THE CRIMINAL TRIAL PROCESS AND THE PROBLEM OF DELAY

On 5 March 2000 the Melbourne paper, The Sunday Age, published a story entitled “How Victoria hanged the wrong man”. It concerned the events following the discovery, on 31 December 1921, of the body of a 12 year old girl, in a lane known as Gun Alley, which was situated off Little Collins Street in Melbourne. Medical evidence disclosed that she had been raped and strangled. On 12 January 1922 Colin Campbell Ross, the proprietor of a wine bar located in the Eastern Arcade, was arrested and charged with her murder. He was committed for trial on 26 January 1922. His trial commenced on 20 February 1922, and he was convicted and sentenced to death some 6 days later. On 20 March 1922 his appeal to the Full Court of the Supreme Court of Victoria was dismissed.[3] On 5 April 1922 the High Court, by majority, refused to grant special leave to appeal.[4] On 24 April 1922 Ross was hanged. If The Sunday Age’s account is to be believed there are now serious questions as to his guilt.

For its day, the speed with which Ross was tried, convicted and despatched was not unusual.[5] Indeed, it is only relatively recently that delay has emerged as a significant problem in the criminal justice system.[6] In New South Wales and Victoria crimes which are relatively straightforward in nature now often take what seems to be an inordinately long time to come to trial.

Despite the problems associated with delay in contemporary criminal proceedings, I doubt that anyone who compares the quality of justice afforded to accused persons today with what passed for justice in earlier times would consider that the present system suffers by comparison. In this context it is worth recalling the words of Felix Frankfurter:

It is interesting to note that when formulating the criteria by which reform should be judged the authors of this statement apparently rate efficiency ahead of fairness. That is regrettable, though not altogether surprising. In an age when the need for economic stringency is constantly emphasised, it is easy to overlook the importance of more enduring values. The right to a fair trial is, as the High Court has repeatedly emphasised, the “touchstone” or “fundamental prescript” of our system of criminal justice.[8] The need to minimise delay and to ensure that trials are conducted efficiently, and within proper cost constraints, must always be subsidiary to that fundamental prescript.

In recent years it has been our system of civil justice which has been subjected to close scrutiny. Some commentators have claimed that civil justice in this country is in crisis. It is clear that courts are often overburdened, and litigation may be financially beyond the reach of practically all, save for the affluent, or those who receive legal aid. In an effort to address these problems, courts and legislators have turned increasingly towards greater involvement by judges in early and continuing case management, and away from the more traditional adversarial model of conducting litigation.

A number of the problems which confront our criminal justice system may be seen as similar to those currently being addressed in relation to civil proceedings. It is recognised that there is a need to broaden access to legal representation, and to reduce both costs and delay. It is also recognised, however, that there are significant differences between the civil and criminal justice systems. Both systems share the aim of controlling conduct through the development of social norms. The criminal law, however, focuses upon punishment, while the civil law focuses upon compensation. We should not lose sight of the fact that the stakes are generally far higher for those caught up in the criminal justice system than they are in ordinary civil litigation.

While the criminal justice system aims to punish those who are guilty of criminal offences, it is not the purpose of the criminal law to punish at all costs. It is of fundamental importance that accused persons against whom there is insufficient evidence should be acquitted. Such a principle does not translate automatically into the discourse of civil justice.

When court administrators speak of “delay” they almost always use that word as a term of opprobrium. To delay, to their minds, is to be irresolute, or to procrastinate. However, the word “delay” also has a secondary, more neutral meaning – to put off to a later time, or to defer. Indeed when used as a noun, delay is simply the interval between one event and another.

Experienced criminal law practitioners know that some measure of delay is necessary, and not of itself a bad thing. There are many systems of criminal justice which move far more speedily than our own, but whose standards of justice are not worthy of emulation. It is obviously desirable, if at all possible, that allegations of serious wrongdoing are thoroughly investigated before any charges are laid. The reputation of a person who is charged with a serious criminal offence may be damaged irreparably even if that person is ultimately acquitted. Where consideration is being given to laying charges, it will often take considerable time to evaluate the evidence and to determine whether a prosecution should be brought. Prosecutors require reasonable time in order to prepare cases adequately for committal, and then for trial. The accused must be afforded a reasonable opportunity to meet any case brought against him.

