The New Spring Offensive
At the time of writing of this article we are approximately 6 hours away from Victoria easing it’s restrictions due to COVID-19. I thought, now was a good a time as any to take stock and peer into the future. Hopefully, the misery of a third wave is avoided and that we can start to repair the criminal justice system which has been ravaged by COVID-19. As we emerge from our homes and peak into this new “covid normal” world, it is a worthy goal to try and advance our justice system.
Why should we be doing this? Basically, because we have no choice. The criminal justice system was already buckling prior to COVID-19 and now court case delays are likely to be massive. This is at all levels of the system from the Court of Appeal down to your local magistrates’ court. This article will focus on the most populous court, being the magistrates’ court jurisdiction.
The legal profession and justice system as a creature of the common law is inherently one that is conservative and slow moving. However, our collective heads of jurisdiction have been proactive and relatively agile in the face of the massive delays that have been caused by this plague. But the plague has basically caused an Everest of cases that must be scaled. We are still at the base of the mountain. It is a trek likely to take many years before we summit. We need changes and big ones to maintain the integrity of the system.
I know that none of these suggested changes are ever going to eventuate as I am but a very small cog in a very large system, however I have been surprised by who has read this blog in the past so I am putting it out there. My thoughts are based on my practical experience and the daily drifting in and out of most magistrates’ court in my practice. It has been especially informed by my observations of Sunshine Magistrates’ Court, one of the busiest in the State, and my “law home”. I have watched in awe how the court system has adapted due to this challenge, but I know the challenges that are to come.
In 1991 Justice Phillips looked at his jurisdiction, the Supreme Court of Victoria, and saw massive delays within its civil jurisdiction. By 1993, the “spring offensive” was launched. Mediation was born and has since flourished in the civil jurisdiction and within the Supreme Court. Due to COVID-19, the magistrates’ court needs its own “spring offensive” to tackle the biggest challenge to the criminal justice system in a generation.
And so it is in the spirit of Justice Phillips “spring offensive” that I make the following observations that would improve the efficiency of the justice system:
1. Appointment of a list busting task force within the magistrates’ court. A dedicated list, with experienced prosecutors, designed specifically to tackle the backlog of cases. This would be done with having experienced prosecutors take carriage of the matters approach major defence firms and legal aid lawyers to case conference all of their cases face to face until they are done. They can be tackled in blocks. Then appearance before the specialised list to advance the cases in blocks, all at once. This can occur at most metropolitan, if not all, magistrates’ courts.
2. Simplification of the bail laws. I have written extensively about this, but in short the bail laws are inefficient and strict. It creates a backlog in the system. Please just give us one test of unacceptable risk and be done with it, we have been patiently asking for it for years.
3. Removal of “bottleneck laws”. Laws that create a bottleneck in the system are generally laws that require mandatory sentencing or “special reasons” for why imprisonment should not be opposed. Generally, these laws are subject to police practice known as “over charging” but they also reduce negotiations between the prosecution and defence to a zero sum game. These “bottleneck laws” should be wound back.
4. Strengthening of the committal system. The committal system, contrary to the rhetoric out there, is not broken. Instead of being undermined, if the system was strengthened by actually empowering magistrates’ to (1) compel disclosure and (2) dismiss weak cases with greater ease; then you would find committals would do what they are actually designed to do. That is to act as a big “filter” and sort out the “wheat from the chaff”. But the test is too stringent. Many times have I been involved in the case where all parties know that the case is “chaff” but it’s treated like “wheat” and proceeded to the County Court whereby it’s ultimately withdrawn. This often results in “door step” justice, where capitulation only occurs when the parties are on the steps of court. By empowering magistrates’ to make substantive decisions about committals, you would increase the efficiency in the system. If the Crown takes issue with a magistrates’ decision, then they can direct present. In short the test should be changed from whether a jury “could convict” to something along the lines of “whether, on the balance of probabilities, a jury properly instructed would be likely or could convict.”
