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11 Apr 2017

Summary Procedure (Indictable Offences) Amendment Bill

Adjourned debate on second reading.

(Continued from 2 March 2017.)

The Hon. A.L. McLACHLAN ( 17:31 :52 ): I rise to speak to the Summary Procedure (Indictable Offences) Amendment Bill. I speak on behalf of the Liberal opposition. The Liberal opposition will support the second reading of the bill. At this stage of the debate I indicate that the Liberal Party is likely to seek to amend the bill, having regard to the views of the Law Society, the Bar Association and other concerned members of the legal profession. Honourable members will be aware, as I have declared on many occasions, that I am a member of the Law Society.

Clauses in this bill have given rise to great alarm for those who practise in criminal law. While I acknowledge that the government consulted the legal profession on this bill before it was tabled in this place and made some changes in response to concerns, certain clauses that remain in this bill are still strongly opposed by the representative bodies of the profession. In respect of these provisions, the legal profession as represented by these bodies takes a repugnant view. The Liberal Party has great sympathy for their position.

The bill seeks to amend extant criminal procedure and the conduct of criminal trials in this state. The objective of the bill is to dictate pre-trial disclosure from both the prosecution and the defence. It is accompanied by a separate bill, which is before this chamber, that provides for sentence discounts for early guilty pleas. Together, they are an attempt to improve the efficiency of the criminal justice system.

I intend to keep my comments in this debate focused on those parts of the bill that are the most contentious. The bill requires the prosecution to provide a case statement no less than six weeks before an arraignment date, when the defendant usually enters their plea. The defence must then provide a case statement no more than four weeks after receiving the prosecution statement. The provisions of the bill set out a prescriptive list of what must be included in these case statements.

Alarmingly for the defence, this includes the nature of the defence and the particular defences to be relied upon. This, prima facie, encroaches on the accused’s right of silence and to put the prosecution to proof. The Liberal Party has great difficulty accepting the inclusion of this particular provision in the bill, having regard to the longstanding principles that underpin our democracy and the rights of the individual. I seek clarity from the government at the summing up of the second reading debate on what is envisaged will constitute a declaration of particulars of a defence. Presumably the prosecution can rely on any subsequent inconsistent statement. I also seek clarity from the government on this point at the summing up of the second reading debate.

Should the defence fail in providing the necessary information then the judge can make comment about this to the jury. This is a sanction that the defence risks, should it fail to comply. There is no corresponding sanction on the prosecution, although I acknowledge that it is difficult to identify what circumstances would arise in respect to the prosecution where such a sanction would be used. Failure of the prosecution to comply would likely result in an adjournment or dismissal of the charges. Both courses of action benefit the defence case, although delay adds to the stress of the accused.

In my contemplation of the bill and my preparation for this debate I have drawn on the advice of leaders in the legal profession. I have also drawn on my experiences, being a defence counsel, as well as when I was a prosecutor in certain cases in the military justice system. I have also had regard to academic papers and dusted off an old text used in my youth, penned by Glanville Williams, now passed.

When debating the bill in the other place, the Attorney-General bandied about a quote from the Right Honourable Sir Robin Auld, which came from his review in 2001 of the criminal courts of England and Wales. I will not repeat it here; he repeated it enough times in the other place. In essence, the quote from a vast report into the purpose, structure and workings of the criminal justice system in England and Wales suggests that criminal trials are not a game but a search for truth and therefore pre-trial disclosure is warranted.

What the Attorney-General did not say in the other place is that the changes to pre-trial disclosure were not universally accepted in England and Wales; in fact, it remains hotly disputed. Further, this view, as far as it has guided a legislative response, has caused difficulties and, very importantly, it is only one component of the reform suggested to ensure justice whilst seeking efficiencies.

I note the Attorney-General did not, in the House of Assembly, give its members the benefit of Sir Robin’s view that the prosecutor must be strong, independent and adequately resourced, and that there must be an experienced, motivated defence lawyer adequately paid for pre-trial preparation. In other words, if you demand pre-trial disclosure, you must also adequately resource the criminal justice system in its entirety.

Each part of the process must work effectively, otherwise the defendant will suffer prejudice. Procedures and rules are far less important than the manner and spirit in which they are administered. Every participant has a key role to play to give effect to an efficient and well-administered criminal justice system. This includes the impartiality and dedication of judges, the fairness of prosecuting counsel, the restraint of defence counsel and the care taken by the police to preserve public confidence, including respecting the rights of the suspects and not overcharging the accused.

It does not matter how detailed or prescriptive legislation or court rules become. A crime must be properly and diligently investigated by the police. The accused must be charged. The brief must then be assessed by the prosecuting counsel and full disclosure given to the defence. Only then can the defendant, with the advice of their defence counsel, make an informed decision on how to respond to the charges. If the process works like this every time, I suspect then that this bill would not ever have been conceived, but the workings of the criminal justice system are not simple, they are complex.

