The impetus for change

The impetus for many of the proposals to reform the criminal trial is the perception that criminal trials are getting longer and some of them (according to some judges and commentators) out of control. The effect upon judges, juries, witnesses and of course the public purse is said to be obvious. The answer is said to be simple - defence disclosure will shorten criminal trials, the prosecution will be relieved from proving matters not in dispute and the trial judge will know what the case is all about and be accordingly able to control examination, cross examination and the course of evidence.

All trials?

Originally it was only complex white collar criminal trials that were targeted for reform. In the United Kingdom, Lord Roskill’s Fraud Trials Committee Report in 1986 laid the basis for the Criminal Justice Act 1987(UK) and here the Australian Institute of Judicial Administration (AIJA) commissioned a report titled Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure from Associate Professor Mark Aronson, University of NSW which was presented in 1992. [2] The Australian Standing Committee of Attorney’s-General (SCAG) considered the proposed reforms at its meeting in August 1992 and made in principle decisions, leaving each jurisdiction to develop its own legislation. Victoria enacted the Crimes (Criminal Trials) Act 1993 (Vic). That legislation was, like its UK counterpart, considered a failure.

Whereas it was once thought possible to radically change the rules with respect to complex cases[3]as opposed to ordinary cases, any such inhibition has now been effectively swept away. The Working Group’s report is aimed at all criminal trails, as is the new Victorian legislation [4]. In my view this is both philosophically and practically correct.

Are trials really longer?

Returning to the impetus for change, it should be noted that it is always easy to produce statistics to show that trials are longer today than they were years ago and that the profession is to blame. Care must be taken when dealing with proposals such as those foreshadowed here that we are not spooked into far reaching reform in the search for substantial savings when in my view such savings are not likely to be necessarily delivered in the vast majority of cases.

There are many reasons why trials take longer today than they did before. Firstly, the complexity of matters now capable of being investigated are it is suggested greater than before. Just as modern technology has impacted upon the capacity of the criminal to commit sophisticated crime so too has that same technology enabled offences to be detected and investigated where previously they may not have been. This is so particularly in the fraud and drug areas. It is no coincidence that it is these trials that are testing the patience of many observers. A simple illustration is to be found in the increased use of telephonic and computer based communication and the corresponding increase in the use of sophisticated audio and visual interception techniques. Many drug trials now have hundreds, if not thousands of hours of audio and video evidence. Secondly, sophisticated forensic investigative tools are now utilised at many levels of the investigative process. Thirdly, we have a proliferation of procedural and evidentiary rules and in many areas our substative law has become most difficult.

In short, trials have become longer because the means by which many crimes are committed have become more complex and the means by which they are investigated and proved have become equally complex. So too there is the increased complexity of substantial and procedural law. It has also been suggested that some trials are longer because the quality of legal representation on both sides has fallen and because some judges are inexperienced in trial procedures.

There is no doubt as well that the criminal trial is cumbersome and little has been done to make it “user friendly” for juries. In many jurisdictions there continue to be arguments about charts and other aides to assist in the comprehension of complex evidence. There are no uniform standards for jurors to have access to note taking facilities, transcripts and the like. Finally much time and consequent expense is taken up with the proof of matters not in dispute. Much should and can be done to alter this position.

Many cases in our courts are conducted with great efficiency. They are usually conducted by experienced and well prepared practitioners before experienced judges who are prepared to take an active role in the management of the trial. Much can be achieved if we ensure that the participants (particularly the trial judge) are experienced and well prepared.

Remove any one of those components and nothing will be achieved. A client bent upon wreaking havoc in the trial, can. Some counsel are either unable or unwilling to limit the issues. Much will depend upon the level of prosecution disclosure and the competence and confidence of defence counsel. In the case of legally aided matters even where counsel are sufficiently competent, nothing will be achieved unless counsel are well prepared. This in turn depends in most cases on the level of funding and court listing procedures.

Most counsel who are competent and well briefed will see it in the interests of their client to run efficient and relevant defences. They will identify the issues in dispute and facilitate the proofs of all other issues. They will put the defence before the jury at the earliest possible opportunity – usually after the prosecutors opening address.

