2nd Reading Speech

19 September 2018

The Hon. ADAM SEARLE (15:45): I lead for the Opposition on the Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2018. The Opposition does not oppose what appears to be a non‑controversial bill based largely on the recommendations of the statutory review of the Criminal Procedure Amendment (Pre-trial Disclosure) Act. The provisions of that legislation commenced in September 2013 and a statutory review was required within three years. The object of the bill is to amend the Criminal Procedure Act. The specific amendments proposed to the principal Act include requiring the prosecution to disclose certain material relating to audio or visual evidence in the notice that the prosecution is required to give to the accused person.

This bill also requires that the notice that the accused person in turn gives to the prosecution discloses material relating to expert evidence, gives notice of any proposal to raise any issues relating to the continuity of custody of exhibits and any significant issues relating to the form of the indictment and the prosecution of the counts of the indictment, and includes any request to edit any audio or visual recording or the transcript of any audio or visual recording that the prosecution has disclosed an intention to adduce at the trial and details of the edits required. Finally, the bill requires the prosecution to respond to any request by the accused person to edit audio or visual recordings or transcripts of them. These provisions resulted from the recommendations of the statutory review. Recommendation 1 of the review provided that the principal Act should be amended to require the defence to disclose the following material without a court order:

A copy of any expert report that the defence intends to rely on

Notice as to whether the defence disputes the continuity of custody of any proposed prosecution exhibit;

Notice as to whether the defence will seek to amend the indictment or seek a separate trial on any of the counts on the indictment; and

Notice as to whether the defence proposes any edits to audio or video evidence the prosecutor intends to use in the trial.

Recommendation 2 provided that the Criminal Procedure Act:

… should be amended to clarify that the prosecution must serve any transcripts of recordings where it proposes to adduce the transcript at trial, and that the prosecution must provide a timely response to any edits to audio or video evidence proposed by the defence.

It is worth noting that not all proposals made to the departmental statutory review were adopted by the review. There have been various steps towards mandatory disclosures at different points of time. There was legislation in 2001, 2009 and 2013. The requirements now are set out in legislation as clear obligations rather than being left to the discretion of the court. Section 148 of the Criminal Procedure Act importantly allows the court to waive any of the requirements if it is in the interests of the administration of justice to do so.

Reducing unnecessary disputes and reducing the time spent on uncontested elements of a case is a good thing if it can be done in a fair way. It makes sense and is an entirely comprehensible basis for the development of pre-trial disclosure. However, as both the statutory review and the Attorney’s second reading speech make clear, there is another powerful motivating factor behind such changes. That factor is the overwhelming and often catastrophic delay currently being occasioned in the District Court criminal trial system. The New South Wales Law Reform Commission report entitled “Encouraging appropriate early guilty pleas” dates from 2014. The commission at that stage—four years ago—described the District Court criminal trial system as being in a state of crisis. Not much has changed since, even though it is now four years later. Delay means the memories of witnesses are potentially less reliable, the quality of justice is perhaps less certain, the anguish of victims is extended, uncertainty for the accused is increased, and prosecutors, defenders and police are all tied up for longer. None of these are good public policy outcomes. To quote from page 2 of the statutory review that gave rise to the bill:

The time it takes for a criminal trial to be listed and to be heard has increased significantly over the last decade …

It decreased slightly from 2009 to 2011 but has been on an upward trajectory ever since. The report emphasised at page 3:

Trial delays and longer trials have a significant impact on the criminal justice system, including increased cost burdens on the courts, the police, the prosecution, and legal aid providers, as well as a detrimental impact on juries, victims of crime, accused persons and witnesses.

For those people held on remand who are subsequently acquitted or not sentenced to a custodial term, leaving aside the personal tragedy of holding them in jail unnecessarily, what about the unnecessary cost to taxpayers for holding those people in jail? We have been reminded of these issues by the letter from President of the Law Society of New South Wales Doug Humphreys to the Premier dated 14 August 2018. The number of matters committed for trial from the Local Court to the District Court from 2012 to 2016 rose by around 36 per cent while the number of matters committed for sentence rose about 24 per cent.

Mr Humphreys pointed out that the 2017 Productivity Commission Report on Government Services [ROGS] showed that the New South Wales criminal justice system was the most inefficient in Australia. This status has arisen as the workload of the courts has increased—perhaps to breaking point. None of the individually worthy projects and proposals intended to help around the edges with delay, such as this bill, will make a real impact without the allocation of additional resources to the strained court system. The Government’s response is to talk of the policy of appropriate early guilty pleas. I will be interested to see that when it happens. This policy was recommended four years ago and still has not effectively commenced in this State.

We on this side of the House are concerned by the increasing number of senior legal practitioners who have expressed reservations as to whether it will work. As was said when earlier legislation was debated, in theory it is an entirely sensible strategy and policy, and the Opposition welcomed the Law Reform Commission’s recommendations when they came out. However, we are increasingly concerned at the number of persons who are sceptical about its practicability. The Labor Opposition does not oppose the bill, but we feel that a great deal more is required to deal with the District Court crisis. Legislation such as this, that goes to procedures, is important to be contemplated and implemented where it may be effective, but none of this is a substitute for the adequate and proper resourcing of the administration of criminal justice in this State, particularly the system of criminal trials and ensuring appropriate judicial resources.