This paper focuses almost entirely upon the problem of delay at stages (b) and (c), that is, from the point at which charges are laid to the point at which the trial commences. Nothing is said about delay between trial and appeal. It seems to me appropriate, however, to say something very briefly about the problem of delay in the investigation of complex crimes.

Investigations into complex crimes, such as major frauds, or large scale drug conspiracies, are always time consuming. It takes a long time to reconstruct a company’s books and accounts, in order to discover what happened to its funds. In drug cases, there may be hundreds of hours of listening device, or telephone intercept, product to be transcribed. It is obviously better that such work be done properly right from the outset, rather than having to be done in haste closer to the trial. Even DNA profiling, though now much quicker than it once was, still takes many weeks to complete. Experts in relation to complex matters cannot be expected to produce reports on tap.

That is not to say that there is not a good deal which can be done to reduce excessive delay in the investigation of such offences. Some regulatory bodies appear to move at glacial speed, seemingly oblivious to the damage which their procrastination is doing to the prospects of a successful prosecution. The solution to this problem really is simple. It is not, however, likely to be cheap. The investigation of complex offences requires the use of highly qualified investigators and experts whose time comes at substantial cost. In-house legal skills are important, but in complex cases those skills should always be supplemented by the best legal advice which is available. Money spent early in an investigation on obtaining advice of the highest quality will almost always produce significant savings at the end of the day.

One step which could be taken to reduce the delays which often occur in complex investigations would be to impose some meaningful restrictions upon the process of collateral review of investigative procedures. As matters stand, anyone suspected of serious criminality with the means to do so can at least delay, if not thwart, an investigation by engaging in a drawn out process of collateral review. It has become increasingly common, in relation to Commonwealth offences in particular, but also in relation to State offences, for challenges to be brought in civil courts against the validity of listening device and telecommunications interception warrants, search warrants, summonses requiring attendance at coercive hearings, and a host of other investigative steps. Some investigations have been wholly derailed by such challenges. The courts, conscious as they no doubt are of the dangers associated with collateral review[9] have not done enough, in my view, to discourage such challenges. Such cases need to be dealt with expeditiously, and with firmness.

“Lord Devlin in The Criminal Prosecution in England was able to describe committal proceedings as “an essential safeguard against wanton or misconceived prosecutions”... This comment reflects the nature of committal proceedings and the protection which they give to the accused, viz. the need for the Crown witnesses to give their evidence on oath, the opportunity to cross-examine, to present a case and the possibility that the magistrate will not commit ...

“The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued.”

Dawson J went on to observe that the value of committal proceedings to a person charged might be such as to warrant a trial being stayed or postponed where an ex officio indictment had been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial.

In New South Wales, in the late 1970’s, some committal proceedings in complex cases were conducted in what can only be described as an outrageous manner. These proceedings became bogged down and, in some cases, ran for months, and even years.[13] There is not the slightest doubt that some of the abuses brought about in these cases could have been avoided had Magistrates exercised proper control over them.

Legislators reacted by introducing legislation designed to streamline the conduct of committal proceedings, first by the use of written statements in place of oral evidence, and then by limiting the circumstances in which particular categories of witnesses would be required to give oral evidence.

In New South Wales the Justices Act 1902 (NSW) was amended in 1987 by the introduction of s 48EA. That section provided, inter alia, that a person who was a victim of an “offence involving violence” who made a written statement for the purpose of a committal proceeding was not required to attend to give oral evidence unless the justice or justices were of the opinion that there were “special reasons why in the interests of justice” that person should attend. The Supreme Court of New South Wales has given careful consideration to the meaning of that expression on a number of occasions[14].

