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Why would the defence fail to cooperate in the timely and orderly prosecution of cases through the courts? The possible responses to this question are myriad. The defence is playing the system, the accused wants to delay going to prison, the defence is recalcitrant, or not in a position to cooperate due to late funding or inadequate disclosure by the prosecution. I am sure many such reasons will be aired during the course of this conference, much as they were at a similar conference in Brisbane some two years ago.[3] Each and every one of these reasons could probably be validly applied to one or more cases in every jurisdiction. Most of the more cynical ones though are rare. Exceptional cases such as Grimwade and Wilson[4] will come along from time to time, and need to be addressed, however their unique nature means that measures developed to address them will have little general application and consequently result in limited overall reform.

The unexceptional cases, on the other hand, by their very prevalence hold out the prospect of substantial benefits from reform. For this reason the paper will focus on the unexceptional cases, the late guilty plea, the late nolle prosequi, cases with unnecessary extra adjournments, cases which offer small individual benefits but through their very magnitude offer enormous overall savings in time and resources.

In the paper I will discuss various topics including educating the profession, the structure of the criminal justice system and its administration, issues of defence disclosure and the advantages and dangers that disclosure entails, plea bargaining and the vexed question of sanctions for non-cooperation and benefits for cooperation. Most jurisdictions have tried some voluntary reforms in these areas with varying degrees of success. In some jurisdictions reforms have been forced upon the legal fraternity through legislative change.[5] Each of these topics requires careful ongoing examination both to get the most out of them, and to avoid the erosion of existing safeguards which could result in the development of a flawed criminal justice system

Nothing that I propose here will be entirely new. Discussions concerning the reform of the structure of our courts have always been central to their development. Similarly, the particular emphasis I will place on certain areas such as case flow management and the skills and status of key participants have often been raised particularly in the recent past.[6] Why then, after all this discussion has there been so little, if any, apparent improvement in case progression through the courts? Case management, the panacea of the eighties, was expected to substantially cut completion times for criminal matters, yet few jurisdictions have seen any benefit at any stage of the progression of cases through the courts, while some have even reported increased delays.[7] Is this because the reforms proffered are unsuitable or rather that insufficient attention has been paid to their implementation and party participation?

This paper is to focus on the defence and I will do my best not to stray too far into areas that will be discussed in other papers. However, in any discussion of case management infringement upon the topics of other presenters is inevitable. Structural reform requires modification of the practices of all involved, the defence, the prosecution, the judiciary and the courts administration. Changing defence habits will be largely ineffective if not part of overall reform, because the defence are largely, by necessity, responsive in their dealings with criminal matters.

It seems to me that no system of reform will work satisfactorily unless there is general support for it from those who work within it. In particular in the criminal justice system no form of sanction or reward will be effective unless the reforms are supported by the profession. Furthermore there needs to be a change of attitude and approach by the profession to ensure that reforms work in a satisfactory way.

In my opinion there is great suspicion and a great deal of reluctance to embrace reform because there is a belief that proposals such as early disclosure and fast track procedures erode the rights of an accused person to a fair trial. Fair trial in this context means that the prosecution must disclose its case, present its case at trial, and establish a case to answer before the defence is required to make any election about the presentation of the defence case. The view that any reforms which encourage early disclosure, and early discussions about the defence case have the effect of eroding the right of an accused to remain silent until the prosecution has closed its case at trial are misguided.

There may be occasions when an accused person wishes to, ‘keep his or her powder dry’ until the prosecution has closed its case. That decision and election should not be removed by requiring the defence to disclose its case, other than for some limited exceptions, for example, expert evidence and alibi notices.[8]

On the other hand the majority of cases result in pleas of guilty. There is no reason why these matters cannot be dealt with speedily, avoiding unnecessary delay because of inefficiencies, lack of early funding and the attitude of the profession.

A great many trials are decided upon narrow issues which have been identified by the time the matter comes to trial. There is no reason why many of these issues cannot be identified well before the trial. Some of them may be resolved in pre-trial applications, some may be resolved by counsel discussion. Ultimately when the case is tried there will be less time taken with matters not in issue and less jury time wasted by arguments in the jury’s absence.

The starting point for any change in attitude and procedure must be in educating the profession which includes both prosecution and defence, to consider their respective cases at the earliest time. I shall focus on the defence. In my view it is important to recognise that there are significant benefits to the defence in avoiding delay. There are immediate benefits to the accused, being the benefits he or she will receive from the courts for their early co-operation. There is a financial benefit to the accused who is paying for representation. There is a financial benefit for legal aid as it is well recognised that delay means extra cost. The legal aid dollars will go further, more people will have aid made available with the result that a greater number of people will obtain representation.

