Author: Rozenes, M. Date: 08/03/1996 Venue: Civil Justice Reform: streamlining the process, Litigation Reform Commission, 7 and 8 March 1996, Brisbane
The adversarial system does not readily lend itself to judicial intervention in the criminal trial process. Careful consideration must be given to the use of civil procedure in criminal cases.1 However, it is submitted that techniques of trial management and pre-trial disclosure can contribute to the efficient and just conduct of all but the briefest and simplest trials. As Justice Badgery-Parker of the Supreme Court of NSW recently stated: the interests of justice are not limited to the interests of the accused but include the interests of the victims of crime, jurors and the community in seeing that crime is punished, the innocent go free, criminal conduct is deterred and public funds are expended wisely. There is tension between the demands of principle and pragmatism. Any reforms which impair the traditional rights of defendants should leave intact so much of those rights as is necessary in the interests of justice and a fair trial.2 The inadequacies of the criminal justice system particularly in complex fraud trials, led in the United Kingdom to Lord Roskill's Fraud Trials Committee Report in 1986 which laid the basis for the Criminal Justice Act 1987(UK). This Act established a separate procedural scheme for the investigation and prosecution complex fraud cases. The Australian Institute of Judicial Administration (AIJA) commissioned a report titled Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure from Associate Professor Mark Aronson, University of NSW which was presented in 1992. The Australian Standing Committee of Attorney's General (SCAG) considered the proposed reforms at its meeting in August 1992 and made in principle decisions, leaving each jurisdiction to develop its own legislation. Victoria enacted the Crimes (Criminal Trials) Act 1993 (Vic). In NSW, John Nader QC produced a submission to the NSW Attorney General concerning complex criminal trials in September 1993. NSW legislation to implement the Nader Report is currently in the course of preparation.3 In the meantime, the Supreme Court of NSW has adopted a procedure whereby a callover is conducted prior to trial at which the parties are asked to consent to the making of directions along the lines of the Victorian statutory model.4 In Western Australia, statutory provision has been made for questions of law and fact to be dealt with and admissions made before trial.5 South Australia had also made provision for the determination of questions of law prior to the trial and, like NSW, the South Australian Supreme Court has introduced a system of caseflow management involving pre-trial conferences permitting disclosure by the prosecution and defence.6
1. To what extent does the rule against self-incrimination preclude use of techniques from civil procedure (pleadings, discovery) in criminal cases.
The right to silence "is firmly entrenched in our common law." 7 The common law rule8 protects the accused from being required to co-operate with those who are investigating his or her conduct and, in the context of the criminal trial, encompasses the right to decline to indicate a line of defence before the close of the prosecution case9 or to make any admission of fact that may excuse the prosecution from proof of that fact. The right to silence carries with it the correlative right that the accused should be immune from adverse comment for exercising the right. The right to silence, as described above, permits an accused to utilise a general defence where the prosecution is put to proof on all the facts, whether or not they are in dispute in the hope that the prosecution will fall at some small but forensically imperative hurdle resulting in the acquittal of the accused. Furthermore, in the absence of knowledge as to what the issues in the trial are, the trial judge lacks the factual foundation necessary to properly control the proceedings and, in particular, the ambit of examination and cross-examination. It is argued that the criminal justice system cannot afford to continue to consume valuable court and legal resources ventilating issues that could not seriously be put into contention by the defence and that procedures are required to crystallise the issues in dispute before a jury is empanelled so that cases can be presented as simply and efficiently as possible. Procedures which are said will "crystallise the issues" are, at least in the case of an accused seeking to put the prosecution to proof on all matters, nothing less than a significant interference with the right to silence - justified, it is said, because the accused is nevertheless able to put the prosecution to its proof on those matters which are genuinely in dispute. The argument is advanced that a distinction can legitimately be made between the defendant's right to silence in the courtroom and that right in the context of police questioning. The civil liberties protected by the right to silence are most threatened in the context of police questioning of a suspect. However, the defendant's failure to answer questions in front of a judge carries less danger of being misreported (?) or misinterpreted and perhaps may be compromised to achieve a more effective criminal justice system. Certainly the right to silence has in recent years undergone substantial whittling at the hands of the legislature10 and the courts both here and overseas. The High Court has decided that the privilege against self incrimination was not available to a corporation. 11 The Court has also held that whereas no adverse inference can be drawn from a late defence following earlier silence,12 silence at the trial by an accused may in certain circumstances provide probative evidence of guilt.13 With respect to the decision in Weissensteiner, Sir Anthony has commented that "[t]his is not to deny the right to maintain silence; it is merely to recognise that the jury cannot shut their eyes to the consequences of exercising that right."14 Provided the defendant's disclosure obligations are limited to that which is necessary to allow the prosecution to avoid addressing areas that are not genuinely in dispute, the abrogation of the privilege against self incrimination in this limited way may be acceptable.15
