Commonwealth Director of Public Prosecutions

The Adversarial model in the criminal justice system: what change is happening?

Date of Publication: 
24 September 1997

Author: Martin, B. Date: 24/09/1997 Venue: Heads of Prosecuting Agencies in the Commonwealth Conference, 23-26 September 1997, Wellington, New Zealand.

The adversarial model in the criminal justice system is under challenge - some may even say it is under siege. While there is no serious move towards an inquisitorial model, there are, justifiably, calls in Australia for different procedures and approaches in criminal proceedings. In particular the extent of the "right to silence" in criminal proceedings is being seriously challenged. In too many cases, relying on this "right" the defence use tactics that delay and prolong criminal proceedings by disputing every point rather than concentrating on the real issues. The legal aid system cannot afford the consequent drain on limited resources. The community cannot afford the costs incurred when privately funded accused adopt such tactics and create mega-trials of unreasonable proportion. It is not surprising, therefore, that this issue has come under government scrutiny with calls for modification in the interests of the criminal justice system. It is no longer enough to defend the current practice as an unassailable "right". Despite strong opposition, the United Kingdom has enacted legislation modifying the right to silence both at the investigation stage and during the criminal trial. In Australia, the complex fraud trials from the 1980s provided an impetus for change. Recognising that lengthy criminal trials have a devastating effect on the criminal justice system, by 1992 all Australian governments agreed that reform was inevitable. The longest running trial in Victorian history, the Jetcorp trial of Messrs Wilson and Grimwade, serves as an example. The trial extended over 22 months. Extensive delay was caused not only by illness, but also by the complexity of the evidence and the massive amount of documentation presented to the court. Counsel for one of the accused challenged all the evidence even though that accused's defence was limited to a lack of knowledge of a false prospectus. The other accused declined to admit anything leaving all matters in issue. Arguments on submissions by counsel took a total of 48 days and all were dismissed. The estimated prosecution costs for the committal and the two trials (the first trial lasting seven and a half months was aborted following the death of the accuseds wife) were around $3 million. Appeals were successful in 1994. The Court of Criminal Appeal in Victoria gave the following warning: Let it be understood henceforth, without qualification, that part of the responsibility of all counsel in any trial, criminal or civil, is to co-operate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed: if the present adversary system of litigation is to survive, it demands no less. The system and the community it is designed to serve, cannot easily support the prodigal conduct which was responsible for exacting 22 months devotion to this retrial, a disproportionate part of which was due to the conduct of counsel for Wilson. This is not to deny that counsel are entitled and obliged to deploy such skill and discretion as the proper protection of their clients interests demands. Whether the cost of legal representation be privately or publicly borne, counsel are to understand that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law; and neither privilege nor duty will survive the system of justice of which the court is a part. We derive no satisfaction from making these observations save, by doing so, to give public notice of the peril to which, by this retrial, the system of justice was put. Unfortunately, the courts admonition is not enough. It is clear that principles and procedures encompassed within the adversarial model in the criminal justice system allow tactics of delay and obfuscation which do not serve the public interest of fairness or the administration of justice. The challenge to the administration of justice described in Wilson and Grimwade can only be met by legislative changes to the adversary model in two areas: an increased role for judges in controlling criminal proceedings and a re-examination of the right to silence as it is envisaged to apply to the trial. It is the defining quality of the adversary system that the proceedings are in the hands of the parties. The parties decide the evidence and arguments to be put before the court and what witnesses will be called. Therefore, if unchecked, the parties control the length and complexity of the proceedings. In any criminal trial, but particularly in complex fraud trials, this control over the proceedings can be used tactically to