One by-product of s 48EA was the development of the somewhat unfortunately named “Basha” hearing – ie an examination at the trial of witnesses who had not been examined at committal[15]. It need hardly be said that the time saved by not permitting key witnesses to be cross-examined at committal must be set off against the time lost, at significantly greater cost, in permitting such cross-examination at a “Basha” hearing.

In 1997 s 48E of the Justices Act replaced s 48EA. The effect of s 48E was to enlarge the class of persons not required to give oral evidence at committal proceedings to include all persons who had made witness statements, and not just victims of offences involving violence. In relation to victims of such offences, the test under s 48E remains “special reasons”. In all other cases the justice or justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement if of the opinion that there are “substantial reasons” why, in the interests of justice, the witness should attend to give oral evidence.

In Victoria the provisions governing the conduct of committal proceedings are contained in Schedule 5 to the Magistrates’ Court Act 1989 (Vic). Schedule 5 was amended by the Magistrates’ Court (Amendment) Act 1999 with effect from 1 July 1999. By that Act the old Schedule 5 was repealed, and a new Schedule 5 introduced.

The new Schedule 5 contains provisions which are far more elaborate and detailed than those which they replaced. Schedule 5 now provides for two classes of preliminary hearing prior to the committal proceeding, a “special mention hearing” and a “committal mention hearing”. Special mention hearings are to be conducted as required. There are, however, strict time limits within which the committal mention hearing must be held.

Schedule 5 now provides for service of what is known as a “plea brief” by the informant. A plea brief is, in essence, a short form hand-up brief designed to be used where the defendant has indicated a willingness to plead guilty. In all other cases, a full hand-up brief must be served personally on the defendant. This must be done at least 28 days prior to the committal mention date unless the Court fixes another period at a special mention hearing, or the defendant consents in writing to a lesser period.

Any statement that the informant intends to tender at the committal proceeding must be in the form of an affidavit, or contain an acknowledgment, suitably witnessed, that the statement is true and correct, and made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. There are detailed rules concerning the form which such statements must take, and what they must contain.

Where a hand-up brief is served, the defendant may, no later than 14 days prior to the committal mention date, give notice in writing to the informant, the DPP and the registrar indicating that he intends to seek leave to cross-examine at the committal proceeding a specified person or persons who made a statement, a copy of which was served in the hand-up brief.

In considering whether to grant leave the Court must have regard to various factors which are specified in the legislation. These include the adequacy of prosecution disclosure, the adequacy with which issues have been defined, the sufficiency of the weight of the evidence to support a conviction, and, as is customary, “the interests of justice”.

Clause 24 makes provision for what is known as a “post-committal conference”. The purpose of such a conference is set out in subclause 24(6). My understanding is that these conferences are not being conducted and that Clause 24 is, in effect, “a dead letter”.

Schedule 5 in its present form has been operational for only a few months. Regrettably, the early feedback from both sides of the profession is not encouraging. That is scarcely surprising. The process of preparing for a committal proceeding, which was once reasonably straightforward, has now been converted into a complex exercise requiring the preparation of a significant number of important documents all of which must be completed within strict time limits. Some practitioners complain that the new procedures require frequent and unnecessary court appearances. These appearances are often lengthy, and add to delay and cost.

One particular difficulty is that a committal mention hearing must be held within three months after charges are laid for sexual offences, and within six months after charges are laid for all other offences. The requirement that a full hand-up brief be served on the defendant at least 28 days before the committal mention date is often very onerous in complex cases, though the time available should be sufficient for most ordinary cases. It is not at all uncommon for applications to be made seeking extensions of time. Not surprisingly, when such applications are made, they are often resisted, and this process takes significant time to resolve.

The defendant is given only 14 days from the service of the hand-up brief to give notice in writing that he intends to seek leave to cross-examine a particular person or persons at the committal proceeding. The defendant is required to set out “the scope and purpose” of the proposed questioning, and to explain how it has “substantial relevance” to the facts in issue. These requirements do not sit easily with the obligations arising out of client confidentiality and legal professional privilege. They represent a significant inroad into the right to remain silent. Moreover, the 14 day notice period may be unrealistic given the amount of work which must be done to enable an application of this type to be made. It may be expected that there will, in future, be many applications for extensions of time, with the need for additional special mention hearings, and all the attendant costs and delays associated with such applications.

