CRIMINAL TRIAL REFORM CONFERENCE

It then went on to identify reduction in criminal trial delay as being the improvement that it sought to bring about, adding the rider that it sought to do so without unfairly impacting on the right of a defendant to a fair trial. It said that the work had been conducted in the context of the adversarial system and upon the fundamental premise that an accused is not to be compelled to answer questions or to assist the prosecution in proving its case.

2. For any system of pre-trial procedures to be effective, there are factors that can be described as essential pre-conditions and factors that are desirable pre-conditions.

2.1.If pre-trial procedures are not to impact unfairly on the right of a defendant to a fair trial then the procedures must not exacerbate the already significant imbalance in resources between the defence on the one hand and the prosecution on the other. Only the most one-eyed observer would suggest that there is not already a significant imbalance in resources available to an individual defendant as compared to the prosecution, particularly when regard is had to the fact that the prosecution resources encompass not only those of Directors of Prosecutions, but also of police.

3.(a) Before any pre-trial procedures can be effectively undertaken the prosecution must have fully, and as far as possible, finally chosen the indictment, the particulars and the case upon which it proposes to proceed against the defendant. For the defence to have any confidence in the process the prosecution must be fixed with its case unless it shows that additional material wasn’t available to it with reasonable diligence prior to the time of identification of its final position.

(b) There must be proper representation (at least solicitor, and preferably solicitor and counsel) available to both sides from the commencement of the pre-trial process.

4.(a) There should be consistency of representation throughout, and to this end the suggestion in the paper of the desirability of the certainty of starting dates for trials is an important factor. Running lists make for uncertainty of representation, other than for trials listed number 1.

(b) Contrary to the suggestion in the paper that specific judges should conduct pre-trial hearings, the most effective method is for pre-trial hearings to be conducted by the judge likely to do the trial. This will be more readily achieved if fixed dates are provided for trial. Of course, the reality is that fixed dates are unlikely ever to become part of the criminal trial process, because of fear of judges being unoccupied for periods of time. The need for the pre-trial hearings to be conducted by the likely trial judge is clearest in respect of decisions on issues such as separate trials and admissibility of evidence.

5. I now move to consider the proposals identified at pp.8 - 11 of the Executive Summary.

6. As a general proposition I support the idea of compulsory pre-trial régimes under the control of the Court. However the proposals as a whole are open to serious criticisms:

(a) They seem born of experience in long and complex trials. It has to be remembered that the majority of trials take a week or less, a great many of them around two to three days.

(b) What is proposed creates an enormously bureaucratic system significantly increasing costs in all but the most complex trials. This will simply shift costs from one budget to another. It will certainly increase the burden on privately funded litigants, and, one would have thought, on legal aid budgets and therefore will impact unfairly on both legally aided and privately funded defendants. Much of the conduct of the case will shift from the Court to paperwork: a significant amount will be generated by the proposals and the paperwork will have a critical bearing upon the conduct of the trial. It is in a sense the introduction of pleadings by another name.

7. This is an area where imbalance in resources will be seen. Legal Aid often struggles to provide proper resourcing for the conduct of the trial, let alone for the conduct of pre-trial pleadings. I have been made aware of a case in Queensland where Legal Aid was refused to call a pathologist at a murder trial where the pathologist had provided a report showing that the Crown pathologist's theory on the nature of the instrument said to have been used was clearly wrong. This, in turn, was of great significance in dealing with the issue of whether a confession was made as claimed by the police. If resources are not available for issues such as this, how are they to be made available in the current funding climate to deal with the sort of pre-trial program contemplated by the working group's report?

8. The proposed system will heavily favour the prosecution who will be able to gear up to conduct the procedures in bulk, whereas defence solicitors, particularly smaller firms, will find it very difficult to comply with the procedures and at the same time contain costs to make it viable for people to pay for their own representation.

9. The system proposed is predicated upon prosecution compliance with an obligation to provide a final case statement. However, a reading of the material makes it plain that what is called a final case statement is no more than provisionally so. The proposal contains sanctions set out in recommendation 32 (p.10). What is proposed is that the prosecution should only be entitled to lead the evidence if a reasonable explanation for its late production is provided or the interest of justice otherwise required that the prosecution be permitted to lead the evidence. Any defence lawyer seeing that phrase knows that if it is thought that the proposed evidence will have any bearing on the outcome of the case, it will be admitted.