2. Should a person accused of an offence be encouraged or obliged to define or narrow the issues at trial. If so, how?
Defining or narrowing the issues at trial is essential to the reform of criminal procedure provided it does not marginalise the role of the jury and therefore fundamentally alter the character and concept of fairness on which the criminal trial is based. Pre-trial hearings have become the norm in Australia in complex fraud prosecutions and have some basis in statute or the rules of court in several jurisdictions.16 Pre-trial hearings will only be effective if they bind the trial judge and force the parties to focus on the issues. The SCAG agreed on a set of principles which included allowing judges to exercise greater control over the pre-trial process by the introduction of a "directions hearing" to be conducted prior to the empanelment of the jury. This is, in effect, a limited form of criminal pleading where the parties identify the issues likely to be material to the verdict to expedite the proceedings in front of the jury and aid its comprehension. Any issues of law or fact which would otherwise be determined on the voir dire in the trial proper can be determined prior to the jury being empanelled. The Crimes (Criminal Trials) Act 1993 (Vic) requires comprehensive prosecution disclosure with the provision of a case statement to which the defence must respond by providing copies of statements of expert witnesses, replying to any propositions of law in the prosecution statement and indicating any on which the defence proposes to rely. In addition, once the indictment has been filed, the defendant must indicate which of the elements of the offence are admitted. One of problems identified in regimes where defence disclosure is required is that the defendant is allowed substantial latitude in replying to the prosecution case statement. In Victoria and the UK, the defendant need only set out the nature of the defence in general terms and indicate the principal matters on which they propose to take issue. The response can be unhelpful in identifying the issues. The Nader Report sought to avoid a general denial by providing that if a material allegation of fact in the prosecution statement is not specifically pleaded to in the Defence Response, the fact shall be taken to be admitted by the defendant.17 A more appropriate solution is recommended by the Director of the UK Serious Fraud Office who suggests that the prosecution should produce a schedule of facts where each statement of fact is cross-referenced to the evidence. The defence would then be required to indicate whether each fact relied on by the prosecution was agreed to and, if objected to, whether the objection was one of law or fact. The objections could be dealt with at the preparatory hearing. The prosecution could then prepare a single document with alternative statements of fact where there was a disagreement. If the defence failed to respond to the prosecution document, the schedule could be given to the jury with the comment that it had failed to do so except for disagreeing. It is not in my opinion sufficient to merely encourage a defendant to narrow the issues at trial.18 It is my view that pre-trial processes will not succeed unless there are effective sanctions to oblige the defence to comply with their disclosure obligations. I am sufficiently sceptical not to ascribe to the belief held by Professor Aronson that the dynamics of the exercise will see common sense prevail.19 Sanctions suggested include:
(a) Adverse comment - The UK Act permits comment to the jury if a party introduces evidence at trial which was not disclosed at the preparatory hearing.20 The Victorian Act and the Nader Report recommend a similar provision. This has not proven effective in diminishing obstructionist tactics in the UK where the defendant merely gives a general denial at the preparatory hearing.21 It has also been criticised as unduly technical and likely to produce an appeal point. Judges have been loath to use it in the UK.22 In addition, any comment would be likely to lose its force if the non-disclosure is attributed to a misunderstanding or error by the defendant's legal representatives.
(b) Prevent accused from going into evidence on a previously undisclosed line of defence - I support the proposal by Justice Wood that the trial judge should be given a discretion to exclude evidence of a previously undisclosed line of defence in the same way that leave is required to call evidence of an undisclosed alibi. However, I agree with Justice Badgery-Parker's view that it is hard to imagine that [leave] should ever be refused if the judge is satisfied that there is a bona fide issue or matter of defence upon which the accused wishes to rely.23 Where an accused has complied with his or her disclosure obligations during the directions hearing, it would be unfair to preclude that accused from relying on a line of defence which only emerged for the first time after the prosecution had opened its case to the jury. However, it is appropriate in that situation to reverse the rule against the Crown splitting its case and allow it to re-open. (
c) Costs - Costs should be awarded against a defendant who fails to comply with the preparatory hearing procedure or unreasonably refuses to admit facts which were never really in dispute or adequately identify issues. Costs orders have been provided for in the UK, including an order against a legal representative, and are part of the SCAG package. I note the difficulty of linking such provisions with legal aid.24 I also agree with the Nader Report that there would be very few accused who would be deterred from taking any position that they thought might assist their case by the threat of having to pay costs. The accused may be impecunious or would simply regard the matter of costs as tomorrow's problem.25 Of course, the same sanction should apply to the prosecution.
