The Commonwealth Director of Public Prosecutions, Michael Rozenes, QC, has issued an ominous warning about Australia’s criminal-justice system. He has said that the complexity and inefficiency of the system had driven up costs to the extent that it was becoming too costly to prosecute white-collar criminals. The cost and complexity had, he argued, increased the justice of the system, but it meant there was a danger that those “”with the wit and guile to commit complex crimes” and who could afford good lawyers would be able to make the cost of prosecution too great to pursue.
Mr Rozenes warning comes at a time of large cut-backs in Commonwealth funding. However, it was not a plea for extra funds or more people to do the job. Rather it was a sensible questioning of the outdated procedure and rules of evidence used in criminal trials. It is not the first time Mr Rozenes has expressed his frustration at the failure of the system to deal with white-collar crime. In the past he has criticised company regulators for enabling corporate wrong-doers to escape criminal prosecution for breaches of corporations law by letting them off with civil penalties.
Mr Rozenes’ latest warning is more profound. He says that as the system becomes more just, it also becomes more expensive, so expensive that prosecuting authorities will be unable to pursue complex white-collar crimes. One can take issue that this will merely bring the justice system into disrepute. One could argue that a system so expense to run that guilty people escape conviction is not one that is becoming more just; rather it is become less just.
We have become beguiled by the saying that it is better to let 10 guilty people go free than one innocent person be convicted. A system that puts so many procedural safeguards in place that the guilty can escape justice by hiring expensive lawyers to wear down prosecution capacity is not a just one. Justice requires conviction of the guilty as well as protection for the innocent. Without reasonable assurance that the guilty will not only get caught but also convicted, deterrence becomes weaker. Moreover, deterrence gets weaker in precisely those areas that have given rise to Mr Rozenes’ concern _ complex white collar crime. This is because these crimes result in large returns to the criminal. Coupled with a reduced risk of conviction, it means the incentive to commit them is greater.
That said, Mr Rozenes is quite right to call for changes in criminal procedure and rules of evidence. Without those changes it is difficult to see how the system can become more just.
There can be no denying widespread dissatisfaction with costs and delays in the Australian legal system. In the civil area, high costs have debarred access by all but the very rich and very poor (the latter with legal aid). And now we find that the costs are debarring the very rich from being dealt with by the criminal courts. This is an alarming progression.
The increases in costs cannot be dealt with by the sorts of solutions offered by last year’s Justice Statement _ throwing money and ore people at it. It will be far more productive to look at procedures, rules of evidence, the efficiency of courts, and the ability of judges not to put up with costly delaying tactics.