The Federal Attorney-General, Daryl Williams, has been on a commendable campaign over the past few years to do something about the costs and delays that have bedeviled the administration of justice for decades. The trends seem to be for longer trials and more expensive legal fees.
A week ago in a speech to the Australian Institute of Judicial Administration, Mr Williams highlighted his concern about the criminal justice system. Unlike many critics of the legal system, Mr Williams has isolated some detailed causes for costs and delay, unlike many others who merely point to undeniably expensive and protracted legal processes and say something must be done.
He says, “”The criminal justice system is the area worst affected, because, in general, it does not yet have the formal procedures for narrowing issues in dispute available in the civil jurisdiction.”
Some of the main problems in the criminal justice system “”include a significant lack of effective pre-trial procedures, the overloading of indictments, the rule against splitting the prosecution case; unnecessarily long and confusing examination and cross-examination of witnesses. In some jurisdictions there are also the constraints of the hearsay and best evidence rules and difficulties in the form proof of mulitple routine transactions”.
This list sounds complex. To some extent it is. The rules that Mr Williams refers to are supposed to give the accused a fairer trial. But every device aimed at giving the accused a fairer trial seems to get seized upon by lawyers for the accused and used to add delay and complexity to trails, often with no real prospect of the points taken advancing the accused’s case, or, worse, seized upon to advance unmeritorious arguments that confuse juries and lead to the acquittal of the guilty.
Many of our lawyers are so steeped in the adversary system that they regard getting people they regard as guilty off as a source of immense satisfaction and are willing to say as much. Conversely, our adversary system is such that prosecutors go the extra mile to secure a conviction. Part of that might be a response to more artful defence cases, but part of it is a mentality of seeking success in an adversary system. Hence Mr Williams’s complaint about over-loaded indictments, in which the prosecution alleges multiple charges for one set of actions in the hope that at least one might stick.
As Mr Williams says, “”Ultimately, the credibility of, and public confidence in, our justice system is at stake.”
Long trials, of course, drain the resources of the court and legal-aid systems which results in the many short cases being postponed and/or going without adequate legal aid.
Recently in the Act we have seen a fairly open-and-shut case of murder take seven weeks to try. The judge did his best to move things along within the rules and perhaps fearful that an appeal court might overturn a conviction. But it seemed the rules made him incapable or reining in all of the tendency of the defence counsel to pursue every last avenue for an acquittal no matter how obviously hopeless to a lay observer and how in fact hopeless they turned out to be. The lawyer is entitled to take these avenues under present rules. The question being asked by Mr Williams and others is: are the rules doing the job. Must it take so long?
Even when the rules allow for a more vigorous approach we still see cost and delay caused by an ingrained methodology by the legal profession to take fine points and engage in adversarial conduct. We are seeing the inquest into the hospital implosion turn into an excessively long adversarial fight between lawyers for the various parties instead of the coroner taking the case in hand to search for the truth. Must it take a whole year to investigate a death?
Virtually every case in the public eye and others as well seem best by cost and delay. The excuse given by lawyers is that they must do the utmost for their clients and pursue every avenue no matter how costly (provided someone is paying) or how much time it takes.
Hitherto that argument has been moderately successful. We have been so concerned with the rights of the accused that we expect their lawyers to behave that way. But this approach is now being increasingly questioned, including by the Attorney-General himself.
Mr Williams, however, has the job ahead of him. He has been fighting this battle on two fronts. Earlier he cut Commonwealth legal aid funding. His argument, which had a lot of merit, was that the more legal aid funding was available, the more the legal profession would consume it. It was a bottomless pit. He incurred the wrath of the social welfare lobby as well as the wrath of the high-income earners at the other end of town.
Mr Williams has rightly questioned some rules and procedures. Despite this, he says, “”Australia can be justifiably proud of its judicial system and there has, over recent years, been an unquestionable commitment to reduce the length and cost of trials.”
It seems a perverse conclusion. The judges may be doing their best, but can we any longer take pride in a legal system where protections for the accused can be misused to secure acquittals for the rich and where cost and delay deny justice to so many others.
As to the commitment to reduce the cost and length of trials, it may be unquestionable, but it has achieved very little.
Mr Williams is right to attack costs and delays, but pointing at a few rules in the existing system may not be enough. We need a more profound look at the adversary system; the rules of evidence and the jury system upon which the whole system is based.