kingdom by introducing disclosure provisions similar to those adopted in the UK in the mid-1990s. Adding weight to the argument for such reform is the problem of chronically overloaded courts and the burden of spiralling legal costs exacerbated by lengthy court process.
The AFP's Melbourne Office has been operating under these new requirements as they apply to Commonwealth offences committed in Victoria and Federal Agent Patrick Berends, who is attached to the Family Court in Victoria, prepared the following overview of a paper expounding the benefits of the disclosure regime. The paper was delivered by the Director of the Office of Public Prosecutions in Victoria, Geoff Flatman Q.C. at the 7th Biennial Conference of the Criminal Lawyers Association of the Northern Territory in conjunction with the Criminal Law Section of the Law Institute of Victoria last year.
There is a perception by some that the disclosure requirements imposed on the accused under the Crimes (Criminal Trials) Act 1999 (Vic.) which began on September 1 last year, will result in more accused being found guilty because of an increase in wrongful convictions.
However, the alternative view offered in this summary is that if the new provisions result in more accused being found guilty, it is probably because the current bias favoring the accused is being redressed, even if only to a limited extent.
Under the disclosure provisions a significant pre-trial disclosure regime must be provided by one or more of three processes: a post-committal conference; a standard exchange of information; or individual case management.
After an accused is committed for trial, the parties may agree to a conference to define the issues in dispute (s.26(2)(b)). Where the parties agree to be so bound, then this is recorded and signed off. This will be the expected procedure for cases where the issues are apparent at an early stage.
In the absence of a post-committal conference, the Act prescribes certain information that must be exchanged before trial.
The Crown must: give the defence a summary of its opening 28 days before the trial; and, serve a notice of pre-trial admissions setting out the matters that it considers uncontentious (s.6(1)(b)). Then, if the defence agrees, the Crown is not required to call witnesses to establish that defence.
The defence must file its response to those documents within 14 days. That response “must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken” (s.7(2)). However, it need not stipulate whether evidence or identity of any defence witness will be given, except for expert witnesses (s.7(4) & 9). It is expected that most cases will be dealt with by this method.
The Act also provides that where a party intends to raise a legal point, it must notify the Court at least 14 days before the trial and provision is then made for such issues to be determined before the trial begins (s.(10)).
This process is for lengthy, complex or very disputatious cases and the court is given a broad discretion regarding the type of directions it may order. (s.(5)).
Where the accused does not comply with the disclosure obligations, the court's sanctions now include: costs (s.(24)) which may also be awarded against the Crown or against either side's lawyers (s.(25)); adverse comment to the jury (s.(16)).
An accused's failure to comply with the disclosure requirements may also result in a heavier penalty on the basis that it shows a lack of remorse (s.(37)).In summary, the accused must show, to a far greater extent than previously, their defence.
By participating in identifying the issues that are genuinely not disputed, they effectively have disclosed the nature of that defence.
The main reason for the changes was the unreasonable delay in presenting cases and the inefficient and therefore costly conduct of trials. Such delays and inefficiencies restrict access to the courts and cause hardship to victims, jurors, police, the accused and the community.
The main delaying factors included: calling witnesses to prove formal matters; calling witnesses to establish issues which were not substantially contested; and unnecessary and prolonged cross-examination of witnesses because the advocate does not know which issues are in dispute.
Criminal trials have become enormously expensive and drawn out. From 1972 to 1987, the average length of Victorian trials increased three-fold, from three days to 8.8 days (Criminal Trials Consultative Committee, Criminal Trials in Victoria, Jan. 1999,1.) and the cost to the community to about $15,000 a day (The Age, May 7, 1999 — The Attorney-General in Victoria estimated the cost of a three-month trial at $1 million).
In ascertaining the truth in a trial, an essential pre-condition under our adversarial system of law is that the two sides are roughly equal in knowledge, and in particular, knowledge of their opponent's case. However, for many years the reality has been that the Crown has had to provide all relevant information to the defence, such as through witness statements (including any prior inconsistent statements), copies of exhibits, and particulars of each offence. No corresponding obligations are imposed on the accused. The result now is that it is doubtful if the search for the real truth in a criminal trial can any longer be considered a genuine contest.
The opposing argument, outlined below, is that the accused should not be required to do or say anything.
The criticisms of accused disclosure are similar to arguments for the Right to Silence.
The new provisions are said to encroach upon the fundamental principle that the defence should not be compelled to participate in facilitating a conviction. The Act does not violate this principle as the accused is not required to reveal or to do anything not already required to be done; disclosure is simply accelerated so that the main arguments must be advanced or summarised before trial rather than incrementally through it. When a criminal charge is contested the accused has to do something to resist the Crown, whether it is to discredit a witness, deny an element of the offence or claim a positive defence such as self-defence or duress. All that the disclosure requirements do is to hasten what the accused was going to do in any case — it is simply a change of procedure.
If the underlying objective of the legal system is to find the truth while ensuring that an innocent person is not punished, it is difficult to understand why it would be objectionable to ask a person to provide an explanation for a set of facts which appear to be incriminating.
Another argument is that requiring the accused to take some positive steps in the trial process is to presume that the accused is guilty and consequently, that the onus on the prosecution to prove its case is, to some extent, alleviated.
This criticism is flawed in its assertion that the legal duty to do something implies culpability. The law imposes numerous legal obligations on people to perform their civic duties, most of which are unconnected to fault or blame. It is argued that the accused are in a different situation since failure to discharge their duty may result in deprivation of liberty. However, their situation is no different to that of other players in the legal system: witnesses must attend court on receiving a summons; victims must submit to cross-examination at committal and trial and none of them are considered guilty. These duties are imposed because our criminal justice system works best if an obligation to participate in court proceedings is imposed on everyone and for the same reason. The accused should be required to disclose in advance the nature of their case.
The disclosure requirements undoubtedly impose obligations on an accused beyond those required of a witness and it has been argued that it is unjust to impose them merely because the accused has been charged. However, the practice in our society is that people are not selected at random and arbitrarily put on trial, rather, the disclosure provisions come into effect only after certain procedures have been carried out. Firstly, the police must satisfy a magistrate that there is a prima facie case against the accused and secondly, an independent arbiter must be satisfied that the case has a reasonable prospect of conviction. That test is resolutely applied through the prosecuting guidelines used by all Australian prosecuting agencies.
Thus, every accused facing a jury trial not only has a case to answer but also has at least a reasonable prospect of conviction. The level of participation required from the accused is not excessive. As happens in civil cases, defendants in a criminal trial file a defence regardless of the merits of the case against them. This is not because the accused is no longer presumed innocent but simply, given that the accused will be tried, such an obligation will promote other important objectives. Critics have failed to show how the disclosure provisions violate in any way the prohibition on convicting the innocent.
If disclosure results in more accused being convicted, it doesn't necessarily follow that innocent people will have been convicted. It may be that these provisions result in more convictions being made because defence counsel cannot tailor their case around the inadequacies of the prosecution brief.
The burden of proof still remains with the Crown — a burden which is unaffected by any of the newly introduced rules or procedures which govern criminal trials. Sometimes such changes, such as loosening the rules of evidence, can make it easier for the Crown to discharge the burden of proof, but this does not diminish the threshold of the burden or in any way project it onto the accused. Under the new regime, the accused must proactively participate in the trial process and while critics might claim that this coercion somehow implies fault, it remains that legal obligation is very different from culpability.
It has been suggested that under the new provisions, witnesses might become aware of the defence and tailor their evidence accordingly. If this means that witnesses fabricate evidence, then they face the penalties of perjury. If it means that the defence can no longer take witnesses by surprise regarding the subject matter of questioning, then this is an advantage, not a drawback. If witnesses appear less credible because they are taken by surprise, this detracts from the purpose of the criminal justice system which is to ensure that wrongdoers are found guilty. Tactics used to give the incorrect impression that a witness is untrustworthy frustrate the search for truth and should be eradicated.
