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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-05-09 Daily Xml
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Summary Procedure (Indictable Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 April 2017.)

The Hon. K.L. VINCENT (16:45): I speak on behalf of the Dignity Party today on the second reading of the Summary Procedure (Indictable Offences) Amendment Bill 2016, cognisant that a considerable number of submissions and comments have been made to my office around this bill and proposed reform and that a number of amendments to the bill have already been filed.

We are still considering the points that have been made on both sides of the debate, so to speak—if I can call them sides—but we will support the second reading of the bill at this stage to allow the debate to continue. I do feel there is some probability that we will be seeking to either file our own amendments further into this debate or support those of others.

I would like to thank the Attorney-General for making former Justice Michael David QC available to MPs and to staff to brief us on this bill and also for his personal briefing to myself on this bill and the reforms more broadly. We also appreciate the time taken by the Director of Public Prosecutions, Adam Kimber SC, to meet with us on these reforms. I also appreciate the time taken by a number of defence lawyers, including the President of the Bar Association, Ian Robertson QC, and many others for their views and concerns, which they have expressed to me.

In addition I have also met on this bill with Michael O'Connell in his role as Commissioner for Victims' Rights, enabling a victims' rights perspective. Regardless of the various perspectives and viewpoints that have been put to me, one thing seems clear: everyone appreciates that reforms need to occur but the precise form and priority of these reforms are what are disputed.

Many on the defence side of this debate believe that these legislative reforms alone will not be effective until the lack of resourcing for the Office of Public Prosecutions and the Legal Services Commission is dealt with. Certainly, as a person with disability, I see the need for a functioning justice system. Women with disability in particular are far more likely to face abuse in their lifetime than almost any other group, and as an MP who has many constituents with a disability, including children, particularly children with intellectual disabilities and/or complex communication needs, I have seen the justice system completely and utterly fail them.

I am also acutely aware that a better functioning and more efficient justice system could be of benefit to people with disabilities, whether we be appearing in the system as victims, offenders or witnesses. However, I also believe that the efficiency of our justice system must never come at the expense of fairness, and what many would view as an inalienable right—

The PRESIDENT: Can honourable members please pay respect to the Hon. Ms Vincent, who is giving a speech.

The Hon. K.L. VINCENT: Thank you, sir, I will start that sentence again. However, I also believe that the efficiency of our justice system must never come at the expense of fairness and what many would view as an inalienable right to access our justice system, such as the right to silence. There are number of defence lawyers who are significantly concerned that the state's under-resourcing of the DPP and lack of legal aid funding adds at least as many problems to the metaphorical list as does the defence lawyers being unprepared. But I am aware that the Attorney-General and many others on the prosecution side of the argument would argue that this does not preclude or reduce the value of legislative reform in this instance.

Indeed, it has been put to me that discussing the under-resourcing of SAPOL and the DPP is a distraction tactic being used by the opponents of this reform. It has been put to me that all the defence needs to do, if they are concerned about a lack of preparation, is put it to the prosecution to prove every aspect of the case, to insist that every aspect of the chain of evidence be addressed at trial.

However, I guess my question to the Attorney-General on that is: would that result in longer trials? I would also like to know why the additional resources for early case statements necessary under this reform amount to approximately $400,000, in my understanding, which seems a measly sum compared to the millions that get splashed around by this state government in other areas of grand and sometimes even unnecessary infrastructure projects.

I do very much worry about the lack of resources available in our South Australian justice system and the consequences of this. It is difficult to put a dollar value on justice being done, whether you are a victim, an offender, a witness or in the family of a victim, offender or witness. As I understand it, criminal justice offences cost an average of only $10,500 per offence in South Australia, while it costs about $25,000 in Victoria. I would hope that this does not necessarily mean that justice is done two a half times as well in Victoria as here in South Australia. The Victorian criminal justice system costs about two and a half times as much but is it twice as good? Certainly in deputations to my office by South Australians involved in our justice system it is said that the Victorian system is enviable.

I am certainly aware that some on the justice side of the criminal justice system here in Adelaide, and South Australia more broadly, believe that we would be doing much better if we adopted something much more similar to the Victorian system, not just in a legislative sense but in terms of resourcing. I do take the point being made by those for these reforms that simply injecting more funding into our system is not in and of itself the silver bullet some might portray it to be.

I have seen both systemic and individual funding issues in Disability Services which have had money thrown at them, to use a crude term, with little to no success. However, like the Disability Services system that was labelled as chronically underfunded, unfair, fragmented and inefficient by the Productivity Commission, I wonder sometimes if that is not also a feature of South Australia's justice system. You see, it seems we cannot afford accessible courtrooms, and accessing legal aid through the Legal Services Commission is not as easy as it might first appear, particularly if you have additional access requirements such as a sign language interpreter or other communication facilitation for that contact.

My office is regularly involved with constituents who may be victims, witnesses or alleged offenders who are struggling to access the justice system in a fair and particularly a timely fashion. We often hear stories of inconsistent and unclear approaches from all sides, including SAPOL, the DPP, the courts, magistrates, judges and so on. I am not suggesting that anyone is deliberately trying to pervert the course of justice, of course, and I would never suggest that in this case, but often staff in these systems, processes and departments are just not trained or aware in terms of understanding the needs of someone who is, for example, deaf or who might have an intellectual disability, brain injury, or needs to use alternative and augmentative communication methods.

The lack of resources available to provide this training compounds and impairs the justice system's ability to deliver justice in the end. While we are happy to support the second reading of this bill at this stage to continue the debate, the Dignity Party wants to place on the record those very genuine and strongly held concerns and would appreciate any further feedback the government can provide on whether it views addressing this issue in a legislative fashion is in and of itself enough or whether it agrees that the resourcing also needs to be looked at.