It follows that a more concerted effort is required to encourage the co-operation of solicitors and counsel who represent the defence. There needs to be a greater concentration in changing the entrenched attitude that co-operation and concession leads to an erosion of fundamental rights.

In my view the senior members of the profession who practice in the area need to be consulted and to be convinced. There should be thought given to education, to the recognition in bar rules and ethical rules of the profession that the profession has a duty to avoid unnecessary delay. There should be a change of approach at legal aid. Sufficient funding needs to be made available at an early stage to ensure that the defence are encouraged and have the ability to prepare their case and advise their client before committal. Solicitors and counsel must be encouraged to concentrate their efforts at an early stage.

The position in South Australia and, I imagine, it is similar in other States is that the defendant is presented to the court shortly after arrest or if on police bail, within approximately two weeks of arrest. A date for the first remand is then allocated.

In South Australia the Magistrates Court sets a date for delivery of declarations about six weeks hence. The defendant is required to answer the charge approximately ten weeks from the first mention. During the period prior to the defendant answering the charge there is an opportunity for the defence and prosecution to discuss the charges, and consider any matters which may resolve the case. However there is no requirement for the parties to resolve issues and more often than not the matter proceeds through committal without any meaningful discussions taking place. Often there may be a number of remands for a variety reasons.[10]

How can we get greater efficiency out of the pre-committal processes? If a guilty plea is to be entered in a case it is desirable if it were entered, or the intention to plead at least indicated, at the first possible opportunity. By the time an accused has reached committal, at least ten weeks have elapsed and countless hours have been spent in the preparation of a case that may never go to trial. It is my belief that although the ultimate aim of all preparatory work must be readiness for trial, the initial focus of both prosecution and defence should be the proximate resolution of the matter.

A procedure has existed for some years in Western Australia which has had some success in the prompt hearing of cases and saving costs. It is designed to streamline the procedure for offenders who do not intend to defend the charge or charges. If at the first remand hearing, which is seven to fourteen days after the first court appearance, the defendant indicates a plea of guilty the prosecution is directed to file with the Clerk of Court and serve on the defendant a statement of facts material to the charge and also give notice of any tape or video tape recording of conversations between the accused and any person in authority. If the accused then pleads guilty the magistrate shall commit the accused to the District or Supreme Court for sentence. The accused is remanded to appear before the General Duties Judge about six weeks hence.

The magistrate orders a pre-sentence report if it is required. I assume the magistrate can order any other reports that may be required. The accused receives a substantial discount on his or her sentence. The case is presented to the District Court with the minimum number of remands both in the Magistrates Court and the sentencing court.

The procedure requires the co-operation of the defence. It depends upon the defendant instructing his or her solicitor at a very early stage of the process that he or she wishes to plead guilty. I do not have any information about the percentage of cases dealt with in the District Court when the fast track procedure is followed.

I suspect that very many cases are not fast tracked because the defendant has not made a decision about their plea, rather than because a defendant has decided to plead not guilty. It is my view that a procedure should be introduced which encourages a defendant and his or her advisers to focus on the case at an early stage.

A procedure could be developed whereby at the first remand hearing if the defendant has not indicated a plea of guilty, the case is further remanded for six to eight weeks to a pre-committal conference. The prosecution should be required to file and serve on the defence a summary of the prosecution case, identifying the key witnesses and summarising their evidence. If requested, a statement of the witness should be provided. The prosecution material is to be served at least twenty one days before the pre-committal conference and any requests for statements made within fourteen days of the pre-committal hearing and statements to be provided within seven days from such request.

The pre-committal conference is convened before an officer of the court who is experienced in criminal law and procedure. It is ‘without prejudice’ and the discussion at the conference is confidential unless the defendant waives confidentiality. The defendant and a senior adviser preferably trial counsel should attend the conference. A senior officer of the Department of Public Prosecutions who is able to make binding decisions should attend. At the conference the Court Officer is to inquire and investigate in detail whether the case can be resolved. Any avenue for pleas to lesser charges should be considered. If it is clear that the case will proceed to trial, then a frank exchange should take place as to matters that can be agreed. Any agreed facts can be negotiated. The conferences should take place at a time when counsel are available. Trial courts in which counsel appear should be encouraged to accommodate counsel who need to attend conferences.

Where an early plea has been obtained in the Magistrates Court most of the work currently being done in the sentencing court, and which often results in numerous remands, should be completed prior to a defendant’s first appearance. All reports should have been ordered, and received. In a perfect system submissions would always be made at the first appearance in the sentencing court. Such practices would assist everyone involved to avoid unnecessary duplication of work.

In South Australia where an accused has pleaded not guilty at committal proceedings they are committed either to the District or Supreme Court where they are arraigned and their case is remanded to a directions hearing. Anecdotal evidence, from all sides, is that a number of these hearings are ineffective and time consuming with no result. Such views vary depending in part upon who appears at the hearing and before whom the parties appear. The manner in which directions hearings are conducted should be reconsidered.

Why are pre-trial hearings considered ineffectual? I believe there are a number of related reasons which could be described as part symptom and part cause. Amongst the profession there is a low expectation as to what can be achieved at these hearings. In part this is habitual, if the parties approach such hearings expecting to get nothing out of them. Related to this is the practice of using junior practitioners to attend these hearings, both for the prosecution and the defence. Junior practitioners have neither the experience nor the authority to make concessions or conclude agreements and consequently no real advancements are made.

One reason why junior practitioners are commonly used for pre-trial hearings is funding. Legal aid funding is focused on the trial with the result that there is usually insufficient money available for the timely briefing of senior practitioners to attend to pre-trial matters. One result of this is that many issues that should and could be determined early on, are only resolved at the door of the trial court and after a good deal of time and money has been spent.

While offering a partial remedy, obtaining the early attendance of senior practitioners will not overcome all the problems of the current pre-trial hearing system. For such hearings to be successful there needs to be continuity and not just of practitioners but judges also. Discontinuity leads to delay through duplication of work. It makes it difficult for all involved to build a cooperative foundation upon which to advance matters whether it be through plea discussions, identification of facts in issue or pre-trial determinations of law. Continuity should be promoted by the courts by making an effort to enable the same practitioners to attend each time. Further the courts should set an example by encouraging judges wherever possible to retain matters which they hear in their early stages.

I agree with the proposals of the Working Group that more efficient use of pre trial rulings are necessary. There are logistical difficulties in a judge determining pre trial questions and that same judge then being available for the trial proper. Consideration should be given to legislative reform which enables a judge to make pre trial rulings and another judge to conduct the trial. Pre trial rulings can be made at directions hearings if appropriate, for example, vulnerable witness applications.

The concept of plea bargaining is disliked by many in the Australian legal profession because of the way it is undertaken in the United States, and a perception that such bargaining is open to very great abuse. On the other hand there is Australian literature on plea bargaining, or plea discussions, which expresses the view that its successful formalisation would result in substantial savings in court resources and an increase in public acceptance of the plea bargaining concept.[11]

It is clear that pre-trial discussions about pleas occur in every jurisdiction. The ultimate goal of these discussions is the determination of the appropriate manner in which a case should proceed, that is the correct offence to be charged, if any, and the bases upon which a plea should be entered. Their effectiveness in achieving these goals currently depends greatly upon the relationships that have developed between prosecutors and defence solicitors and counsel. The more that the lawyers involved trust each other, the more chance there is that a satisfactory outcome for both sides will be achieved.

Many of the difficulties with the current informal processes, lack of effectiveness, the lack of accountability, possibility of uninformed choices being made, and possibility of improper pressure being applied, stem principally from the informal nature of the discussions. In the case of plea discussions where the parties are unable to resolve certain issues, the participation of the court in progressing the discussions may lead to early resolution when currently the discussions fail. It is to be hoped that bringing such discussions out into the light of day may result in improvements in some or all of these areas. At the very least fair and open hearings after the resolution of plea discussions may improve public perceptions about the process. That is explaining to the court the reasons for the parties arriving at a resolution.

Not all of the problems with plea discussions are associated with its informal nature. Some problems stem from the same structural and habitual concerns common to most pre-trial hearing processes. Depending upon the relationship between prosecution and defence plea discussions will vary from almost entirely adversarial to extremely cooperative. Obviously the more cooperative any discussions are the more hope there is of achieving a satisfactory result. Similarly, such discussions can only result in substantive agreements if they are conducted by experienced practitioners with the authority to conclude agreements. It goes without saying that these practitioners will also require full and early briefing if they are to have adequate time and information upon which to conduct discussions.

Currently the majority of plea discussions are initiated by the defence. Perhaps this is so because they perceive that they have more to gain from such discussions. Nevertheless, what this demonstrates is that where the defence perceives there is something to be achieved by discussion, that is there is some incentive to cooperate, they are generally willing to do so. Formalising the plea discussion process to provide for, amongst other things, greater safeguards for the defence is one way of ensuring more cooperation. As with other reforms, there is a need to be vigilant otherwise plea discussions could be just another reason for, rather than a way of, reducing delay.