It may also safely be concluded that in complex cases there will in future be applications to review decisions taken by magistrates who decline to permit key witnesses to be cross-examined. I understand that one such application has already found its way into the Supreme Court. The need for such applications will, in turn, produce further delay. And of course the absence of proper committal hearings may incline fewer defendants to plead guilty at an early stage. There will be pressure upon judges in higher courts to allow “Basha” hearings to overcome the defects in proper trial preparation brought about by the operation of Schedule 5.

One final note. It is peculiar to think that Magistrates in Victoria are still expected to apply a committal test which turns upon the sufficiency of the weight of the evidence to support a conviction in circumstances where there is likely to have been no adequate opportunity to have tested that evidence.

The changes brought about by the 1999 Act have also had an effect upon the provisions of the Sentencing Act 1991 (Vic). In sentencing an offender, a court may have regard to that person’s conduct at or in connection with the trial as an indication of remorse or lack thereof – s 5(2C). In considering the conduct of the offender under that subsection, the court may take into account the extent to which he or she has complied with, or failed to comply with, a requirement imposed under the 1999 Act.

The 1999 Act was introduced in response to what were perceived to be major difficulties associated with the conduct of criminal trials in Victoria. The statistics suggest that over forty per cent of trials which were listed resulted in last minute pleas of guilty. Approximately forty per cent of trials were being adjourned at least once. The average length of trials had increased from approximately 5 days a decade ago to over 8 days.

The statistics also show that the median time between committal and trial was approximately 9 months. Ten per cent of cases were taking two years or more to be brought to trial after committal. Sexual offences were given priority, and the median delay in those cases was approximately 6 months. Because sexual offences were given priority irrespective of whether the accused was in custody, custody cases faced greater delay. The median delay in custody cases was approximately 7 months. Ten per cent of custody cases were taking more than 18 months to be brought to trial after committal. For those pleading guilty the median delay was almost 3 months with ten per cent facing delays of approximately 6 months or more.

Prior to the introduction of the 1999 Act, the County Court had developed a practice of over listing trials because it could safely be assumed that a significant number would be adjourned, or that there would be last minute pleas of guilty. It was clear that serious steps had to be taken to reduce delays, and to introduce a modicum of efficiency into the listing process.

The 1999 Act has led to the introduction of a detailed case management system in the County Court. At the first stage, three judges have been assigned to handle what are known as case conferences. These conferences focus upon early judicial intervention with the aim of identifying the issues in dispute between the parties and, if possible, resolving them. A case conference is conducted before the presentment is signed. All parties are required to be present. The conference is scheduled to suit the needs of the parties, outside of normal Court hours. Each judge assigned to handle these cases is expected to be prepared to leave the bench, and to sit with the parties for an “off the record”, “without prejudice” discussion regarding the manner in which the Crown puts its case. I understand that his Honour, Judge Jones, one of the three listing judges who conducts case conferences, has achieved a settlement rate of forty to fifty per cent arising out of the forty or so conferences over which he has presided. To date these conferences have been confined to those matters in which pleas have been reserved at committal proceedings. However, it is expected that such conferences will, in future, be conducted in all cases except those in which the accused has pleaded guilty.

I must say that I have serious reservations about the wisdom of judges becoming involved in informal “off the record” discussions of the type described above. That course seems to me to involve serious risks, and to be easily capable of being misinterpreted. I would much prefer to see everything which takes place before a judge in court done openly, and with a record maintained of what has been said. That does not mean that there is no scope for things to be said on such occasions on a without prejudice basis.

