Summary Procedure (Indictable Offences) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 18 May 2017.)

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

I rise to indicate that the government will be accepting the amendments of the Legislative Council to the bill. This bill represents perhaps the most significant reform to criminal procedure in South Australia since the introduction of the Summary Procedure Act.

This reform has been a very long time coming. It was flagged as a key pillar of the government's Transforming Criminal Justice project, which was announced in December 2014. Since then, significant work has been undertaken in the formulation of the bill that is now before us. Whilst I cannot say that I am 100 per cent satisfied with the final result, 70 per cent is better than zero. We have, no doubt, ended up with a piece of legislation that will significantly change the way that criminal matters move through our criminal justice system.

The decision by the Legislative Council to remove two key elements of this reform, namely, the positive disclosure of any defence upon which the accused seeks to rely and the possibility of adverse comment being made to the jury, is regrettable. These removals preserve the notion, promoted by some in the private legal profession, that a criminal trial is 'not about the truth'. I disagree. The public, if they were asked, would also disagree, and the media, if doing its job, should also.

This is a missed opportunity by my parliamentary colleagues in the Legislative Council to endorse what would have been a very positive reform to criminal procedure, a positive reform that has been undertaken in various forms by New South Wales, Western Australia and Victoria. I do acknowledge at this time that there was significant opposition to these aspects of the bill, particularly from some members of the private legal profession. While I respectfully disagree with them, I do understand these views. Despite the amendments of the Legislative Council, the bill in its final form will greatly improve the criminal justice system.

As I have said repeatedly, the meaningful reform of our criminal justice system requires all the moving parts to work together. This bill represents one piece of the puzzle. There needs to be a cultural shift within the system as a whole, and that goes for all elements of the system—police, Director of Public Prosecutions, defence counsel and judiciary. With that in mind, I am very pleased that the Legal Services Commission is changing its legal aid grants to increase the number of early guilty pleas in criminal matters.

Under a pilot program starting from 1 July this year, defence lawyers will be funded to prepare for and engage in more intensive pre-trial negotiations with prosecutors. An additional fee of $500 will be paid to the defence lawyer when a guilty plea is entered by their client before the case is listed for trial. This front-end loading of work is exactly what the criminal justice system needs to function to its full potential, and I applaud the Legal Services Commission for this initiative. It will result in better outcomes and significant savings in time and resources.

Additionally, as announced in the last state budget, on 1 July this year the Office of the Director of Public Prosecutions will take over country committals, which means that all serious criminal matters in South Australia will be under the control of a single prosecutorial authority in the DPP. Whilst these reforms mentioned may seem minor, they are excellent examples of the cultural shifts that will enhance the criminal justice system.

I anticipate that the deputy leader will stand up shortly and deride my work in progressing the legislation, possibly claim victory in that the Legislative Council amendments are being accepted and quite possibly describe my conduct with the usual grab bag of pejorative superlatives, such as disgraceful, outrageous, disgusting, reprehensible and so on. Of course, this is par for the course here, but, as usual, she will be wrong.

When the bill was originally debated in this place, I remind members that at the very last moment the deputy leader dropped on us amendments that sought to completely blow the bill up. This was her own version of 'late disclosure'. The amendments were moved under the guise of mirroring the Victorian model, but make no mistake that the amendments were designed to make the legislation fail. The deputy leader critiqued the legislation in her second reading, based not even on the bill that was before the house but on the original consultation version of the bill, which by then had changed significantly.

The version of the bill we now have before us is by no means a victory for the opposition—far from it. This is a piece of legislation that will, despite the best endeavours of some, play a significant role in improving the effectiveness and efficiency of our criminal justice system. On that note, I would like to thank the members who contributed to the debate on this bill. Bearing in mind it is not perfect, perfection must never be the enemy of the good. Accordingly, the government will be accepting the amendments.

I also thank all those people who have spent a great deal of time working on this legislation, in many places, and there are too many to name, but in particular Will Evans, on my staff, who has been living and breathing this project for some time. He has done a fantastic job, so I thank him very much. Tania from legislative services has done an extraordinary job, and I thank all the other people within government and externally who have become engaged and worked on this project. I think it is fair to say that, overwhelmingly, the people with whom we have been engaged in this project have brought goodwill to the process and that there has been, overwhelmingly, a bona fide effort to see improvement.