Another topic which might fit within the plea discussion process is sentence indication. Sentence indication involves a judge giving the defence an indication of what sentence the judge would impose should the accused plead guilty on the information currently before the court. This system was trialed in New South Wales over a number of years in the mid-1990’s. Reviews of the system are mixed and the system has since been abandoned as unsuccessful. Much of the criticism of the system was based on the belief that defence utilisation of the system was dependent upon the judge assigned to give sentence indications. This was believed to have lead to significant levels of judge-shopping so that a far greater number of pleas were obtained upon the basis of indicated sentences where the indicating judge was perceived to be a “light sentencer”.

Clearly achieving a larger percentage of guilty pleas on the basis of disparately shorter sentences is unacceptable. An alternative to such sentence indication might be for the court to allow suggested sentences to be put forward by counsel, by consent, and for the sentencing judge to indicate that that would be the sentence should the accused plead on the facts as they stand. This would retain sentence discretion in the sentencing judge as they would not be bound to accept suggested sentences, yet limit judge-shopping as the identity of the sentencing judge would be substantially less relevant. At the same time it is expected that the obligation on the prosecution to achieve suitable outcomes in the interests of the State would maintain the credibility of the system.

Requiring compulsory defence disclosure, often characterised as a roll back of the defence’s right to silence, is presently being widely debated, both in Australia and overseas.[12] In some Australian jurisdictions there has been legislation compelling a degree of disclosure,[13] and recently the Working Group suggested that the defence be compelled to disclose information in a wide range of areas including notices as to proposed defence, any requirement for formal proof of surveillance evidence, issues of continuity of exhibits, any dispute of transcripts of listening device tapes and disclosure of expert reports.[14]

In general terms I agree with these recommendations however, I do not think that they should be compulsory. Quite apart from questions concerning the constitutionality of compulsory disclosure, such requirements involve a basic shift in conception of what amounts to a fair trial in Australian law.[15] It is a fundamental precept of our law that the defence is, except in certain specified instances, under no burden of proof. Consequently, any moves toward compulsory defence disclosure must be tempered by the understanding that the defence both has the right to require the prosecution to prove its case, and that the defence need do nothing that would assist the prosecution to that end.

Ultimately, in the vast majority of cases much of this information is disclosed by the defence and often it is in the accused’s best interest to do so. Yet, as I have said earlier, there will be times when the defence will, quite legitimately, not wish to reveal some or all of this information before trial. Moreover, there are fundamental difficulties with compelling such disclosure.

In Victoria it has become accepted that requiring the defence to disclose what issues are in dispute often achieves nothing. The standard response to such requests is that all issues are in dispute.[16] Clearly therefore, any requirements for disclosure must be specific. On the other hand requiring specific information to be disclosed possesses risks of its own. It is conceivable that requiring specific disclosure could prejudice the trial itself. Similarly, sanctions such as preventing the defence from leading evidence not disclosed are ultimately impractical. To prevent evidence of a defence being lead, where such a defence might exist, would be to raise doubts about the fairness of the trial process itself.

The Working Group has attempted to achieve a balance between on the one hand requiring certain matters to be disclosed, in order to improve pre-trial and trial efficiency, and on the other ensuring that the defence is not required to make admissions or disclose matters which may assist the prosecution in strengthening a weak case. While there are good arguments for encouraging defence disclosure I do not believe compulsion is the right way to go.

The Working Group paper recommends that after the prosecution opening, the defence be invited to open. I agree that if the defence elect to open then in many cases the jury will be assisted by understanding the issues in the case. I do not agree that the judge should address the jury at that stage. Occasions may arise, for example, if mental competence is the issue, when it is desirable for the judge to explain the issue or issues upon which the jury will be asked to adjudicate. It may be desirable for a judge to explain a defence, for example provocation before evidence commences. On the other hand I consider that a judge should say very little at this stage. As we all know it occurs that cases do not unfold as envisaged. In my view judges should be reluctant to direct juries until the evidence in the case has been heard. I can only see a fertile field for appellate lawyers and appellate courts if trial judges enter the arena too early in the proceedings.

The power of a judge to dispense with formal proof in certain circumstances is recommended. My experience has been that the defence rarely require formal proof unless there is good cause to so require it. If the defence objects, the discretion should be exercised with great caution. There are occasions when the defence would not wish to reveal their reason for fear of the loss of the element of surprise in cross examination. I consider caution is required. My experience has been that this is not an area which causes significant delay in the trial process.