The listing judges do not give any indication of what sentence might be expected if there were to be a plea of guilty. The practice of sentence indication is specifically eschewed under the scheme. In my view that is a pity. I have no difficulty with judges who are adequately seised of particular cases giving sentence indications, provided appropriate safeguards are in place to ensure that what occurs is open, transparent and ultimately capable of review. I believe that some appellate courts have been altogether too precious in condemning the practice of sentence indication, when that practice, if properly regulated, is capable of providing a valuable method of avoiding unnecessary trials and reducing delays.

The next stage in the process under the 1999 Act is what is known as the directions hearing. Such hearings are conducted by the same three listing judges as conduct the case conferences. The trial prosecutor and defence counsel are expected to attend. As with case conferences, these hearings are scheduled to suit the needs of the parties and are conducted outside of normal Court hours. At directions hearings various preliminary steps may be taken in preparation of the case for trial. Although the Act permits the listing judges to resolve preliminary questions, those judges sensibly have taken the view that this is not normally appropriate. It is preferable to leave the resolution of matters of real substance regarding the conduct of the trial to the trial judge.

The 1999 Act was enacted following the deliberations of the Criminal Trials Consultative Committee established by the Attorney-General in 1998 to review criminal trials in Victoria. It is unfortunate that the Committee did not publish a formal report. It appears that its recommendations were not unanimous. The Act was enacted against the background of the fact that the earlier Crimes (Criminal Trials) Act 1993 had failed in its attempt to facilitate the efficient conduct of criminal trials, particularly long or complex trials.[18] The centrepiece of that Act was a form of limited criminal pleading, including the provision of prosecution case statements and defence responses. That Act was considered to be uncertain in its application, and came to be totally ignored in most cases.

It is easy to understand why the former Victorian Government came to the conclusion that there was a need to repeal the 1993 Act, and to replace it with legislation which might achieve some success in promoting efficiency and reducing delay. It is regrettable that there seems to have been little consultation on the part of those who drafted the 1999 Act with those who practise regularly at the defence bar. There are many contentious matters dealt with in the 1999 Act, including in particular the requirement that both parties produce detailed written statements of their position. The defence is required to identify not only what evidence the accused is prepared to admit, but also what evidence he is not prepared to admit, and the basis on which he takes issue with any facts asserted by the prosecution. That approach fails to take account of the practical difficulty which many defence lawyers face in obtaining precise and meaningful instructions from their clients at an early stage of the proceedings. The level of detail concerning the accused’s position required by the Act may be thought to involve serious inroads into the principle that an accused should not be required to assist the prosecution in procuring a conviction.

In practice, the real issues in dispute are seldom in doubt in most criminal cases. Competent counsel normally concede facts which are non-contentious. Doubts have been expressed as to whether it is desirable to fix the accused with what are, in effect, formal admissions rather than simply indicating in a general way what matters are not in dispute. There is always a risk that a jury may interpret a formal admission (which is really only an acknowledgment that a particular fact is non-contentious) as though it constitutes evidence of knowledge on the part of the accused of matters of which he ought not, on his case, be aware.

Section 11 of the 1999 Act makes provision for the taking of evidence from a witness at a directions hearing prior to trial (a type of “Basha” hearing). However, an application may only be made under that section if the person was not available to be examined as a witness at the committal proceeding, or a statement from the person was not included in a hand-up brief served on the accused under Schedule 5. There are no such limits upon the conduct of a “Basha” hearing by a trial judge.

It seems likely that trials will be interrupted by the need to deal with such applications to take evidence whereas, had there been proper procedures in place for committal hearings, those interruptions could have been avoided. A trial judge will naturally be reluctant to refuse a “Basha” hearing in circumstances where there has been no prior opportunity to cross-examine a key witness at a committal.