With those few brief words we hold the right to present further amendments further down the track but for now I am happy to place those general concerns on the record and would like the government to respond to them.

The Hon. M.C. PARNELL (16:54): 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.

The Hon. T.T. NGO (17:06): I rise to speak in favour of the Summary Procedure (Indictable Offences) Amendment Bill. The government flagged its intention to reform criminal procedure in its first paper under the Transforming Criminal Justice banner in December 2014, when it released a strategic overview of the reform project. This was followed up by a consultation paper entitled 'Efficient progression and resolution of major indictable matters' that was released in mid-2015. Feedback on this discussion paper was taken into consideration in the drafting of the original version of the bill.

The draft version of the bill was then released publicly late last year, so that key interest groups would be able to comment and provide feedback on the draft legislation before it was introduced to parliament. The bill before us now is the culmination of an extensive consultation process, having taken into account the various pieces of feedback received on the draft bill that was released for comment last year. There are various key aspects to this reform.

Firstly, the Director of Public Prosecutions will now be required to adjudicate the particular charge that an accused will face, based on evidence provided to them by SA Police. This means that when a charge is laid for an indictable matter, prosecution and defence can have confidence that the matter will proceed as charged. Charges being upgraded or downgraded creates inefficiencies within the system and is often stressful for the victims and the accused.

The courts have been given the discretion to set appropriate time frames between appearances in the Magistrates Court depending on individual cases, meaning that the number of unnecessary adjournments will reduce. This will occur on a case-by-case basis, based on the information provided by the parties during preliminary hearings. For example, if the prosecution knows that some forensic material might take many months to be ready, the courts can adjourn the matter accordingly. This saves the need for appearances where both parties simply attend court seeking an adjournment to await such evidence.

The bill adjusts the current sentencing discount regime to fit in with the new time frames proposed. This discount regime has proved successful in encouraging early guilty pleas where appropriate, and the government is keen to preserve this important reform. Importantly, the bill introduces a tiered disclosure scheme, which applies to both prosecution and defence. This will work with the provision of case statements between the parties, meaning that parties will be better informed at an earlier stage in proceedings about how a case will proceed.

This legislation will lead to major criminal matters travelling more efficiently through the court process and will lead to a front-loading of the work that now usually occurs just before a trial date. The front-loading of work is a good thing. The criminal justice system has many moving parts—the courts, police, lawyers, prosecutors, witnesses, victims and many more. The earlier we can get the key people in this system to focus their minds on a matter the better. I commend the bill to the council.

The Hon. J.A. DARLEY (17:11): I rise to provide my contribution to the bill. I understand that the impetus for the bill was to increase the efficiency of the courts, as there has historically been an incredible delay and backlog for cases to be heard. The Attorney indicated that 22 per cent of outstanding matters in the South Australian District Court have been pending for over 12 months and that there is a chronic issue with overlisting in the criminal courts.

The government has proposed a number of changes to improve the criminal process. Both parties will now be required to provide a case statement, in the hope that early disclosure of the information will result in negotiations which in turn will reduce the time the matter is in court. The bill also provides clarity on matters that the court should take into consideration when offering a sentence reduction. The bill was first raised at a briefing the Attorney offered to all members which involved former judge Michael David QC.

At this briefing, I indicated that, as a non-lawyer, the proposal seemed to reflect common sense and I was generally supportive of it. However, it has become clear that, in order for the government's proposal to be effective, more training and education needs to be provided to SAPOL, so that the information they gather during investigations is sufficient to secure a prosecution. The DPP is only as effective as the information they are provided with by SAPOL and if this is inadequate, the desired overall outcome will not be achieved. I have been advised that SAPOL will receive more training, and only time will tell whether or not this is enough.

Further, I am not entirely convinced that the changes proposed by the government will achieve what is being espoused. It seems that instead of the backlog being at the end of the criminal process, it will merely be at the beginning of the process. A real cynic may even suggest that this is merely an exercise to improve the statistics of the courts by delaying matters being listed. If matters are not listed, then the clock cannot start ticking and matters cannot be categorised as outstanding. However, this is a very cynical view.

I was pleased to see an article in The Advertiser recently that indicated that the new District Court Chief Judge, the Hon. Michael Evans, has implemented a number of administrative changes which have improved the productivity of the courts in the short time he has been in the position. I understand that in February, all but six trials started on time and in March this figure was reduced to just two. His approach has been described as a breath of fresh air, and it will be interesting to see whether these changes will be necessary at all in a few months.

However, I accept that there are benefits to all parties involved in criminal matters, including the victim, from early disclosure of the information. It may mean that matters are resolved earlier, which means that victims and their families can start moving on. The criminal process is often very taxing on a victim who is often unfamiliar with the procedures. They can often feel that they are excluded from the process, as it is a matter of the state versus the accused, yet the outcome of the process has a direct impact on the victim. Whether an accused is guilty or is found guilty can go a long way to vindicating what has happened to the victim. If delays are minimised this can only be a good thing.

I have always been passionate about victims' rights, and today have instructed that amendments be filed in my name which will require the courts to be advised whether victims have been consulted or not if the prosecution changes the charge or decides not to proceed. I will speak more on this during the committee stage. I think it is worth noting, on the record, that the SA Bar Association has concerns about the bill; however, I understand they have now ultimately accepted the bill, provided the Liberal amendments are incorporated, and hope a compromise position can be reached so that this bill can proceed. With that I support the second reading of the bill.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:15): I would like to thank those speakers who have been able to make a contribution at this point.

Bill read a second time.

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