(d) Discount on sentence - The defendant's unreasonable lack of co-operation in pre-trial procedures is a circumstance warranting a more severe sentence than would otherwise have been appropriate. This is not an infringement of the defendant's right to make a defence because to put the prosecution to proof where something could not seriously be in issue is not putting a defence. It is an indication of lack of remorse and should be dealt with accordingly by the sentencing judge. This is acknowledged in the Victorian legislation.26 I reject the view that it is unfair and inconsistent with our international obligations to do so.27 The AIJA Report and the SCAG recommended that a defendant who co-operates in the trial process should receive a discount on sentence. This was also supported by the Nader Report. Justice Badgery-Parker supports this view and maintains that such discounts are already given under the directions procedures in the NSW Supreme Court.28 It is my view that it would be inappropriate for any reduction in sentence to be greater than that given for a plea of guilty. As a result, the discount would be so minimal that it would not provide a significant incentive. An effective sanction package should include adverse comment, the exclusion of undisclosed evidence except by leave, costs orders against both the defendant and their legal representatives and the prospect of lack of co-operation being taken into account on sentence. Although all have their limitations, any one or a combination of these sanctions may be appropriate in a particular case.
3. In what circumstances should legal questions and those involving the exercise of judicial discretion be decided in advance of a criminal trial? Should there be a right of appeal at that stage
Contrary to the recommendations of the Roskill Committee, the UK Act provides for a system of interlocutory appeals from preparatory hearing determinations. The Nader Report also recommended that orders at preparatory hearings be subject to appeal and that the jury trial await the outcome of such appeals. The Victorian Act does not provide for or preclude appeals. The SCAG agreed that there should be some limitation on interlocutory appeals but left the form of that limit to each jurisdiction. I note that South Australia has recently introduced a provision allowing a defendant, with leave, to appeal against rulings made before the commencement or completion of the trial.29 A preparatory hearing is not a pre-trial review but part of the trial itself and accordingly its rulings should be immune from interlocutory challenge, consistent with the principle that no right of appeal should be exercised when a trial is in progress. Rather, it should be exercised if and when the defendant is convicted because the possibility of avoiding a trial is outweighed by the disadvantage of considerable delay and fragmentation of the prosecution process. The only exception is where a ruling is not concerned with how a trial proceeds but whether or not it will proceed eg. the court has ruled that it would be an abuse of process to allow the trial to continue by reason of delay. In this case it is appropriate for the decision to be reviewed by a higher court. The Commonwealth has had bitter experience with the review of pre-trial decisions being used to frustrate and delay the criminal process. Decisions made in relation to Commonwealth prosecutions such as the decision of a Magistrate in committal proceedings, may be challenged under the Administrative Decisions (Judicial Review) Act 1977 (Cth)(ADJR). Although the Federal and High Courts have consistently said that they will only interfere in exceptional cases so as to avoid fragmentation of the criminal process, experience shows that if there is a right of appeal, it will be used to cause substantial unwarranted delay. No issue of principle is involved in excluding such decisions as the procedures associated with the conduct of a criminal prosecution necessarily provide an adequate review of prosecution decisions and sufficient checks and balances to safeguard the interests of defendants. I support the exclusion of committal and prosecution decisions from the ambit of the ADJR.30
4. Is there any scope for mediation in criminal matters? If so, for what purposes?
There is limited scope for the introduction of mediation in criminal matters ie. the use of a neutral third party to facilitate the disputants finding their own solution to a dispute. The Australian Federal Police introduced a Diversionary Conferencing program in the Australian Capital Territory (ACT) in 1994 whereby the offender, the offender's family or friends and the victim attend a conference to discuss the crime committed with particular emphasis on its effect on those present. The victim is encouraged to seek reparation or compensation. The program operates as an alternative to police cautioning where the offender acknowledges responsibility for the offence and the offence does not involve serious crime, domestic violence or sexual assault. The offenders are usually but not necessarily young people. Early results indicate that the program has been successful. A detailed evaluation is yet to be conducted.31 I support the use of mediation in this limited area but maintain that it will only be appropriate where there is an identifiable victim and has no application to crimes involving the importation, use and sale of drugs or where the offender or victim is a company or institution. Mediation is appropriate in civil cases where the dispute is constituted by two parties seeking a mutually acceptable resolution. This is only one of a number of aims of the criminal justice system and for that reason, the use of mediation should be limited to the circumstances set out above.