The provisions of the 1999 Act which permit the trial judge or, with the leave of the Court, a party to comment to the jury regarding a failure on the part of any party to comply with a requirement of the Act, or an order made under the Act, seem to me to provide fertile ground for appeals. The Act of course places limits upon such comments. However, if history is any guide there will soon be a substantial body of jurisprudence relating to the operation of these provisions.[19]

Another section of the Act which has given rise to concern is s 24 which empowers the Court to award costs against any party for a failure by that party to comply with a requirement of the Act. Section 25 allows a judge to award costs against a legal practitioner acting for a party in a criminal proceeding where that legal practitioner has caused costs to be incurred improperly, or without reasonable cause, or to be wasted by undue delay or negligence, or by any other misconduct or default. Practice Note 1 of 1999 suggests that the Court can make orders of this type where it is found that a legal practitioner was not properly prepared.

Nash comments:

“These provisions, while designed to prevent irresponsible behaviour, excessive cross-examination or filibustering by counsel, seriously inhibit the capacity of legal practitioners to properly represent their client. This inhibition will fall, heavily, in particular on legal advisers of a defendant who wish to exercise the historic right of an accused to require the Crown to prove all elements of its case beyond reasonable doubt.”[20]

The report sought in a concise manner to identify practical areas of reform which offered the greatest potential to reduce criminal trial delay while not impacting unfairly upon the right of every defendant to a fair trial. The report identifies the following broad areas as avenues for reform:

A number of the recommendations of the report are at odds with the limitations which have been imposed in recent years in New South Wales and Victoria upon the opportunity for cross-examination of prosecution witnesses at committal proceedings, and also the more radical departures from traditional trial procedures embodied in the 1999 Act. The report contains a series of well balanced and sensible suggestions for reform and avoids some of the worst excesses of the legislation enacted in Victoria in recent years.

The report emphasises the commitment of the Working Group to the system of adversarial justice and to the values which underpin that system. The report adopted the description of the context within which criminal procedure should operate given in the Best Practice Model for the Determination of Indictable Criminal Charges developed jointly by the Directors of Legal Aid and the Directors of Public Prosecutions. That description is worth repeating:

“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 enforced assistance of the accused. While there is a public interest in approving the efficiency of criminal proceedings by reducing delay and costs, this must proceed in the context of the accusatorial framework.”

There can be no doubt that the burden on the higher courts will be eased if there is an increase in the early identification of guilty pleas. Restrictions upon the opportunity to cross-examine prosecution witnesses at committals, now generally in force in New South Wales and Victoria, have precisely the opposite effect.

The report recommends that a limited opportunity for prosecution witnesses to be examined and cross-examined at committal should be retained. Regrettably, the recommendation is not fleshed out by setting out the circumstances in which that limited opportunity should be afforded. It is plainly inappropriate to require witnesses whose evidence is formal, or at best peripheral, to be made available for cross-examination at a committal proceeding. However, those witnesses whose evidence is of substantial relevance to the case against the defendant ought, in my view, to be available for cross-examination. Such cross-examination should be subject to proper limits. There should be no repetition of the appalling excesses of the past.

The report recognises that all jurisdictions now operate on the basis that offenders are entitled to sentencing discounts for pleas of guilty, particularly if those pleas are accepted as indicative of remorse. Generally speaking, the earlier the plea, the greater the discount. I agree with the Working Group that the practice of granting sentencing discounts for early pleas of guilty, and for cooperation in the conduct of the trial, should continue.[21] Sentencing courts should indicate specifically in their reasons for sentence the amount of discount allowed, and the basis upon which that assessment has been made.

I also believe that the system of sentence indication which was trialed but discontinued in New South Wales several years ago is worthy of further examination. That system, though based almost entirely upon utilitarian considerations, always seemed to me to have great potential for avoiding unnecessary cost and delay by letting accused persons know, at an early stage, what sentences they might receive if they pleaded guilty at an early stage.

The Western Australian Acts Amendment (Jurisdiction and Criminal Procedure) Act 1992, which instituted a procedure for dealing with persons willing to plead guilty to indictable offences, known colloquially as the “fast track” procedure, seems to me to embody an excellent scheme, and to warrant careful consideration by other States and Territories.

