The standing committee of attorneys-general has come up with some quite sensible proposals to streamline criminal trials in Australia. The committee comprised senior legal figures from nearly all jurisdictions, and those not formally represented had representatives familiar with their jurisdiction.
The past two decades in Australian have seen a blowing out of the length and cost of trials, both civil and criminal. That trend has been met with another trend towards arbitration and dispute resolution procedures in civil cases because parties see the present adversarial and strict-evidence system as too costly to help their cause. Unfortunately, in the criminal sphere opting out is not an option. The state must prosecute and the citizen must defend. There can be a certain amount of informal plea bargaining, but unlike in civil cases there can be no alternative dispute-resolution processes. It is important, therefore, that the criminal justice system work fairly and efficiently because there is nowhere else to go.
It might be simplifying the report too much but the theme of the recommendations is for the system to stop playing police and lawyers’ games. The report makes the sensible suggestion that in serious cases, lawyers from the director of public prosecutions should be involved at the earliest possible stage. Too often police get into a mindset about who is guilty and close off other options or fail to see weaknesses in the case.
The report suggests also that the prosecution disclose all in a timely fashion to the defence. Criminal prosecution is not a game of bridge. It is folly to allow the prosecution to draw and ace from the sleeve late in the piece in the hope of a decisive victory. Far better in criminal trials for the prosecution to show its hand early so a defendant can either meet the evidence or know the game is up and plead guilty.
At present the adversarial culture loves surprise. In highlighting the weakness of the adversarial culture, the report is not being anti-lawyer. To the contrary it seeks earlier involvement of lawyers, both of the defence and prosecution side. Provided that is coupled with capped legal-aid grants, in place of the present per-hour rates which encourage delay, there is much merit in it. A lot of cost and inefficiency in the present system occur because lawyers arrive too late or inexperienced lawyers are involved too early. It would be far better for experienced lawyers, paid by legal aid, get involved early with an aim of early resolution of criminal matters, or at least a honing down of issues to only those in dispute.
It is important also for the system to concentrate on incentives to co-operate, without compromising defendants’ rights to defend. There must be a definitive and publicly identified scheme of sentencing discount for early guilty pleas and a duty placed upon lawyers to advise clients of it. Public identification of the discount will encourage appropriate guilty pleas.
Federal Attorney-General Daryl Williams has done a splendid job in the past few years extracting legal snouts out of troughs. He has tightened up on legal aid. He has recognised that if you give aid by the day, the days in court are prolonged. He had quite rightly tightened the belt. But judicial efficiency and fairness should not be an exercise in lawyer-bashing. To the contrary, it is important to get lawyers involved earlier. But costs should be contained, so it is better to pay legal-aid lawyers by the event than by the hour.
Further, there must be greater onus on the defendant before trial to identify what evidence is contested and what accepted and to identify what defences are going to be relied upon earlier in the piece.
No longer can defendants expect to do nothing putting the prosecution to the full test of every detail without bearing some consequences from dong this.
The report sensibly urges a move away from the adversary culture. It does not address the question of juries, but its recommendations are fundamentally sound.
One should not use an ad hominem argument, but it is instructive to look at the membership of this committee. It has a huge experience in prosecution, defence and judging ranging from the big white collar crime to the desperate down and out and dispossessed Aboriginal and from the utterly mad to the utterly evil.
It is a report that must not be pigeon-holed.