5. Should court appointed experts be used in criminal matters? If so for what purposes?
The Litigation Reform Commission of Queensland has recommended the introduction of a system where expert witnesses in civil cases will be appointed by the court and the parties will have no right to call opinion evidence. The parties will be required to identify a question requiring expert opinion in their pleadings and the judge may at any time appoint an expert from a list of experts kept by the court to provide an opinion on the question regardless of whether either or both of the parties object to such an opinion being given. The expert will report to the court but whether or not sworn evidence is given is a matter for the judge's discretion. The parties will have a limited right to question the expert with a view to showing the opinion is based on incorrect facts or is erroneous. The judge may order the provision of a further opinion or appoint another expert. 32 The appeal of this proposal for criminal matters is similar to that for civil cases namely: (a) an expert appointed early may resolve an issue and prevent the need for a trial; (b) even if the expert's opinion did not resolve the issue, it would reduce the cost to the parties of contesting the issue; and (c) faced with opposing expert opinions, a judge without the relevant expertise, would not be left to decide between adversarial experts. This proposal represents a significant modification of the adversarial model. In relation to (a), I see difficulties in the court selecting a suitable expert and in the defence having only a limited right to cross-examine such an expert. Criminal matters, particularly complex fraud, often involve expert opinion on questions of accounting and medicine that are dealt with regularly in civil cases. However, they can also involve questions of forensic science. Expertise in this area was formerly limited to law enforcement agencies and reputable private forensic scientists are still rare. It would not be appropriate for a forensic scientist employed by or associated with law enforcement to provide the only opinion, particularly where the right to cross-examine is limited. Similarly, forensic science is an enormous field and a particular scientist may only possess the relevant expertise in a discrete area. It is difficult to envisage the court being in a position to identify the area of expertise and the most qualified expert in that area. In relation to (b), in criminal cases expert opinion will usually be obtained early in the investigation of the offence to determine whether or not there is a basis for proceeding. The same is true in relation to many civil cases eg. a plaintiff alleging negligence by their medical practitioner would be poorly advised if they commenced an action without first obtaining an expert medical opinion. In these circumstances, the court-appointed expert would be providing an additional opinion and the defendant or party would continue to employ their own experts to advise them in relation to the court appointed expert's opinion. The cost saving may not be so great as imagined and the system may create duplication. Finally, it is inevitable that there will be opposing expert opinions on some matters. There is no easy solution to this problem. The assessment of expert evidence should proceed on the same basis as the assessment of a lay witness. Judges are in the best position to do so. I see little scope for the application of the Litigation Reform Commission proposal to criminal matters.
6. Should jury trials be replaced by some and what other mode of trial in respect of complex commercial crimes?
The Report of the NSW Law Reform Commission The Jury in a Criminal Trial (1986) found that the jury is the most appropriate means of determining the guilt of people who are accused of committing serious crimes.33 This is not an issue for Commonwealth matters as S80 of the Constitution requires trial by jury for offences against the Commonwealth. Those who favour dispensing with juries argue that juries are ill-equipped to deal with complex commercial matters, they increase the length and cost of trials, make decisions not based on rationality and are susceptible to prejudice. Supporters of the jury system argue that the jury brings a collective broad experience and the conscience of the community to its decisions. The most favoured alternative to the jury system is trial by judge alone. Provisions have been introduced in South Australia, NSW and the ACT to permit an accused person committed for trial on an indictment in the District or Supreme Courts to elect to be tried by judge alone.34 These provisions are not limited to trials involving complex commercial matters. The judiciary has expressed doubt that the proper management of complex commercial cases requires the replacement of the jury because deciding guilt in serious cases requires the application of community standards of what is fair and just.35 There is frequently little dispute in complex commercial crimes as to what occurred and the issue is whether or not the accused was dishonest. This is a judgement that relates to community values and it most appropriately made by a jury. A jury verdict will enjoy community acceptance and not expose individual judges to criticism. Trial by judge alone, if available, should always be at the option of the accused. I endorse the following comments of Justice Badgery-Parker: What we risk losing, by abandoning or reducing the use of juries, is the community advantages which a trial by jury brings - community participation in the administration of the criminal law; and increased community confidence in its outcomes.36