The Working Group’s discussion of pre-trial procedures stresses the importance of certainty of trial dates and the need to encourage cooperation with pre-trial procedures. The report avoided entering the debate concerning the right to silence but expressed the view that requiring the accused to identify issues, and to flag certain defences, did not infringe the fundamental integrity of the accusatorial system, and did not require the accused to assist the prosecution to prove its case.

Although the Working Group went some way towards accepting the general thrust of those provisions of the 1999 Act which require the prosecution, at the time of filing and serving the final case statement, to file and serve a notice of pre-trial admissions, it did not envisage the defence being required to respond in anything like the detail contemplated by that Act. The Working Group observed:

“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.” (emphasis added)

The Working Group has sensibly declined to follow the provisions of the 1999 Act which invite trial judges and, with leave, prosecutors to comment on the failure of the accused to comply with the requirements of the Act without suggesting that such failure may be taken as an admission of guilt.

The Working Group has also sensibly concluded that the primary concentration in this area should be on incentives to cooperate, rather than sanctions for non-compliance. The provisions in the 1999 Act allowing costs to be awarded against an accused and, in certain circumstances, against the accused’s legal practitioner, are seen as unwise and are, quite rightly, rejected.

The amendments to the Magistrates’ Court Act 1989 which were introduced in Victoria in 1999, and the enactment of the 1999 Act, were supposedly designed to improve efficiency and to overcome the problem of excessive delay. Some of the changes resulting from these amendments seem to me unlikely to do very much to overcome that problem. Those changes may indeed exacerbate it. There is also a reasonable case for saying that the changes to the law brought about by the amendments, and by the Act, have tilted the balance unduly in favour of the prosecution, and against the accused.

It is plain that there are no easy solutions to the problem of undue delay. Sensible procedural reforms are the first steps towards overcoming that problem. Whether or not such reforms are sufficient, without Government committing extra resources, remains to be seen. The Working Group is to be commended for having produced in its initial report a set of proposals which are rational and coherent, and which may form the basis of a model for reform in this area.

^* Judge, Federal Court of Australia. The author acknowledges the assistance provided to him during the course of preparation of this paper by Mr Peter Wood of the Office of Public Prosecutions, and Mr Nick Pappas, Chief Public Defender of the State of Victoria. The author also acknowledges the considerable assistance provided by his Honour Judge Jones of the County Court of Victoria, and Justice Greg James of the Supreme Court of New South Wales.

[6] In R v Ryan & Walker [1966] VR 553 the applicants were charged with the murder of a warder at Pentridge Gaol on 19 December 1965 in the course of escaping from prison. Their trial in the Supreme Court of Victoria took place in March 1966. Their appeal to the Full Court was heard in the early part of May 1966, and the Full Court delivered judgment dismissing that appeal on 8 June 1966.

[13] Note for example the history of what has come to be known as the “Greek Social Security Conspiracy” discussed in Tahjmindjis v Brown (1985) 60 ALR 120 per Fox J. The committal proceeding in that case ran for some two and a half years over 354 sitting days with more than 350 witnesses called by the prosecution, 13,000 exhibits tendered, and 30,000 pages of transcript produced. Other examples of committal proceedings which appear to have blown out to inordinate lengths include the matter of Emanuele in the ACT (Emanuele v Cahill (1987) 71 ALR 302) and the matter of Higgins, to which reference is made below.

[14] See for example, B v Gould (1993) 67 A Crim R 297 Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 and R v Kennedy (1997) 94 A Crim R 341. See generally S Norrish, “Section 48E Applications in the Local Court” (1999) 4 The Judicial Review, 299.

[19] The difficulties confronted by trial judges in their task of directing juries without impugning the traditional right of the accused to remain silent following decisions such as Weissensteiner v The Queen (1993) 178 CLR 217, and RPS v The Queen [2000] HCA 3 will only be exacerbated by the need to tread carefully through the provisions of the 1999 Act which permit comments to be made by trial judges, and prosecutors.

THE CRIMINAL TRIAL PROCESS AND THE PROBLEM OF DELAY

By Mark Weinberg[1]

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Introduction

Nash comments: