Justice and Other Legislation Amendment (Summary Procedure) Bill 2014
The Law Society Northern Territory (Society) welcomes the opportunity to make a submission on the Justice and Other Legislation Amendment (Summary Procedure) Bill 2014 (Bill).
The Bill has arisen in response to perceived inefficiencies in the case management system in the Court of Summary Jurisdiction. In responding to the Bill the Society is concerned that draft Bill places undue emphasis on efficiency at the expense of Justice. The Bill represents a significant deviation from the standard of criminal justice and the Society does not support trading off any aspect of a fair and just system for the sake of expediency. That being said the Society supports the objective of the Bill with the overriding qualification that the Court is best placed to determine procedures.
The criminal justice system is based on a number of fundamental principles being:
- The presumption of innocence;
- The requirement for the Crown to prove an allegation beyond reasonable doubt;
- The right to legal representation;
- The right to confront an accuser by cross examination; and
- The right to silence.
These are fundamental principles which should never be abrogated.
The Society submits that no evidence has been provided to demonstrate that the existing system of criminal procedure has resulted in a miscarriage of justice.
The Society accepts the assertion that the current process should be reviewed. The Society also accepts that there has been significant growth in the number of cases in the Northern Territory and a workable process that will facilitate where appropriate early pleas has become important to ensure smooth running of the Court. Importantly where it is demonstrated that Court procedures are resulting in late pleas efforts should be made for reform.
The Society submits that any review should identify and quantify the scope of the perceived problem, so that effectiveness of reforms can be monitored. This examination should identify all possible causes, options for reform and identify why any proposed reform is preferred. The review should not ignore the impact of other factors such as mandatory sentencing, charging practices or failure to conduct the case in the interests of the administration of justice.
It is accepted that encouraging early pleas present advantages for the Courts, Police and the Office of the Director of Public Prosecutions (ODPP), and legal assistance providers, victims and witnesses and also for the accused. The benefits for the accused are limited in so far as it results in a certainty and finality of outcome, limits the occasion for publicity and permits the potential imposition of a less severe sentence through a discount. However these cannot be bought at the expense of the administration of justice.
The right of society to see the accused?s guilt determined at trial must be balanced against the interests of administrative budgetary considerations. The interest in efficient justice must not needlessly erode the obligation to prove the case and the accused?s right to have his or her guilt determined in open court. Thus if the decision of an accused to plead guilty is one that he or she is free to make (where of sound mind, of age and exercising a free choice) that freedom needs to be respected by the Court and prosecution authorities.[i] It is accepted that the justice system should not penalise an accused who exercises his common law right to trial. Nor should the system be such as to encourage, or perhaps pressure the accused to plead guilty to offences of which they are not guilty.
In addition to encouraging or facilitating early pleas of guilt it is suggested the proposed disclosure reforms advance case-management and bring efficiency gains. The Society submits that defendants are already required to disclose certain defences, such as alibi and mental impairment. Courts already have the power to order more extensive defence disclosure where it appears appropriate. Furthermore duties of disclosure exist for Legal Practitioners at Common Law and in the Legal Profession Act (LPA).
Who should decide Court procedures and process?
The Society is of the view that the Court is best placed to determine Court procedures and that legislative intervention encroaches on this to the detriment of the Court. It is also of concern that public faith in the administration of justice may be undermined by legislative reform that albeit inadvertently creates the impression that the Court is unable or unwilling to control their own processes.
PD 4 of 2014
A recently released Practice Direction (PD) No 4 of 2014 gives direction in case management in criminal matters and we are led to believe is having the desired effect. Whilst the current PD is limited in its application to the Darwin Court it is anticipated, if successful, is likely to be expanded. We submit that given the very recent release of the PD there is no evidence to indicate more attention needs to be paid to the current disclosure regime and the Society recommends removal of these aspects from the Bill.
Importantly the PD:
- was the subject of wide consultation with stakeholders;
- was considered by all to be a positive process;
- is premised on early preparation, and comprehensive disclosure pre-trial; and
- Appears to be having the desired effect.
The PD differs from the proposal in the Bill in seemingly minor ways. The PD requires the prosecution to disclose certain things to the defence but does not contain the defence disclosure requirements that are in the Bill. This stems from the PD acknowledging the presumption of innocence, the onus of proof, the right to a fair trial and the right to silence. Importantly the disclosure provisions of the PD are largely uncontroversial being accepted by ODPP and defence and restates previous practice whereas the Bill proceeds to incorporate additional disclosure obligations.
The Society understand there are likely to be difficulties with disclosure obligations set out in the PD in remote Courts and that stakeholders will need to be consulted with respect to expanding the scope of the PD. The Society submits the PD should be allowed to continue as presently drafted. This is to ensure any issues can be addressed by a simple amendment to the PD.
The Bill appears to treat prosecution and defence as equals by creating disclosure obligations for both. In doing so the Bill ignores the fact that the state brings a criminal case against the individual and that there exists a gross disparity in resources between the two. The Bill represents a significant change to the law and the rights of people charged with offences, placing a significant new burden on defendants. The Bill in turn increases the desirability for all individuals charged with any criminal offence to have immediate access to legal assistance to be best informed to respond to the allegations. In the current economic climate, we are uncertain that there will be the necessary resourcing available for this.
Declining funding for legal aid generally and Aboriginal Legal Services (?ALS?), will worsen the disparity between prosecution and defence. Care should be taken when introducing measures that increase the burden on defendants and thus publicly funded legal services. Reforms need to be cognizant of the need to maintain flexibility of procedures to deal with the anticipated increase in unrepresented defendants.
The proposed amendments have a disproportionate impact on vulnerable accused particularly those with limited resources.
We further note the limited nature of the resources available to the legally aided defendants because of extreme restrictions on, and delays in considering applications for, legal aid. Mandated disclosure and the potential for sentencing discounts raise the prospect of having to engage Counsel at an earlier stage to provide the necessary advice. Currently legal assistance services are not funded to engage Counsel prior to trial.
Self-Represented accused may not be aware of what elements constitute a criminal offence. They may be pleading guilty because it is ?easier? which would thwart the criminal process.
Mandated disclosure such as that in the Bill affects the right of an accused to maintain silence from charge until the close of prosecution case at trial.
The Crown should continue to be required to prove, beyond reasonable doubt, every element of a criminal offence, particularly any element of the offence which is central to the question of culpability for the offence. Only where a matter is peculiarly within the defendant?s knowledge and not available to the prosecution, would the defendant bear the onus of establishing the matter. Even then the defendant should ordinarily bear an evidential onus, as opposed to a legal burden.[ii] The Bill in effect alters these fundamental principles.
The Society submits that the contents of what constitutes a full brief should be clarified by way of a PD. The Society recommends that the Preliminary Brief have a signed statement 60AB(2) ? as with the current PD. Proposed s.60AG provides that the Court may require that the prosecution serve a full brief.
There Society submits that the Bill should be amended so there is a continuous disclosure obligation on the prosecution similar to that provided for the defendant in proposed section 60 AH(3).
Entering a plea can only be done on instructions from a client. As Officers of the Court, and in line with a Legal Practitioner?s duty to their client, advice on the benefits of a guilty plea is already given. There are a number of reasons why a defendant may not wish to make an early guilty plea. One of which relates to the harshness of the charges made, often they are inappropriately heavy in the objective circumstances of the case. This is discussed in more detail below.
Defendants also encounter other barriers to entering pleas early. Delays in entering a plea could arise because or communication difficulties. This can mean a defendant is not easily contactable for instructions to be obtained. Contact may be impeded because a defendant is in custody or on bail and living remotely. Communication with the defendant may also be difficult due to the need for interpreters, low literacy or hearing difficulties meaning instructions cannot easily be obtained by telephone. Counsel may have limited opportunity to discuss or have negotiations until closer to the trial date. It is important that the Bill does not penalise defendants for reasons beyond their control.
The Society offers qualified support for the proposed amendments allowing transparent sentencing discounts. The Society does not support proposed section 107(D) which relates to the exclusion of mandatory sentencing from the provisions for sentencing discounts in that they cannot be reduced beyond the mandatory minimum.
The sentencing discounts that can be awarded are ?up to? certain percentage. Would the common law principles applicable to sentence discounts still apply?
In relation to the proposed section 107(D) the Society submits there is no incentive to plead guilty early as there is no discount available. It is widely held view that mandatory sentencing is a disincentive to pleading guilty and the Society is keen to see independent evaluation of the proportion of charges where sentences are mandated that result in delayed pleas of guilt.
The Society offers qualified support for the amendments to allow for sentencing indications. The failure to plead guilty should not be an aggravating factor in sentencing. Care needs to be taken to ensure the sentence indication scheme does not place undue pressure on a defendant especially if a Judge indicates that a more severe sentence will apply if the matter goes to hearing.
