[1989] Reform 94 Court Delays

[1989] Reform 94 bunals. After this became public the Bar It was reported in the Sydney Morn Association of NSW, which had previously ing Herald on 10 February 1989 that one decided not to take any action over Justice of the New South Wales Supreme Court’s Staples, reversed its previous position and most experienced criminal law judges had expressed concern for Justice Staples and resigned in protest over what he described for the independence of judicial officers. as the ‘scandalous’ and ‘obscene’ delays in criminal trials. Mr Justice Adrian Roden, conclusion. While only Common who presided over the Milperra massacre wealth judges enjoy constitutional protec trial and the trial of former government tion, the Staples case raises the question minister Rex Jackson, told the New South of whether other officials, especially those Wales Attorney-General, Mr John Dowd, who exercise quasi-judicial powers of de in his letter of resignation, that the crim cision, may require similar guarantees of inal law should be stripped of much of its independence. Parliament has the power technicality and legalism. He went on to to abolish the Conciliation and Arbitra criticise the work practices of lawyers in tion Commission and similar bodies, and criminal trials which added to the delays. by that means remove all members from He wrote T know you appreciate that our office. If it does so, it must accept the po criminal trial backlog and the resultant litical consequences. When it enacted the delays do not just represent a management Industrial Relations Act 1988, it did not problem — they represent a human prob decide that Justice Staples or any other lem.’ (The Australian 10 February 1989) member should leave office. Parliament provided for a successor body, which was According to the Sydney Morning Her to continue the functions of the old Com ald, Mr Justice Roden is known to support mission. It allowed for continuity of mem a system of pre-trial procedures which bership, but left the appointment of the would speed up cases while protecting in members of the new body to the discre dividual rights. He has also advocated the tion of the executive government. The de separate administration of the Supreme cision as to which of the members of the Court’s criminal division in the same man old body should be appointed to the new ner as the Court’s commercial division. was an executive decision. The question remains whether such a decision should be The delays about which he was com subject to restraint or to review because it plaining sometimes resulted in accused may conflict with an established conven persons being held in custody before trial tion, or other constitutional principles not for a year or more, during which time they expressly written into the constitution. were all presumed to be innocent and may eventually be acquitted. Mr Justice Ro den said that the extent of the delay was * * * unknown in other Australian States and in the United States and United Kingdom. He attacked the court’s summer vacation court delays between mid-December and the end of January each year, during which time five or six Supreme Court rooms remained un Battledore and shuttlecock’s a wery good used, as contributing to the delay. A fur game vhen you an’t the shuttlecock and ther cause, he said, was the priority which two lawyers the battledores, in which case the Supreme Court seemed to place on the it gets too excitin to be pleasant. resolution of commercial cases, at the ex Charles Dickens, Pickwick Papers pense of criminal trials, which, he thought, [1989] Reform 95 was indicative of a society which placed South Wales government is considering in more emphasis on money and property troducing majority jury verdicts for cer than the liberty of the individual. tain kinds of offences, including theft and crimes of violence. According to the Can chief justice of the high court. Mr Jus berra Times of 6 February 1989, the New tice Roden’s comments were echoed on 19 South Wales Attorney-General, Mr John March 1989 by the Chief Justice of the Dowd, stated that he would ask the New High Court of Australia, Sir Anthony Ma South Wales Law Reform Commission to son, in a speech to the Society for the examine the possibility of majority ver Reform of the Criminal Law . Sir An dicts in criminal trials. Mr Dowd said that thony said that the delays currently oc his proposal would decrease the number of curring in New South Wales could not be trials aborted because of one or two obsti tolerated by any society which took pride nant jurors who refused to make a decision in its sense of justice. According to Sir on the merits of the case. He said that Anthony, the average time spent in cus the composition of juries had changed in tody by accused persons between commit recent years and because they were more tal and trial was 10 months in District representative of society, they were more Court matters and 9 months in Supreme unpredictable. They also had no idea of Court matters. He said that such de procedures necessary for the conduct of lays bred injustice, inefficiency and waste meetings. This was because they had less ful expense.They also reflected ‘a break experience of life and had less contact with down in executive planning and the fund the police, crimes and the courts. Mr ing of law enforcement agencies and the Dowd thought, however, that the jury sys court system’. Unfortunately, said Sir An tem generally worked well and was an es thony, the need to eliminate delays some sential part of the community’s idea of jus times created pressure to alter or qualify tice. traditional rules and procedures designed to protect the the defendant, for no good The move toward a system of major reason other than the desire to facilitate ity verdicts, although operating in Britain the prosecution case. and the United States, as well as in West Sir Anthony laid the blame for the sub ern Australia, South Australia and Victo stantial increase in cases coming before ria, has not been greeted with universal the court on increases in population, and approval in New South Wales. In 1986 a an upsurge in violent crime, in a society New South Wales Law Reform Commis where the detection and investigation of sion report recommended the retention of criminal activity was more onerous and unanimous verdicts. Mr Paul Byrne, who more costly than ever. Legal aid enabled was in charge of compiling that report, the accused to contest all aspects of the said that majority verdicts diminished the prosecution case, which contributed to the burden of proof on the prosecution. The increasing length of criminal trials. This Daily Mirror reported on 7 February 1989 was another cause of delay, together with that Mr Tim Robertson, QC, Secretary of the increasing complexity of many corpo the New South Wales Council of Civil Lib rate and commercial crimes. erties criticised majority verdicts as being prejudicial to minority groups in a com jury reform. In an attempt to resolve munity. The real problem with jury tri some of the delays and other difficulties als, said Mr Robertson, was explaining associated with criminal trials, the New the facts to juries in simple non-technical [1989] Reform 96 terms which ordinary people could under a major survey of jurors, Meredith Wilkie, stand. Majority verdicts, he said, were a senior legal officer at the New South Wales form of ‘cheap and nasty justice.’ Law Reform Commission, concluded that if trial by jury was intended to be judg The Canberra Times of 6 February ment by one’s peers, under-representation 1989 quoted the President of the New of particular groups was a cause for con South Wales Bar Association, Mr Ken cern. Thus, while half the people con Handley, QC, as saying that although the victed of crimes are unemployed, unem Association favoured unanimous verdicts, ployed people accounted for only 3% of it would be interested in studying the Law jurors. The proportion of Aborigines, Reform Commission findings and assess women, and persons of specific age groups ing them on their merits. According to the serving on juries is often unrelated to the same report, the immediate past President proportion of those persons in the general of the Law Society of New South Wales, community. This could have significant ef Mr Bill Windeyer, took the same view. A fect on the verdict reached. spokesman for the NSW Law Society,Mr Daniel Brezniak, was also quoted in that These defects have not been lost on report as saying that the society would the public, according to an opinion poll approach with ‘grave reluctance’ any sug quoted in the Sun Herald article. In the gestion that jury verdicts should not be atmosphere of public awareness of the con unanimous. fusion and emotion in the jury rooms at the Lindy Chamberlain, Norm Gallagher, Delay is only one of the defects of the and Lionel Murphy trials, the poll re jury system which has been under scrutiny vealed that 40% of Australians had doubts recently. A newspaper inquiry (Sun Her about the jury system. ald 5 February 1989 ) revealed a number of serious defects inherent in the jury sys tem itself. Interviews with a number of * * * jurors indicated that: • they often did not understand com daikon shield: a h robins pays up plex evidence, particularly in finan cial matters Technology made large populations possi © decisions were often hurried so that ble; large populations now make technol the jurors could go home ogy indispensable.

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