The cases which are of concern have none of the features just mentioned. There are accused (both privately funded and legally aided) who simply instruct their counsel to leave no stone unturned. There are also counsel who irrespective of any such instruction see it as part of their duty to test every aspect of the crown case.

Defence disclosure is an interference with the right to silence

At the heart of any proposal involving the streamlining of the criminal trial is some from of defence disclosure. A requirement that an accused should make disclosure of his/her defence or elements of it in the pre-trial stage or at any time before the crown closes its case runs squarely into what is loosely described as “the right to silence.” The right to silence it is said “is firmly entrenched in our common law”[5]

The common law rule (where it has not been abrogated by statute) protects the accused from being required to co-operate with those who are investigating his or her conduct and, in the context of the criminal trial, encompasses the right to decline to indicate a line of defence before the close of the prosecution case or to make any admission of fact that may excuse the prosecution from proof of that fact. The right to silence carries with it the correlative right that the accused should be immune from adverse comment for exercising the right.

Traditionally this has meant that the accused in a criminal trial was not obliged to make any answer to the allegations until such time as the Crown had closed its case. Even then the accused was entitled to remain silent and in some jurisdictions that fact was not capable of being made the subject of adverse comment to the jury.

This is not to say that such rights were exercised by accused persons without trepidation. There always were and remain real and forensic disincentives to an accused not participating in the trial process to the extent at least of volunteering defences and or subsequently giving evidence. No one would deny that a defence changed mid-trial or a failure to give evidence when facts or matters peculiarly calling for an answer were obvious, would go unobserved by a modern jury whether they were instructed to do so by the trial judge or not.

In my experience, most competent and confident counsel seize the opportunity as early in the trial as is permitted to properly put the defence before the jury so that it does not come as a surprise and therefore perhaps lacking credibility. Most defence counsel are conscious of the impact a prosecutor has on a jury during the opening address and the subsequent building of the crown case. This is particularly so in complex cases where the crown case is necessarily lengthy and usually well structured.

Clearly where defence counsel are prepared to open the defence immediately after the prosecutor’s opening, much has been achieved. At the very least the judge is appraised of the issues in the case and to a fairly substantial degree the prosecutor should be able quite safely to shorten the witness list. One would imagine that a prosecutor who had trimmed the witness list in reliance of a defence opening would not be precluded from re-opening the crown case to accommodate a defence being proffered that was different to that opened.

What should be disclosed

“Criminal procedure is, and should remain, fundamentally accusatorial, that is the state accuses the citizen of a criminal offence and must prove guilt without the assistance of the accused. While there is a public interest in improving the efficiency of criminal proceedings by reducing delay and costs, this must proceed in the context of the accusatorial framework”[6]

“The critical features of the disclosures that we propose be made by the defence are that requirements that the defence disclose what is not in dispute and respond with regard to specific defences. Such requirements relieve the Crown of the need to prove matters not in dispute, but do not detract from the essential character of the accusatorial system. Other than alibi and expert evidence we do not suggest that the defence should be required to disclose the evidence which it proposes to call. It must be recognised that a defendant should not be expected to identify the defence case to the same depth and breadth as the Crown ” [7]

In short that the parties and the judge will know what the real issues in dispute are and that the trial will proceed as smoothly as possible. The twin goals of efficiency and certainty are achieved. Nevertheless the requirements constitute a significant departure from the traditional position and in recognition of this fact the Working Group by recommendations 26 (requirement for a prosecution case statement) and 27 (prohibition on the prosecution changing its case) sought to ensure that the prosecution could not profit forensically from early defence disclosure.

The Working Group did not see fit to recommend the implementation of a scheme of sanctions for failure to cooperate other than by recommending a scheme of definitive and publicly identified sentencing discounts for cooperative accused. Sentence discounts for cooperative accused factually translate into penalties for non-compliant accused. It is clear that the right to silence has by these provisions suffered a significant erosion. However, in the context of other statutory and common law incursions[8] it is not an erosion that significantly interferes with the integrity of the accusatorial system.

