Friday, March 31, 2017 4:00pm
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 27th March, 2017
Proposed laws to significantly alter how the courts deal with alleged criminals will be debated in Parliament this week.
Many of the provisions relate to the information that should be disclosed, either by the prosecution or the defence, and at what stage of the proceedings disclosure should occur.
The catalyst for the Bill is the chronic backlog of criminal cases in the District Court. Ultimately, the proposal overrides basic rights to get around a failure to properly fund the justice system. The Government has argued that the number of trials being vacated due to late guilty pleas is a cause of the backlog. However, placing the blame squarely on defendants is simplistic and, in itself, wrong.
A more significant factor is a failure to adequately resource the Office of the Director of Public Prosecutions. That has resulted in prosecutors not being appointed to a case until a trial Judge is allocated. As a consequence, negotiations usually occur just before trial, often resulting in a late plea to a lesser charge with the trial date being cancelled. Another cause of last-minute vacation of hearings is late disclosure of material by both Commonwealth and State prosecutors. Further, there are not enough Judges to deal with the volume of cases before the court.
As for the Bill itself, although the Law Society doubts it will achieve the result suggested by the Government, there are only a few provisions that cause serious concern. One of particular concern asks defendants to disclose the nature of their defence, including specific defences to be relied upon. In short, the defendant is being asked to reveal his or her case to the prosecutor. This is well in advance of the trial and, importantly, the prosecutor may then use that information to potentially lay fresh charges. Conversely, the prosecution would not have to commit itself to the case and present it in full, before the defendant responds. Defendants must know what they have to respond to. It has been fundamental to the administration of the criminal law, for centuries, that the defendant have a right to silence and that the Crown has no right to advance notice of the issues that the defendant proposes actively to contest. This was affirmed by the High Court in 1991.
It is the poor and the disadvantaged, especially self-represented defendants, who will be most unfairly treated by the proposed change.
Error may occur in the content of statements and not be detected until shortly prior to trial or, worse still, in the course of a trial or on appeal. The end result could be vacating a trial or a re-trial being the opposite of what the Government is seeking to achieve.
Fundamental rights like the presumption of innocence and the right to silence have been entrenched in our legal system for centuries for very good reason. It is to ensure that justice is done. A forlorn hope of saving a little money is not a good enough reason to override those rights.
Tony Rossi PRESIDENT