Footnotes 1 Concern about the trend toward importing civil procedure into criminal trials was expressed by Justice F H Vincent The High Court v the Trial Judge 28th Australian Legal Convention, Hobart, September 26 to 30 1993. The Law Society of NSW criticised the recommendation for pre-trial disclosure in the Nader Report as completely misunderstanding the accusatory system upon which the criminal justice system is built in Proposals for Reform of Complex Cases, Law Society Journal , March 1993 67 at page 68. 2 Justice Badgery-Parker The Criminal Process in Transition: Balancing Principle and Pragmatism - Part 1 (1994-5) 4 Jrnl Jud Admin 171 at 172. 3 Justice Badgery-Parker The Criminal Process in Transition: Balancing Principle and Pragmatism - Part 2 (1994-5) 4 Jrnl Jud Admin 193 at 200. 4 op cit n 3 at 202. 5 S611A Criminal Code (WA); 6 S285A Criminal Law Consolidation Act 1935 (SA); 7 The Hon Sir Anthony Mason, AC, KBE, Keynote Address to the Fifth International Criminal Law Congress, Sydney, 26 September 1994, (1995) 19 CLJ 7 at 10 8 There are many instances of where the rule has been abrogated by statute 9 Except alibi which almost universally now is required by statute to be disclosed. 10 I note that in Northern Ireland, England, Wales and Singapore, the right to silence during the investigation phase has been removed in specified circumstances: Criminal Evidence (Northern Ireland) Order, 14 November 1988; sections 34 - 37 Criminal Justice and Public Order Act 1994 (UK); s122(1) Criminal Procedure Code (1980) (Sing). 11 Environment Protection Authority v Caltex (1993) 18 CLR 477 12 Petty v The Queen (1991) 173 CLR 95 13 Weissensteiner v The Queen (1993) 178 CLR 217 14 op cit n 7 at 10 15 I note that the Criminal Procedure and Investigation Bill 1995 (UK) makes general provision for defence pre-trial disclosure - Editorial, (1995) 145 New Law Journal 1769 16 Delaney, G The DPP Perspective on Complex Criminal Trials (1994) 5 Curr Issues in Crim Justice 264 at 268. 17 Nader JA QC Submission to the Honourable Attorney General Concerning Complex Criminal Trials, 1993 at page 31 18 I note Justice Badgery-Parker's positive comments about the implementation of the directions procedures in NSW which do not involve sanctions for failure to co-operate. While admitting that compliance is not universal, he cites several cases where the procedures have significantly shortened trials - op cit n 3 at page 204. 19 Aronson "Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure", Australian Institute of Judicial Administration Incorporated, 1992 page 39. 20 S10 Criminal Justice Act 1987 (UK) 21 op cit n 19 at page 40; Aronson M Professor "Some Comments on the Nader Report on Complex Criminal Trials" (1994) 5 Curr Issues in Crim Justice 274 at 276. 22 Justice Wood "A Time for Change - But How Much?" paper presented to National Crime Authority's "Complex White Collar Crime Conference, June 1992; op cit n 3 at page 205 23 op cit n 3 at page 205 24 op cit n 1 Justice Vincent. 25 op cit n 17 at page 53 26 The Crimes (Criminal Trials) Act 1993 inserted provisions to this effect into S5 of the Sentencing Act 1991. 27 op cit n 16 at page 46; Justice Santow Corporate Crime: Complex Criminal Trials - A Commentary (1994) 5 Current Issues in Crim Justice 280 at 285; op cit n 3 at page 206 28 op cit n 3 at page 206 29 S352(1)(c)(1) Criminal Law Consolidation Act 1935 (SA) 30 This is also supported by the Administrative Review Council and is currently under consideration by the Attorney General's Department. As jurisdiction under s39B Judiciary Act 1903 (Cth) could be invoked to review many of these decisions, I also support the investing of the High Court's original jurisdiction under S75(v) of the Constitution in state courts insofar as it relates to decisions in connection with the investigation or prosecution of persons for offences against a law of the Commonwealth. This would avoid state courts and the Federal Court having concurrent jurisdiction over the same matter. 31 Uren, Sgt K "Diversionary Conferences" (1994) 152 "The Law Society of the Australian Capital Territory" 36; "Diversionary Conferencing and the Reintegrative Shaming Experiment " (1995) 157 "The Law Society of the Australian Capital Territory" 41 32 Justice Davies and Sheldon S A Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale (1993) 3 Jrnl Jud Admin 111 at 121. 33 NSW Law Reform Commission Discussion Paper 12 (1985) par 2.27 34 S7 Juries Act 1927 (SA); S32 Criminal Law Procedure Act 1986 (NSW); S68B Supreme Court Act 1933 (ACT) 35 Justice Heenan Trial by Judge Alone (1994-5) 4 Jrnl Jud Admin 240 at 241.; op cit n 6 at page 199 36 op cit n 3 at page 199