In a combination of this legislation passing and the other initiatives I have just mentioned, and others to come—including, I am very optimistic to say at this point in time, changes by the courts in how they conduct themselves in terms of the way they manage their lists—all will work together to yield a significant improvement.

Ms CHAPMAN: I indicate that the opposition welcomes the amendments introduced in the Legislative Council, some of which have been tried and failed in this chamber previously, but let me say that, in general, the bill was supported by the opposition at all material times.

Three aspects of this bill were offensive to us and totally unacceptable to those in the community in the legal profession, who represent everyone in South Australia who might be caused to come before a court charged with an indictable offence. People do not realise the gravity of this until they or a member of their family are charged and they look to have a judicial system that will ensure that there is no bias in the prosecution, that there is no defect in ensuring that justice will prevail in the application of the court's determination, that they will have a fair trial and that, where possible, the guilty are found guilty and the innocent are protected.

The areas of concern for us related to the opportunity to have pre-trial disclosure. There was some amendment to that and further discussion in the upper house about that. Ultimately, there was a fair compromise to ensure that there would be the right for pre-trial disclosure via the subpoena power, which had been demonstrated on many occasions to be necessary to ensure that there was full disclosure in these very serious cases.

Secondly, if there is going to be adverse comment given to a judge as a result of defence counsel not disclosing or not providing information in a timely manner and in compliance with the rules, they would be the subject of adverse comment. We found this to be of concern given that the government had said that it is necessary to ensure that there is some punishment if people do not do the right thing. That is fine, but it should apply to the prosecution as well if there is going to be disclosure all around. Obviously, we had to raise these points with the government.

Perhaps of most concern was the introduction of a regime of disclosure and early disclosure of the defence's case, rather than concentrating on the disclosure of evidence that needed to be produced for the purposes of fully informed advice being given to an accused by their counsel. There are a number of reasons why serious cases in our criminal court system haemorrhage into dysfunction and delay.

One is that in the District Court there has been a paucity of judges and vacancies not filled. 'No judge available.' We can read it in the annual report every year. A second is that there is no court available. Third, there is late disclosure and late guilty pleas. We find time and time again in these cases that applications are made because there has not been full disclosure—not necessarily deliberate or wilful concealment, but a situation where there has been a failure to disclose.

I have said this in the parliament before: it can be as simple as information being obtained from a witness at police station X when subsequently the case is operated out of police station Y. The material that is accumulated at station Y is made available but later down the track, in the final preparation, they find that there is a witness statement or a piece of evidence that is brought forward from police station X. Of course, unsurprisingly, the people representing the accused say, 'We don't know anything about this. Obviously we need to get instructions and prepare our case to deal with it.' If it is pivotal to a potential plea, then hopefully at that stage, late as it might be, there would be some sensible resolution on that basis.

We have at all times said that we will work with the government to ensure the efficient and timely progressing of fair and just trials in the criminal justice system, and we do not resile from that, but those on the upper house crossbenches obviously took the view that we were right and that there needed to be amendment and that, notwithstanding that the Attorney-General has his new, shiny 'SC' after his name, he is clearly not as smart as those who actually operate in this field as criminal counsel.

With that in mind, I thank those who have put representations to us powerfully and persistently to ensure that this parliament does not throw out time-honoured protections to ensure fair and just trials in its haste to try to convince the public of South Australia that these reforms will actually produce some major change and efficiency. The government needs to do a lot more if it wants to make the criminal justice system more efficient.

In particular, I acknowledge the contribution of Mr Tony Rossi and the Law Society; Mr Ian Robertson SC, representing the President of the South Australian Bar Association; Mr Bill Boucaut SC—I cannot think of anyone in the current bar who has had more experience, other than perhaps Michael Abbott QC—and Mr David Edwardson QC, a leading counsel at the criminal bar. These people understand what happens out there in the real world, and I thank them sincerely for, where necessary, even publicly making comment to alert South Australians to the ill that was about to befall them if the government got its way.