lengthen the trial and confuse the issues before the jury. In recent times the plight of legal aid has increased public recognition that long or delayed trials place an unbearable costs burden on the defendant and the public. Notwithstanding the obvious need for reform, many within the legal profession have been slow to accept the need for changes in attitude and behaviour if the adversary system is to survive. It falls, therefore, to government and the judiciary to intervene. The extent and content of this intervention will necessarily be limited by the adversarial model and considerations of fairness to both the accused and the community but it is essential that judges exercise more control over the proceedings. This is possible without unfairly affecting the rights of the parties. At present, utilising existing powers and discretions, judges possess the power to exercise some control over the conduct of the parties, but there is a need for legislation empowering and supporting the trial judges role in preventing delay and obfuscation and ensuring that only matters truly in issue are the subject of contested evidence. In 1995 Justice Ipp of the Supreme Court of Western Australia, wrote of an increased demand for judicial intervention in the face of the growth of litigation and a decline in government resources. Society, I suggest, is no longer content with the proposition that litigation is a pure "affair of the parties" and the judge is a passive referee having no power - or defacto being extremely reluctant - to control the conduct and unfolding of the litigation. Community values are inexorably moving towards more active judging. In many western nations it is now accepted that judges have a duty to assist litigants. There is a trend towards increased judicial powers and an attenuation of the traditional adversary theory. This development is often justified as necessary to increase the efficiency of judicial administration - making it the judges task to assure a swift and orderly progress of the litigation. Another important justification is the acceptance of judicial responsibility to find the objective "truth" that being essential to the achievement of justice. Justice Ipp mainly referred to civil proceedings in arguing for a greater role for judges in preventing time-wasting and over-elaboration in the presentation of evidence. While the judges power to intervene should be more limited in criminal trials, the judge retains a responsibility to both increase the efficiency of the criminal trial and ensure that the "truth" is revealed to the court. A difficult balance must be struck between these objectives and the traditional rights of the accused. The judge performs this role on behalf of the community. As did the Victorian Court of Appeal in Wilson and Grimwade, Justice Ipp referred to the public interest. He perceives judicial responsibility not as a function of state power nor of the prestige and independence of the judiciary itself, but as a function of an institution that serves the community. This view requires the judiciary to combine impartiality with responsiveness to the individual members of society, at whose service only the system of justice must work. Those who continue to promote the narrow view of the adversary model in the criminal justice system as primarily an unassailable protection for the rights of the accused appear to ignore the right of the community to have the trial proceed efficiently. The public interest is concerned with both the rights of the accused and the wider interest of the community. It is not surprising that the first challenges to the traditional adversarial model came in response to the complex fraud trials. These trials pose particular challenges for the existing system. Typically in such trials, evidence of complex commercial relationships and a multiplicity of transactions is contained in a multitude of documents to be presented and explained to the court. In most Australian jurisdictions, procedural and evidentiary rules have been reformed to accommodate this evidence, but the legal profession has been slow to accept reform in the narrowing of issues, the presentation of evidence and the conduct of counsel. Many still consider it is not in the best interests of the defence to cooperate in order to clarify the issues and simplify the presentation of evidence even where the particular evidence is ultimately not under challenge. The need for reform in respect of complex criminal trials was recognised in 1992 by the Attorneys-General of all Australian jurisdictions. The Standing Committee of Attorneys-General (SCAG) agreed on a package of legislative and administrative measures to deal with complex criminal trials in general and complex fraud trials in particular. The broad aims of the SCAG proposals were:

  • to allow judges to exercise greater control over the pre-trial process as well as the actual trial,
  • to shorten trials,
  • to narrow the issues to be decided by the jury,
  • to streamline the presentation of evidence to the jury, including permitting evidence to be presented in a form which will aid the jurys comprehension of the evidence.

The Victorian Crimes (Criminal Trials) Act 1993 reflects the SCAG agreement. The Act provides for pre-trial procedures under the control of the court. The prosecution must provide a comprehensive prosecution case statement to the accused and the court. In reply, the accused must, within the time set at a directions hearing under the Act, prepare a defence response to the prosecution statement. The defence response, which is served on the prosecution and filed in the court, indicates facts and inferences in the prosecution case statement that are in issue, contains copies of statements of any expert witness that the defence intends to call at the trial, replies to any proposition of law in the prosecution case statement and contains any particular proposition of law on which the defence intends to rely. Of course the defence may place all matters in issue and may decline to concede or agree to any facts or elements of the offence. However, if the defence subsequently does not seriously contest that evidence, the judge may have regard to this in sentencing as indicating a lack of remorse on the part of the offender. Notwithstanding that incentive, a reluctance to fully co-operate remains evident in many trials. Where there has been a preliminary hearing under s5 of the Act counsel for the accused has the right of reply to the opening speech of the prosecutor. The purpose of the reply is set down in the legislation. It is to indicate the facts and inferences with which issue is not taken and to outline the issues in the trial. The judge may limit the length of the prosecutors opening speech or the reply of counsel for the accused. The responsibility for narrowing the issues in a criminal trial must also fall on the prosecution. Where as under the Victorian legislation the defence has a responsibility to respond to the prosecutions case statement, the prosecutor has a responsibility to clearly define and limit to the extent reasonably possible, the issues and evidence in the prosecution case. This includes limiting the number and diversity of charges. While there has generally been a positive response to the Victorian legislation, reform in some other jurisdictions has not been as progressive. Pre-trial hearings may be the norm in complex fraud prosecutions in all jurisdictions, however, in the absence of legislation, the defence may still require the prosecution to formally prove all the evidence. There is little incentive for the defence to cooperate and no sanction if the defence refuses to cooperate. By way of contrast, the judge has the power to apply a number of sanctions to the prosecution which declines to modify a large and complex case with multiple defendants. These include ordering separate trials, ruling on the content of the indictment, and in an extreme case, ordering a stay of the proceedings. At a procedural level in criminal trials generally, some important changes have been made. The Supreme Court of New South Wales uses a procedure whereby a callover is conducted prior to the trial and parties are asked to consent to the making of directions along the lines of the Victorian statutory model. In Western Australia, s611A of the Criminal Code (WA) provides for questions of law and fact to be dealt with and admissions made before trial. South Australia has provision for determining questions of law prior to trial and the South Australian Supreme Court has introduced a system of caseflow management involving pre-trial conferences permitting disclosure by the prosecution and defence. None of these reforms provide any challenge to the adversarial model. The parties remain in control of the proceedings and, while they may consent to narrowing the issues in the trial, there is no sanction should they fail to do so. There is a need for further reform. The Australian Law Reform Commission has published an issues paper on the reform of the adversarial system in civil litigation. In particular, the paper addresses the way in which judges in the civil jurisdictions are becoming more active in defining the issues in dispute and moving cases forward to a hearing. The ALRC paper is addressed only to federal civil proceedings. While an expanded role of judges in the pre-trial area in assisting parties to resolve disputes and reach a settlement might appear to have little application in the criminal jurisdiction, some aspects of judicial management are particularly relevant to complex criminal trials. The paper notes that judges can utilise pre-trial processes to define and narrow the issues and to reach agreement on facts. Judges can also play a role in placing time limits on the completion of pre-trial processes. During the trial, judges can utilise discretions and rules of evidence to facilitate the presentation of evidence in a clear and concise form and to control questioning which is unduly long or irrelevant. In New South Wales, following the SCAG agreement, John Nader QC was asked to report to the NSW Attorney-General on ways of shortening complex criminal cases. The report was presented in 1993. Four years after the report was presented, reform of the criminal justice system in NSW has again been referred - this time to the NSW Law Reform Commission. The terms of reference are: To enquire into and report on the law relating to the right to silence in New South Wales, including but not limited to:

  1. whether such a right should exist at all;
  2. if so, the nature of any inference that should be able to be drawn from the exercise of that right;
  3. the operation of s20 of the Evidence Act 1995;
  4. whether there should be any mandatory pre-trial or pre-hearing disclosure of the nature of the defence and of the evidence in support of that defence;
  5. if so, whether it should be possible to draw any inferences from the failure to disclose such defence or evidence, the manner of such mandatory disclosure, or from any change in the nature of the defence or in the evidence in support of it;
  6. the operation of the current mandatory defence disclosure provisions, including those in relation to alibi, and pursuant to the Evidence Act 1995;
  7. any related matter.