When should defence disclosure take place?

One view proffered is that defence disclosure would be most beneficial if it occurred as soon as possible after the laying of the charge. There would be potential for the saving of significant police and prosecution resources. If very early in the process a binding admission can be secured from a fully informed accused, there may be very substantial savings made. Much of course would depend upon the capacity (let alone the willingness) of the accused to consider the full ramifications of such a step and his or her lawyers would be similarly anxious about the process. A comprehensive form of prosecution disclosure would in any event be a necessary prerequisite.

In my opinion it is highly unlikely that an accused person properly advised would be in a position to make meaningful admissions at a point in time when there still could flow significant savings to the investigative agency. By the time charges are laid and prosecution discovery is made the vast bulk of the investigative process is or should be complete. The savings, if any, are to be found at the trial.

Unless the rationale for defence disclosure is to enhance the prospects of conviction or to eliminate or lessen the chance of “technical defences” succeeding, the only time when legitimate case management techniques should be permitted is at or shortly before the commencement of the trial. It is here where there is the real likelihood that the accused, through counsel properly seized with the trial will best be able to contribute to the achievement of legitimate pre-trial case management aims.

Specific Defences, Expert Witnesses and Recommendation 30(v)

As a matter of principal it is hard to justify the requirement to disclose a specific defence in terms other than that of assisting the prosecution although in practice the disclosure of the issues not in dispute would in almost all cases, with the exception perhaps of duress, sufficiently identify the relevant defence.

Similarly again with the exception perhaps of duress and a claim of right (including statutory corporate defences), it is difficult to imagine the case where theses defences would not be readily apparent from the facts of the case. Duress falls into a somewhat different category and the basis for its disclosure is unclear as is the requirement to disclose expert evidence.

In the case of expert evidence there are two scenarios. In cases where the prosecution relies upon expert evidence it will often be the case that the defence may not finally decide whether to call a rebutting expert until after the prosecution expert has been cross-examined and perhaps even after other evidence (prosecution and/or defence) is concluded. As long as the requirement only becomes operative once it is “proposed” to call the witness no harm is done. Otherwise it would be quite unfair to require the defence to disclose its experts witness statements. The second scenario is where no expert is called as part of the prosecution case but the defence seek to rely on expert testimony. In such circumstances it is difficult to identify a principle behind the requirement to disclose other than to advantage the prosecution.

A new way for criminal barristers

I finally want to say something generally about the impact of a the introduction of a system of pre-trial hearings on barristers practising in crime. Both the Working Group model and in particular the Victorian Act envisages a continuum from committal to trial with the case being managed by a judge of the trial court. There is, I believe, a universally held view that the Victorian legislation will not work unless counsel briefed for the trial are involved in the directions hearings. Directions hearings are conducted outside ordinary court hours to facilitate the attendance of counsel who hold the trial brief. The requirements proposed by the Working Group and even more so the requirements of the Victorian legislation are serious and must be undertaken with great professional care. The consequences for getting it wrong can be quite severe. I have a concern that criminal barristers with heavy trial commitments and particularly those who practice at the lower financial end doing legally aided work seldom have great deal of time or for that matter energy to remove themselves from the pressure of one trial to undertake sufficient preparation in another trial to meaningfully deal with one or more pre-trial conferences. Even the shortest trial may involve the barrister in significant preparation for a pre-trial conference. Care must be taken to contain these conferences to cases that really need them otherwise savings at the trial end will quickly be soaked up by the cost of the pre-trial conferences and the preparation for them.

Endnotes

[1] This paper is a discussion paper only. It repeats in most part the views I held and expressed in “Lessons for the Criminal Justice System”, Civil Justice Reform: Streamlining the Process, Litigation Reform Commission, Brisbane, 7-8 March 1996 and in a paper co-authored with Justin McCarthy and entitled “Reforming Legislation or Changing the Culture” (Paper presented to the National Conference on Investigation and Prosecution of Complex White Collar Crime, 15-17 June 1992