Arbitrary time limits on examination and cross examination are vexed questions. It may be appropriate to limit examination and cross examination in certain cases. The trial judge currently has the power to prevent repetition and lengthy examination and cross examination. The imposition of arbitrary time limits is, in my view, not the answer. I can understand their utility in the appellate process where both written and oral argument is presented, however, I see practical difficulties in their application at trial.

I have focused on two core issues so far in this paper: systemic barriers to cooperation; and habitual barriers. The first of these can only be overcome by structural change requiring reform by all participants in the criminal system. The second is perhaps even more difficult for it requires a change of practice, of habits learnt early and often well ingrained in the practitioner. Such habits have evolved for many reasons including, heavy workloads, poor management and limited funding. It is doubtful that simply encouraging defence practitioners to improve their levels of cooperation will have much effect on these bad habits. What is really needed to reform current practices, and to comply with new requirements, is either tangible incentives and/or real penalties. In both cases it would be wise to tread carefully.

One current incentive for cooperation occurring in all jurisdictions in Australia is the practice of sentence discounting for early guilty pleas. It has been suggested in some quarters that such discounts should be available not only for guilty pleas but for cooperation at all stages of a cases progression through the courts, even where it goes to trial.[17] It is arguable that this already occurs in an informal way.

Although widely accepted, the practice of sentence discounting has many critics and there has been little evidence of its actual benefit in reducing court congestion.[18] The practice of sentence discounting receives public criticism because there is a perception that the offender is not getting his just deserts. There is defence criticism of the practice because of a perception that in many cases the discount is more imaginary than real, the head sentence having been increased to allow for the discount. The practice can be criticised in that harsher penalties can be inflicted on an offender as a result of poor, or no legal advice with respect to pleading. And there is the difficult question of what is owed to the victims of crime in the sentencing process.

Added to these concerns must be the question how is sentence discounting going to be applied to cooperation. If defence counsel fail to cooperate should the defendant suffer? Unless discounts are substantially increased for guilty pleas how much scope is there to discount sentences for cooperation? Moreover, if there is a general perception amongst defence counsel and defendants that discounts are not real, even where specifically identified in a sentence, what incentive is there for increased cooperation.

On the other side there are sanctions. The range of possible sanctions is quite wide when compared to incentives. The Working Committee’s report discusses a number of possible sanctions including costs against defendant, or counsel, exclusion of evidence, restriction of cross-examination, crown re-opening, or adverse comment.[19] Some of these sanctions already exist in some form in every jurisdiction. There already exists scope for prosecution re-opening where a defence was not foreseeable. The right to cross-examination is already restricted to relevant material, if it is irrelevant it can be excluded, if it is relevant, the interests of justice will invariably require it be admitted. The same goes for exclusion of evidence. Quite rightly, in my opinion, the Working Group has rejected the notion of adverse comment as a sanction.[20] I cannot conceive of any situation in which adverse comment would do anything other than bring the fairness of the trial process into question. Costs are unlikely to be effective sanctions against most defendants, while determining whether it was the defendant or the defence counsel being uncooperative would be almost impossible.

Clearly, the range of effective sanctions has been substantially reduced. One alternative which may offer some hope, although encountering some of the problems faced by determining responsibility for failing to cooperate, is restricting solicitor’s/counsel’s right to legally aided cases. As the vast majority of criminal cases tend to be, at least in part, funded through legal aid programs the threat of restriction might stimulate cooperation from the defence.

Delay is easy to identify. Solutions however are difficult and complex. In order to reduce delay and for the criminal justice system to become more efficient and cost effective various reforms must occur simultaneously. The attitude of the defence representatives must change. It is necessary for governments and legal aid authorities to recognize that funding and resources must be available at an early stage to enable the defence to fully prepare and advise so that the real issues in the case can be identified. The judiciary must encourage accommodate and be pro active in the process.

In my view, reform will only be effective if there is an understanding of the problem of delay. Sanctions are difficult to enforce and their effectiveness is questionable. Rewards are a useful tool if it is acknowledged that co-operation will result in real benefits to the defendant. Ultimately, it becomes a question of education and a change of entrenched attitudes by all of those involved in the administration of the criminal justice system.

[6] Report of the Standing Committee of Attorneys-General, Working Group on Criminal Procedure [Working Group]; Martin, G.A., Report of the Attorney-General’s Advisory Committee - Charge Screening, Disclosure, and Resolution Discussions, 1993 [Martin Report]; The Law Reform Commission Of Western Australia, Review of the Criminal and Civil Justice System - Final Report, http://www.wa.gov.au/lrc/finalreport/freportindex.htm

[10] These include defective police briefs, delays with scientific evidence, delays due to funding applications for such things as cross-examination of witnesses at committal, ongoing prosecution-defence negotiations and multiple accused.