In any case, a witness is required to supply sworn statements and is subject to cross-examination at committal, making any such tailoring most unlikely. Because the Crown is obliged to disclose all its evidence before the accused has to disclose its defence, the accused will always be in a better position to tailor a defence if it is so minded whereas the Crown's witnesses are already committed to their evidence by prior statement and cross examination.
It has been claimed that defence disclosure will cause police to manufacture evidence to meet any weaknesses in the Crown case. However, the law remains that the Crown is still obliged to prove facts to make its case. If evidence can be fabricated so readily, then perhaps we should abandon our adversarial system altogether.
The purpose of criminal law is to control socially harmful behaviour while ensuring that the innocent are not subject to criminal sanctions. To achieve this, the criminal justice system imposes various contingent ideals and rules of practice, such as imposing the onus of proof on the Crown, setting the standard of proof at beyond reasonable doubt, and enforcing rules regarding the reception of evidence. These contingent ideals and rules should not be placed above the principles from which they are derived.
The disclosure principles should be judged against the ultimate purpose of the criminal justice system rather than its subordinate rules or practices. Accordingly, the relevant issue is whether they facilitate better protection against crime for the community.
The disclosure principles may result in more people being convicted of criminal offences simply because the prosecution will be informed earlier of the accused's line of attack and will be able to forestall any attempt by the defence during the trial to seize upon a technical flaw in the Crown case and secure an unfair acquittal. Increasing the conviction rate for people who have committed serious criminal offences can only serve to better protect the community. From the defence perspective, early identification of a defence ought to lead to greater professionalism by counsel.
Practices which reduce the cost of determining criminal liability must be implemented, otherwise the harm to society in proscribing crimes and punishing those convicted of criminal offences becomes greater than the benefits flowing from their enforcement and prevention. It is illogical for a society to spend $1 million for a crime costed at $50,000.
The inordinate expense and time involved in criminal trials was the subject of a report recently by the Australian Institute of Judicial Administration (C. Corns, Anatomy of Long Trials (AIJA Inc. 1997), xiii, 112-4) which favoured accused disclosure. The report noted that: “The single most important consideration in any strategy to reduce the length of long criminal trials is the development of an effective pre-trial hearing procedure to act as a framework within which to minimise the issues in contention and to minimise the evidence to be relied on at trial” (Ibid., 111). These developments are far from sudden viz.: Shorter Trials Committee “Report on Criminal Trials” 1986; Victorian Crimes (Criminal Trials) Act 1993; Best Practice Model for the Determination of Indictable Crimes Directors of Legal Aid and Directors of Public Prosecution 1998; and Report Scrutiny of Acts and Regulations Committee, March 1999.
Other benefits of the accused disclosure provisions are: limiting evidence to genuinely contentious matters will save many witnesses from coming to court; the requirement to disclose a realistic defence early on in the trial process would reduce the incidence of ‘hopeless' or desperate defence; and, where trial judges have early access to the depositions and the issues, they then have sufficient time to make legal judgements which are themselves subject to intense scrutiny from Appeal Courts.
The chief and often emotive criticism of these disclosure provisions is that they encroach on the presumption of innocence, but such criticism assumes that there is an inescapable link between a legal obligation and culpability. Interestingly, these critics have not alleged that accused disclosure would result in the increased likelihood of wrongful conviction.
Accused disclosure can be expected to make trials focus more closely on the real issues and as a result, reduce the length of trials and the associated expense. There is a need to consider the positive effect of such changes — changes which would benefit the community by enhancing its right to be protected from harm and ensuring that penalties are enacted against those who inflict it.
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URL: http://www.austlii.edu.au/au/journals/AUFPPlatypus/2000/7.html