Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) 2016 [Legislation Debate]

This speech was delivered on 20.09.2016 in the NSW Upper House. You can read the full debate online here

The New South Wales Government has one hell of a problem and that is that the time to get a criminal trial in the District Court continues to blow out. As a result of that the remand population continues to grow in New South Wales. There are two reasons for this. The first is the chronic underinvestment in our courts and the second is that some very broken bail legislation is pushing the New South Wales population to record highs at a time when we have record low violent crime in this State. So what is the cunning plan that the Baird Government comes up with? It is going to redefine some offences—quite serious property offences—as matters that can be dealt with on a summary basis in the Local Court. For the record, The Greens support the Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016. The object of the bill, in the ever glowing terms of the explanatory note, is:

(a)to provide for certain indictable breaking and entering offences under the Crimes Act 1900 to be dealt with summarily unless the prosecutor or person charged elects otherwise, and—

I love this one—

(b)to make other amendments in the nature of statute law revision.

But the first purpose is the key purpose of the bill. We are talking about quite serious property offences involving breaking and entering into dwelling houses and other buildings and committing serious indictable offences in circumstances of aggravation. Previously all these matters had to be determined in the District Court but now they will become table 1 offences and therefore can be determined summarily in the Local Court. What does that mean? First, it means there is no jury trial. Some people may want a jury trial, in which case they can elect and take it to the District Court. Some prosecutors may want a jury trial, in which case they can elect and take it to the District Court.

Secondly, the maximum term of imprisonment that can be imposed by the Local Court is set at two years, whereas some of these offences have quite substantial maximum penalties if tried in the District Court of five years or more. Thirdly, there will be a speedier turnaround in the Local Court. The current average delay in finalising a criminal trial in the District Court is 11 months. That term “average delay” hides the real delay because that includes matters with an early plea of guilty and a very quick sentencing hearing. In regard to contested matters—and I will be interested if the Parliamentary Secretary has this to hand—the delay for getting a defended matter finalised in the District Court is closer to two years than 11 months.

I am sure that the Parliamentary Secretary with his enormous access to briefing papers and resources will give us the exact time for which contested matters are delayed in the District Court at the moment. Absent his correcting me I suggest that the evidence in the public domain is that it is about two years to get a contested matter or a defended matter determined in the District Court. In the Local Court the average time is closer to four months. Again I am sure the Parliamentary Secretary with that alacrity he has can go and find the exact time for the average contested matter or defended matter to be determined in the Local Court but it is probably closer to nine to 12 months than it is to four months for the average matter. However, there is a substantial reduction in delay. On any view, moving a matter from the District Court to the Local Court will substantially reduce the delay.

Reduced delay is just plain good in finalising criminal matters. It is good for the witnesses because they have a fresher recollection if they are required to give evidence. It is definitely good for the victims of these offences. They like to have a matter finalised. It is often very distressing having property offences committed, particularly as some of these are property offences with aggravation, so having the matter determined quickly is good. Because of the broken bail laws it is also almost universally good for defendants. Rather than languishing on remand for a long time the defendants can have their matters determined. If they are found not guilty they can be released and freed if they are on remand. Otherwise they can have their conviction dealt with and they will face a maximum sentence of two years in the Local Court.

How many cases are we talking about? I said at the outset this is really the Government responding to the lack of investment in the District Court—the failure to appoint sufficient District Court judges to deal with the caseload. The resolution is not to appoint more judges or adopt a different approach to our bail laws or the like, which would systemically fix the matter. The Government’s decision is to bounce matters out of the District Court and into the Local Court. My understanding is that we are talking about a caseload of approximately 540 cases a year of these property offences currently before the District Court.

I was told in a briefing from the Government that approximately 80 per cent of those will find their way into the Local Court. That accords roughly with the sentencing statistics. Roughly 80 per cent of the current 540 matters, when they come for sentencing, are getting sentences of two years or less imprisonment. Assuming that there are good judgment calls by prosecutors in electing to keep matters in the Local Court, instead of being in the District Court roughly 80 per cent of those matters will find themselves in the Local Court. That will mean substantial time savings in the District Court and will free up those enormously overstretched judges to deal with that other increasing backlog of cases in the District Court.

Whilst this may not be the best way of dealing with the backlog, it will go some way towards dealing with it, which is one of the reasons why The Greens support the bill. But the poor old Local Court will be getting of the order of 430 additional matters bounced down to it as a result of this legislation and it will be getting only one additional magistrate. That will put additional stresses and burdens on the Local Court. It is true that some committal hearings will not be run in the Local Court where the defendant seeks to test charges that would otherwise be taken to the District Court on committal, so there will be a small saving of time for the Local Court in a reduction of committal trials as a result of matters no longer proceeding in the District Court. But overwhelmingly we will see a substantial burden placed on our Local Court system as a result of these changes. It is highly unlikely that just one additional magistrate will adequately address the additional workload.

The Hon. Adam Sea rle: It is not unlikely; it is impossible.

Mr DAVID SHOEBRIDGE: I note the interjection of the Leader of the Opposition. It is not unlikely; it is impossible that one additional magistrate will be able to deal with the additional workload. One of the concerns we have with this bill is that in order to go some small way towards remedying the delay in the District Court the Government will be creating delays in the Local Court. What is a relatively timely process in the Local Court could well be cruelled as a result of this movement of caseload from the District Court to the Local Court. It is not a question of magically fixing something or even substantively fixing something with the addition of adequate additional resources. This is really moving a problem from the District Court to the Local Court. I will be interested to hear what the Parliamentary Secretary has to say about the average delay for a contested hearing or a defended hearing in the District Court in the criminal jurisdiction as well as in the Local Court.

The bill has the following benefits to which I referred earlier: a reduction of delay for victims, a reduction of delay for witnesses and a reduction of delay for defendants. It comes with protections so that when a matter goes to the Local Court the maximum sentence that can be imposed is two years. These are important protections. It is by reason of those protections that The Greens support the bill. But I would not want it to be suggested that The Greens do not defend and assert the primacy of a trial by jury in our criminal system in New South Wales. We fundamentally believe that a trial before a jury where the persons charged are brought to trial before a dozen of their peers and their peers pass judgment on the factual elements of a criminal offence is a fundamental part of our criminal justice system. One of the reasons we support this bill is that it retains the right of the defendant to elect to have his or her trial by jury in the District Court. With those observations we note our support for the bill.

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