The Society is concerned that sentencing indications are not necessarily given after the preliminary brief (or in time for the discounts to apply) and are at the Courts discretion. The fact that a defendant could earn up to a 40% sentence discount doesn?t really mean much without knowing 40% of what. The Court can refuse to give an indication and no appeal lies from this decision (s.60AJ(5)). Where sentence is indicated, a judge may not impose a harsher penalty but the right to appeal a sentence is preserved.
The Society is concerned how sentencing indications could work in practice. In particular are sentence indications given on ?agreed facts? or are there still issues in dispute? If the indication is binding in the sense that it cannot be any harsher than indicated, difficulties may arise. If facts are not agreed, an accused could be given a sentence indication on a charge that ultimately may not be proved. In a sense this would appear to inappropriately bind the Court and penalise the defendant. Further, the Crown should be required to consent to the sentence indication to avoid appeals.
Laying of charges
Case conferences appear to create a process similar to a plea bargain. A perception exists that Police ?overcharge? in order to have something to offer in negotiations. Sometimes it is not apparent until the full brief of evidence arrives that the Police were never in a position to prove beyond a reasonable doubt, all of the initial charges. Opportunities to consider the evidence as soon as possible are to be encouraged.
The Society submits that policy changes to laying of charges could also assist in speeding up the Court process. Further evidence would need to be gathered to ascertain the extent of this problem, but the Society submits this could be easily gleaned from comparing numbers of initial charges with charges proved. Recording and reporting on this will also enhance accountability and facilitate better use of the prosecution/ defence/ Court resources.
The Society is of the view that charges should be laid only where they are reasonable and have a realistic prospect of success. The decision to charge should be in line with the ODPP Guidelines which require a reasonable prospect of conviction and be in the public interest. The Society supports greater clarity about the charging policy and applicability of the ODPP Guidelines.
In considering Court procedures in light of the Bill the Society has identified concerns regarding decisions to charge and conduct in Court. There are disparate standards of conduct applying to those appearing before the Courts throughout the Northern Territory and the Society is concerned that this disparity may also be causative of Court time being wasted and undermining confidence in the Court process.
The Society notes that Legal Practitioners are officers of the Court and are subject to Common Law duties to the Court and to their client in the interests of the administration of justice. These obligations are applicable to all Legal Practitioners and are reflected in the LPA and the Law Society Northern Territory Rules of Professional Conduct and Practice (the Rules). The duties and the Rules provide guidance to Legal Practitioners on issues sought to be addressed in the Bill such as candour in Court, requirements of disclosure and specific rules in relations to pleas of guilt and the duties of prosecutors (Rules 17.46-17.58). Failure to adhere to these professional standards can result in a complaints to the Society, investigation and sanction from the Society or the Legal Practitioners Disciplinary Tribunal. Prosecutors that are not Legal Practitioners do not have the same obligations although they do perform the role in behalf of the Northern Territory. The Society submits that there is scope for similar duties and rights of redress to apply to all those seeking to appear before the Court in a professional capacity.
The Office of the Director of Public Prosecutions (ODPP) Guidelines deal with the issue of disclosure, and the application of the Rules to prosecutors. Through a Memorandum of Understanding (MOU) between the Northern Territory Police Force and the ODPP dated 11 February 1998 these Guidelines and Rules purportedly apply to lay prosecutors. The MOU appears to only apply to police prosecutors in Darwin and Alice Springs and does not set out the appropriate avenues for complaint, investigation or sanction of lay prosecutor?s conduct where apparent contraventions have occurred.
In recent times a member of the community has raised concerns with the Society about the conduct of a police prosecutor, assuming incorrectly that similar standards would apply.
It is important that the people of the Northern Territory know the standards of conduct to be expected of prosecutors, that independence is protected whether they be members of the Legal Profession or otherwise performing the role in the course of employment. The Bill presents an opportunity to clarify the prosecutors duties to assist the administration of justice and import obligations and duties at least in line with those applicable to Legal Practitioners. Further consideration ought be given to the appropriate course if these duties are not adhered to.
The Society is supportive of mechanisms that utilise limited resources appropriately. The Society submits that the Bill ought not stray into areas that are appropriately dealt with by way of Practice Direction and furthermore that any purported efficiency measure cannot be at the expense of fundamental principles of the administration of justice.