Legislative Council

GOVERNMENT BILL: Major Indictable Offences

May 10th, 2017

On 10th May 2017, Mark spoke to the Summary Procedure (Indictable Offences) Amendment Bill 2016.

The Hon. M.C. PARNELL: I rise also to speak on the second reading of the Summary Procedure (Indictable Offences) Amendment Bill. At the outset I would like to put on the record my thanks to the surprisingly large number of people who took the trouble to contact me and to speak with me about this bill. I had a couple of fruitful meetings with the Attorney-General and his staff.

I also thank Adam Kimber QC, the Director of Public Prosecutions, who generously made some time available to discuss this bill with me, and also a number of members of the South Australian Bar. I will not name them all, because some people were keen not to be on the record, but those who came to see me included David Edwardson, Ian Robertson, Gilbert Aitken, Bill Boucaut and Anne Barnett. When bills come before us in this chamber it can be difficult to predict the level of controversy that will attach to each bill. Sometimes it is obvious; there are other bills which often take us a bit by surprise, but this bill certainly has created great consternation amongst lawyers over the last six months.

I think there is universal acceptance of the objective, which is freeing up the District Court criminal list, the more efficient management of cases and the more expeditious resolution of matters. I might just refer to the first four paragraphs of the Bar Association's submission (not its full submission, but its executive summary) because I think it quite succinctly sums up its support for the objectives of the bill, even if they don't support the detailed measures that the bill contains. The submission reads:

The South Australian Summary Procedure (Indictable Offences) Amendment Bill claims as its purpose to make 'efficiency changes for major crime cases'. The Attorney-General asserts that the 'reforms' will, amongst other things, 'make prosecution and defence reveal more about their argument in advance so they can identify and focus on the real issues in dispute'. He is simply wrong. 

The catalyst for this Bill is the enormous backlog of criminal cases in the District Court. The Attorney-General argues that this is caused by the number of trials being vacated due to late guilty pleas. He says that the responsibility for that lies at the feet of the defendants and their representatives. Again, he is wrong. 

In truth, the large backlog arises because the Office of the DPP does not have the resources it requires. For example, a prosecutor is not appointed to a case until a trial judge is allocated. That means a matter is being set for trial, and it is often then too late for any meaningful negotiation. Negotiation occurs usually on the doorstep of the trial court. This often results in a late plea to a lesser charge after the prosecutor makes a binding decision. 

Another frequent cause for matters coming out of the list is the late disclosure by both the commonwealth and state DPPs. Then of course we have over listing, not enough judges or courts because of more than 15 years of government neglect. These 'causes' are not reflected at all in the proposed 'reforms'. 

So, the Bar Association agrees with the problem, but they do not accept the government's solution, so that is where consensus ends. Many of those to whom I have spoken claim that this bill, in any event, will not achieve its objectives, or at best it will only do so at an unacceptable cost of the cherished legal principle, such as the right of defendants to put the prosecution to its proof without revealing it is own hand, and the related right of a defendant to remain silent, leaving it to the prosecution to prove every element of the offence.

A number of suggestions have been made that are outside the scope of this bill that some believe will do more to reduce congestion in the courts. I have referred to some, but in summary these suggestions tend to involve increased funding for the key players in the criminal justice system, including the DPP, Legal Aid and the courts themselves.

Not surprisingly, when there is debate about the cause of delays in criminal trials, there is a great deal of finger-pointing and blame. It is hard to get to the truth of the matter. For example, an adjournment which results in a delay in a trial might be secured at the request of the defence, but that does not mean it is the fault of the defence. It may just as likely be some delay on the part of the prosecution that drives the defence to seek an adjournment.

I was interested to see that the Bar Association did a survey of some of its members of the criminal bar and invited them to fill out a questionnaire asking how many cases had been delayed and what was the cause. What that table shows is that late disclosure of key information by the prosecution and the unavailability of key expert witnesses was just as likely to be the cause of delay as anything else.

So, I think it is not correct to say that delays universally or even overwhelmingly are a problem with the defence. Similarly, I do not think it is correct that creating more onerous obligations on the defence will necessarily improve case management. That is not to say that the bill before us is without merit. There are a number of small changes that can be made that make the bill more acceptable.

Technically, the key sticking point has been a new requirement on the defence to lodge a case statement before trial. Proposed section 123(4)(g) includes an obligation to disclose, 'the nature of the defendant's defence (if any), including particular defences to be relied on;'. According to the Bar Association, this infringes the right of the defendant to remain silent and to put the prosecution to its proof, which is, as I said before, one of the fundamental tenets of our legal system. The Attorney-General, on the other hand, says that this bill does no such thing.

I will refer to one more submission. This one is a letter written by Ian Robertson SC, the President of the South Australian Bar Association. It is a letter that he wrote to the courts reporter of the Adelaide Advertiser but also made available to members of parliament. To give you a paragraph which explains the legal problem as the Bar Association sees it, the letter reads:

…the legislation imposes an obligation on an accused person to file a Case Statement. The details of the content of the Statement is set out in the misnamed  Summary Procedure  (Indictable Offences )  Bill.  In very general  terms  it requires an accused  to state  their defence  ( possibly in the absence of the evidence that is required to be disclosed to them). 

I guess most of us have seen a law film. I suspect nearly everyone knows that they have the 'right to remain silent'. Not anymore, once the case gets to the time prescribed by the bill. The bill erodes and in some cases abolishes that right.

The Bar Association is keen to see some changes made. In my view of this bill, I think some of the provisions do infringe the right to silence and so we will be supporting amendments that remove that particular requirement of defence case statements; that is, the requirement to effectively outline or identify your defence.

Of course, in legislation if you create an obligation in law, you also need to create an appropriate consequence for the breach of that obligation. In the case of defence case statements, the consequences of not complying with this new provision is that the court may allow an adverse comment to be made about the defendant to the jury. According to most of the lawyers that I spoke to, their assessment was that such an eventuality was unlikely. It was unlikely that judges would allow an adverse reflection to be made to the jury because a defendant had failed to either detail their defence in a case statement or had somehow deviated from the defence that they had set out in their case statement.

Most lawyers said that they really did not think a judge would allow that to happen. Nevertheless, that is what the bill says can happen, so we also need to remove that consequence that would flow from failure to lodge a comprehensive case statement, as set out in the bill. I think they are pretty minimal changes, but they are important changes to protect the basic legal rights of defendants.

Another related amendment I will be moving is a provision that relates to the availability of subpoenas. According to this bill, subpoenas cannot be sought until the defence has lodged its case statement. That means that there could well be a gap of days, weeks or even months in which it is impossible for the defence to seek a subpoena in order to preserve important evidence that relates to the case, and I do not think that is acceptable. The view we have taken is that the need to preserve evidence can arise at any time prior to trial. Limiting the ability of a party to apply for a subpoena until they have complied with certain administrative steps is unfair and could lead to unjust outcomes.

I have referred very briefly to some Greens' amendments and to the Liberals' amendments that we will be supporting, but we have also seen amendments filed by the Hon. John Darley in relation to the rights of victims to be advised about changes in the prosecution, such as the dropping of charges. Whilst we have not gone through those in detail, they seem to be sensible and we will have a close look at them and consider them at the committee stage. Similarly, some government amendments have just arrived today that we have not had a chance to consider, but we will do so before the committee stage. At this point, the Greens are happy to support the second reading of this bill.

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