There is nothing wrong with the desire of the government to place importance on the early identification of issues, but this may be impossible to achieve, especially without increased resourcing of the police and the DPP, as well as increased funding of legal aid. The Attorney-General’s rationale for the necessity of this bill is, in essence, that the delays in the criminal justice system are all the fault of the defence counsel. In other words, the defendant and his or her lawyer are being blamed by this government for being uncooperative. This is unfair and cannot be justified.

Honourable members should note that failures in regard to prosecution disclosure can cause miscarriages of justice. Failings in regard to defence case statements only impacts supposed efficiency. I see no justification to seek to take away the rights of a defendant. Focus should equally be on the investigation, preparation and prompt disclosure of the prosecution case. I remind honourable members that our criminal injuries system is adversarial. The Sentencing Bill before this chamber rightly offers inducements for defence cooperation. I suggest that this will have the greatest impact on the behaviour of defendants and will drive their cooperation.

The delays in our criminal justice system are the result of a chronic lack of funding into the system as a whole. By the time of the next election we will have had 16 years of neglect and inaction, with only an echo of a chest beating by government members that they are tough on crime. The principles of criminal procedure embody a system of values. As Glanville Williams writes, ‘These values do not have to be changed with the march of knowledge of the material world.’ We must remember where we have come from. The Star Chamber in England could summon a defendant with no warning of the charge to be made against him and examine him on oath. The chamber often used the rack to elicit confessions. Thankfully, we have moved on.

Today, our values dictate that a person charged with an offence against the state may be defended by a member of the legal profession, who has a duty to his or her client and is allowed to raise every point of fact and law, however technical, that may secure his or her client’s acquittal. Yet, we have seen this very day, in this bill before us, that these values subsequently adopted by civilised countries to arrest the horrors of the Star Chamber are now under challenge.

In my personal view, it is because of our past that we must instinctively resist initiatives that require a defendant to disclose the defence ahead of arraignment for trial. If such disclosure is to be required, then it might only be considered in limited circumstances, and close to the commencement of trial. It is a seductive suggestion that the discovery of truth and the reduction of cost are best achieved by cooperation in the pre-trial process. I acknowledge that this logic has instinctive appeal but, like the apple from the tree of knowledge, it has very seductive qualities that veil the potential ruin that lies ahead.

This can be seen in the government’s fact sheet that sought comment on these initiatives. The catchcry emblazoned at the top is ‘Putting people first’. It implies that these initiatives benefit the community as a whole without cost. This is an old socialist mantra, a classic abuse of logic and language: appeal to the mob by oppressing the few. Instead, we should always seek to protect the rights of the individual as the only true way to protect the whole community. These changes attack our longstanding accusatorial system of justice.

Our criminal justice system must have protection for the individual against the capricious actions of the state, however unlikely. We do not need to look that far into our past to find the case of Keogh. The Keogh case should make every honourable member in this chamber very uncomfortable. In justifying these initiatives, the government is inferring that defence practices heighten the risk of unmeritorious acquittals. I do not believe this to be justified.

Defence counsel have a duty not only to their client but also to the court. They are key to ensuring the system remains fair and retains the confidence of the community. It is also too simplistic to argue that the defendant always knows the truth and should be forced to reveal their case at the earliest opportunity. In reality, there are many circumstances where the defendant may not be sure whether or not they are guilty. There are cases of extreme intoxication, complex corporate trials or even cultural reasons that mean it is very difficult for a defendant to understand the circumstances that they find themselves in.

Alternatively, the defendant may be concerned with the intimidation and manipulation of their evidence if they cooperate at an early stage. Fair trial rights should always prevail over the needs of the Treasury for efficiency and cost savings. I can still remember my early days as a young lawyer defending unfortunate individuals who found themselves in difficult circumstances. When you stand alongside the defendant, you realise the extent of the resources available to the state and how little is provided to the defendant. This is burnt in my memory.

This government has sought to worship at the altar of the god of efficiency, but to placate this golden calf it is willing to sacrifice the rights of the individual, rights that are important to all of us in the community. The government is disregarding longstanding community values that have nurtured our people and ensured that their relations with each other are governed fairly. This bill introduces principles of judicial criminal case management in an attempt to impose a regime that is solely designed to extract efficiencies. There is no consideration of the cost of betraying our longstanding community values.

In our society, we hold the belief that individuals are decent and law abiding until proven otherwise. We respect the dignity and autonomy of the individual and expect that the state must demonstrate it has reasonable grounds for suspicion before interfering in an individual’s affairs. The requirement to disclose the defence ahead of arraignment is not congruent with the presumption of innocence, the privilege against self-incrimination and the right to legal assistance.

It can be argued that the changes to defence disclosure requirements represents a leaning towards a more inquisitorial process. This ideological drift must be resisted. The Liberal opposition encourages initiatives that seek to improve the efficiency of the criminal justice system, but not at the unreasonable expense of the rights of the individual and certainly not without improved resourcing of the criminal justice system.

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