One of the things the government has done—which appears to have been very effective already, and we supported them on it—was to introduce a system several years ago of amending the law to give higher discounts on sentencing for early pleas. It is a reward system and we supported them in it. With that amendment came the supergrass law, where some extra penalty can be taken off if you squeal on someone else.

If you have an existing sentence, for the same reasons you have an opportunity to get that discount. It was a good idea and we supported it. It was reviewed, and the reviewer said, 'It's a bit too early to say whether it's actually been effective or not, but there's good early signs.' We said to the government, 'Give this a bit longer as a go and have it looked at again.' But, oh no, they had to say that this was to be the panacea of reform.

Secondly, on the retirement of the chief judge of the District Court, the government appointed Michael Evans QC. In his time, before one dot of this reform had taken place or had been implemented, in the six or eight weeks that he has now been the Chief Judge, to my knowledge it appears that only one case has needed to be adjourned. That tells us something perhaps about his administration. It may be that it happened that there were other judges on deck or it may be the nature of the cases, but at this stage his administration is showing very great, significant signs of success in this area. Whatever he is doing, he needs to do more of it, and we are very pleased to see it.

Thirdly, the government announced today that it will increase the fee available to representatives of legal aid clients by $500, which is to top end the representation fee. I suppose this works on a bonus system. You are saying to counsel, 'Look, if you can get the client to plead guilty early, then you'll get extra money at this point and you don't need to go on and get a paucity of money to continue in the trial,' so there is some incentive to solicitors and/or counsel to get the guilty plea early because they will get not much after that.

I understand how that works. I would say that it is about time the fee level for counsel in this area is increased anyway, not just as an extra bonus but because it has taken so long to do it. I say to the government that, if they expect the Legal Services Commission to pick up the fee for this without some funding in this year's state budget, they need to think again because, clearly, there will need to be more funding for that and I expect that that needs to come with it.

While they are at it, the Attorney-General might go into cabinet and reverse the $6 million cut his government gave to the Legal Services Commission over four years in previous budgets. Do not come here on 22 June and have the Treasurer stand up in a grandiose way to tell us what a good bloke he is by allowing some extra money to go to the Legal Services Commission. If it is not above $6 million and above the cost of this initiative, then there will still be scum in the financial position that they will be put in. I say, with early caution, that I think this is a welcome initiative, but it needs to be funded and it ought not be required to be taken out of existing budgets.

As the Attorney reminded us, the DPP will take over country committals. This was an initiative announced last year. We are yet to see whether that works. It may work, and obviously I hope it does. There was some money (I think $1 million) allocated over a few years to accommodate the cost of that and video link-ups for country committals. We are yet to see whether that will work. There are things that can be done to improve the efficient progression of cases through our court system. When they are good, we will continue to support them. When they are designed to cut out the rightful entitlements of an accused in a trial process, particularly when their liberty (up to life imprisonment) is at risk and compromised, we will continue to oppose them.

I will conclude by saying that one of the biggest sticking points in relation to the accommodation of a model of disclosure, which the government has now accepted in the period leading up to a trial listing, has been the resources of the DPP. The government continuously rejects sufficiently funding the DPP to ensure senior prosecutors are employed, which in turn ensures that there is early management and the capacity to enter into serious negotiations with cases. This must occur, and it can only occur if people are employed at a senior level.

I understand, from information provided in the course of this debate, that there is some extra money for the DPP, but it is to appoint people other than senior prosecutors. These other people may be important and they may fill important gaps. There are plenty of them, as we know, because we had a major review of the DPP office provided to us and, clearly, they are struggling. The impediment to properly ensuring the new model that is now in this bill will work requires the government to ensure that there are senior people in those positions to make those decisions early on. You simply cannot have a fairly junior prosecutor in a position to negotiate the important aspects of both plea bargaining and discussions about the merits of the evidence and cases to be put for the purpose of reaching a sensible compromise.

As I say, where the government have important initiatives that are workable or useful, we will support them. In this case, they had a good start but there were some serious defects. I welcome the Attorney-General's final but nevertheless conclusive acceptance of those amendments, and I thank the upper house for their contributions.

Motion carried.