In undertaking this reference, the Commission should have particular regard to the position in other Australian jurisdictions, and in other common law jurisdictions throughout the world. The Attorney-General in Western Australia has asked the Law Reform Commission in that State to enquire into the States criminal and civil legal systems. In this context the Commission will examine the right of an accused person to remain silent and consider measures to compel accused persons to reveal their defence at an early stage. The Chief Minister of the Northern Territory, now also the Attorney-General, has similarly called for a review of the right to silence. He has indicated a desire for reform that encompasses the UK model in the investigative stage. Members of the judiciary have added their voices to calls for reform in this area. In a paper delivered to the 1996 NSW Legal Convention, Justice Davies of the Queensland Court of Appeal, also suggested adopting the UK legislative reforms. He referred to a fair balance between the interests of a person suspected of a crime and the public interest in having criminals brought to justice.While Justice Davies recognises the rights as absolute, he proposes that the jury should be able to draw from the failure to answer, such inferences as appear proper. He notes that although the courts have made inroads into the rule, legislative change is required. He refers to s34 and 35 of the UK Criminal Justice and Public Order Act 1994 which modify the right to silence at both the investigative stage and in court. Under s34 of the UK Act, if evidence is given in criminal proceedings that the accused either before being charged with the offence, while being questioned under caution, or after being charged with the offence or officially informed that he might be prosecuted for the offence, fails to mention any fact relied on in his defence in the proceedings (and which he could reasonably be expected to mention) the magistrate, court or jury "may draw such inferences from the failure as seem proper". The drawing of an adverse inference under the section is discretionary. If the defendant maintains silence throughout and merely puts the prosecution to proof, s34 does not apply. S35(3) of the Act provides that the court or jury, in determining whether an accused person is guilty of the offence charged may draw such inferences as appear proper from the failure of the accused to give evidence or refusal without good cause to answer any question. There is an advantage in drawing from both the Victorian and the UK models to legislate for pre-trial procedures in which the defence will be asked by the court to identify the real issues in dispute. This should include disclosing the essence of the defence. Unlike existing Australian procedures, however, a sanction for non-compliance must exist. It is difficult to envisage an effective sanction other than allowing the judge and prosecutor to comment on the failure of the defence to comply. The jury may then draw whatever inference appears proper. What of the modification to the right to silence at the investigation stage? Considerable caution is required. The ramifications of abuse of power are obvious. At the investigative stage there is no judicial supervision and the "procedure" is inquisitorial. Australian jurisdictions should watch the UK experience closely. The failure by a suspect to mention a fact which is subsequently relied on at trial will often possess probative value. However, if a jury in Australia is to be permitted to draw inferences from such failure, clear safeguards must exist. For example, the questioning must be under caution and recorded on video. The UK formulation should be followed which permits the drawing of inferences only if the suspect could reasonably have been expected to mention the fact which is later relied on at his or her trial. A judge must always possess a discretion to prevent a comment if the drawing of the inference would be unfair or misleading. It is not difficult to envisage circumstances such as the interviewing of a mentally impaired person where the protection of the judge's discretion would be essential. Changes to the adversarial system are inevitable. Carefully managed they will not unfairly affect the interests of accused persons. Judges must be willing to take a more active role, but they require legislative support. Judges must also remember, however, their days in practice and appreciate that from the bench it is not always easy to recognise legitimate and reasonable forensic tactics. Effective change requires the co-operation of the legal profession. Much of the criticism of the profession is unfair, but the unwillingness of many to embrace change provides a ready platform for ill-informed or politically based attacks. Unfortunately the resistance to change is sufficiently widespread to result in the need for legislative intervention. A balanced and reasonable approach by all involved will ultimately achieve a better result.


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