10. This concern is confirmed by the committee's statement at p.48 of its report:

"As mentioned the prosecution should only be entitled to lead the evidence if a reasonable explanation for its late production is involved, or the interests of justice otherwise require that the prosecution be permitted to lead the evidence. We are firmly of the view that if a refusal of a request by the prosecution to lead such evidence might result in an acquittal, in the absence of special circumstances such as incurable unfairness to a defendant or gross failings by the prosecution the interests of justice would almost inevitably require that the Court permit the evidence to be led."

11. This in effect means that if the evidence is important it will be admitted, which makes nonsense of a proposal which is based on the prosecution providing, as a first step, a final case statement.

12. If such a system is to be introduced, it should be that the prosecution is limited in leading further evidence to circumstances where they can establish that the evidence would not have been available to a diligent party acting with a knowledge of the case. The term "party" with respect to the prosecution should include both prosecuting lawyers and police officers. In the absence of such a stricture there will be no real pressure on prosecutors, and more particularly upon police, to be vigilant to ensure that all relevant material is brought forward for the final case statement.

13. Recommendation 34 proposes that a defendant who declines to co-operate in the pre-trial process suggested, should be prevented from calling the evidence, or being able to cross-examine on the topic if a reasonable explanation for the failure to identify the defence during the pre-trial process is given or the interests of justice otherwise require that the defendant be permitted to lead the evidence. In my view this is inconsistent with the stated fundamental premise that an accused should not be compelled to answer questions or assist the prosecution in the proving of its case. What is in fact being done is to require an accused to answer questions about his defence on penalty of being refused to be allowed to run that defence if he does not identify it. If a system of defence disclosure is to be adopted the proper encouragement should be that set out in recommendation 33, namely that a defendant who co-operates in the process, but is nonetheless convicted, should be entitled to a discounted sentence. There should be consequence for failure to co-operate.

14. None of the above is to suggest that there should not be a system of case management of trials, but rather to suggest that there should be a more flexible approach than that in the proposed system. There should be held within a reasonable period (not less than a month after committal) a pre-trial conference or a directions hearing presided over by a judge who supervises the listing process in the particular jurisdiction, or who assists the supervising judge. Prior to, or at that conference/hearing, the prosecution should provide a brief overview of the case to assist the trial judge. The defence should have the opportunity to identify additional matters or matters in the prosecution statement which it disputes.

15. At that hearing/conference, fundamental issues, particularly those that affect the length of the trial, should be identified:

(a) The date when the final indictment, particulars, and Crown case statement is likely to be provided and Crown disclosure obligations completed;

(e) Where known, whether it appears that there are matters which should be decided before the trial date: questions of law and procedure, including such matters as separate trial, and mixed questions of fact and law which are for a judge alone to determine. Dates should be set for the disposal of those matters;

(f) This would be an appropriate time at which to identify cases requiring closer management or supervision either because of length or complexity, or a combination of these factors. At this hearing directions, or preliminary directions, in respect of the trial can be given.

16. I support the proposal that lawyers should be required to advise clients of pre-trial procedures which are available and to bring to the attention of the defendant the advantages said to be available to someone who co-operates in the process. In any particular case this obligation should run to identifying for a defendant matters which might properly be the subject of co-operation such as the making of admissions and the indication of defences.

17. When the prosecution delivers its final statement, a list of admissions sought should be served on a defendant or legal advisers. Co-operation in this regard should be a matter, which is identifiably taken into account on sentence.

18. Recommendation 30(iii) suggests a requirement that the defence give notice of certain specified defences. This, to some extent, reads like a prosecutor's wish list. Whilst there is merit, in terms of reducing trial length, in requiring advice to be given to the prosecution of defences of alibi or defences which rely on expert evidence, particularly including those which relate to impairment of mental responsibility, it is difficult to see how the aim of reducing criminal trial delay is greatly advanced by requiring a defendant to notify the Crown of defences of self defence, claim of right, duress or intoxication. These are matters which often usually will, to some degree or other, identify themselves on the material. To require their identification offends the stated aim of bringing about changes without compelling the accused to answer questions or assist the prosecution in proving its case, without necessarily providing any reduction in trial length.

19. Recommendation 30(v) suggests a requirement that the defence give notice of certain evidentiary issues. I don't dispute a requirement to notify which surveillance witnesses are required, or whether the admissibility of charts etc. is in dispute, but I cannot see why defence lawyers should have to do prosecutors’ work on matters such as continuity of exhibits, or accuracy of charts, or as to the accuracy of transcripts.

CRIMINAL TRIAL REFORM CONFERENCE

Session 4

PRE-TRIAL PROCEDURES