5. Digitisation of briefs and improved clarity and disclosure regarding body-worn cameras. The law with respect to BWCs is currently a black hole. This is inefficient, unfair and unjust. Within any legislative framework there should be a requirement that BWC footage is mandatorily disclosed as part of the preliminary brief. That means, any lawyer or accused person can easily see the likelihood of their case being successful or unsuccessful. Prosecutors and defence lawyers are unanimous in their love of BWCs, because they clarify the position quickly and clearly. BWCs should be activated when exercising any police power and handed over to defence as part and parcel of the preliminary brief. Failure to do so could risk dismissal of the case and/or costs.
6. A new wave and old wave of magistrates’. Inevitably, due to the backlog that is created (and likely to continue into the future) new magistrates’ will need to be appointed in a “wave” to tackle the spring offensive. Further, magistrates’ who have retired should be approached to see if they can join the spring offensive either in person or via the online magistrates’ court. There is an incredible amount of experience that could be drawn upon in order to advance the efficiency of the system, and I am sure many retired magistrates’ would not mind at all to tackle cases from the comfort of their homes. This feeds directly into point .
7. Expansion of the online magistrates court system for non-remands. The online magistrates’ court is a wonderful system and robust. The magistrates’, staff and clerks should be congratulated in the work that they have done. I think the OMC should stay however I still maintain my view that OMC is disadvantageous for accused persons who are facing a term of imprisonment or currently remanded. Into the future, I think practitioners (as part of the notice that they are acting) should flag whether it is appropriate for the case to appear via OMC. This should be according to whether they are (a) facing a lengthy term of imprisonment or (b) whether accused person has the capacity to appear at the OMC non-custody stream. If a matter is suitable to appear at the OMC non-custody stream, then it should be allowable for an accused not to appear if they have a lawyer present unless and until the matter is due to be finalised. Regardless of whether the accused is on bail or not. Make no mistake this is the vast majority of cases.
One analogy that I heard from a very wise magistrate was that, as lawyers, each of us must think of ourselves (within the magistrates court level) as workers in an emergency department. And that we should triage the clients who are facing custody and those who are not facing custody and clearly communicate that to the court. This is to allow precious prioritisation in terms of time and resources. This approach should be adopted system wide and built within the lists.
If lawyers were trusted by the magistracy to be able to do this very basic task at the start of a case, then it would de-clutter the system and reduce the unnecessary appearances of accused people. It also breaks the cycle of non-appearances or late appearances and the fail to appear and warrant cycle. It would streamline the system.
8. Actual expansion of the capacity of prisoners being able to be brought to court. This is something I feel passionate about. I have written extensively about it. Prisoners should be brought to the court for their case. Why? Because it affects the quality of justice and it means a case can be over and done with in a single day. Compare that to a person appearing via video link. Often you only get 30 mins on the link (regardless of how complex the case is) and even if the case does resolve it is likely to be adjourned one, two or three times more due to CCO assessments, sentencing and the like. This increases judicial stress and impact on the mental health of the bench. I spoke directly at length about this with the late and great Magistrate Stephen Myall who would liken his court to “Bourke Street” it was that busy. It is also highly inefficient. This feeds directly into point .
9. Renewed commitment to the mental health of all people in the criminal justice system. This is something that will be a vital tool against burn out in a system that is going to be pushed to its limit. A dedicated specialist mental health service should be available to anyone who works in the criminal justice system – from clerk to bar table to bench. It should be free and unable to be subpoenaed or disclosed unless in exceptional circumstances. We must listen to and learn from the tragic and traumatic lessons from the last few years.
10. Get rid of fines only or contested fines matters and put them to VCAT or judicial registrars. Self-explanatory.
I know that some of my suggestions are controversial politically, for example the bail laws and the bottleneck laws, but COVID-19 has created the greatest challenge to the criminal justice system in a generation. If we return to “business as usual” the cost to the taxpayer and to the rule of law will be immeasurable.
COVID has created our greatest opportunity to conduct root and branch reforms to deliver smart, efficient justice. Justice delayed is justice denied. If the system is not smart, the COVID backlog will mean justice denied. Strap on your hiking shoes, we’ve got to get to that summit.