New court 'efficiency measures' undermine judicial impartiality

A new bill intended to streamline court processes threatens to raise the likelihood of innocent people being convicted.

The criminal trial process is something most people never have the misfortune to come near. For most it operates in the background, or through a newspaper or news report, performing an important function in our community but rarely touching us.

This changes when it becomes a son, daughter, brother, sister, friend or workmate who is pulled into the criminal system by virtue of an allegation being made against them. Until then, we harbour a vague expectation that we have a system that will acquit the innocent. it becomes personal, the idea that the innocent will be acquitted becomes a necessity rather than just a vague hope. At that point it seems only right that all measures will be taken by the system to make sure that he or she is dealt with fairly and acquitted. 

That is not, however, how it is and there is strong reason to think that it is about to get worse.

It is a difficult thing to get to just outcomes, requiring immense effort and good systems. The process is reliant on both the efforts of those involved, and in adopting a structure and processes that increase the chances of getting to fair. Even if these conditions are met, there is no guarantee the innocent will be acquitted. Inadequacies in the structures and processes that surround a trial greatly prejudice the ability of those labouring in the system to get to fair.

The Courts Legislation Amendment Bill 2015 sits in the assembly awaiting debate. It is described in the explanatory statement as making "practical improvements" and introducing "efficiencies". It is introduced against a background of significant court delays and inadequate judicial resources to allow the prompt resolution of cases.

However, it goes almsot without saying, making court processes more "efficient" at the cost of making them less fair gains no true improvement and no real efficiency. The key role of courts is to administer justice. Instituting processes that undermine fairness and the ability to reach a just outcome, albeit more quickly, strike at the heart of the nature of the justice system.


The latest efficiency measures come against a background of a slow but inexorable undermining of the ability of an innocent person to defend him or herself. During the past 15 years, significant changes have been made to the hearing of criminal cases that impact upon the ability of a person to defend against an allegation.Generally at each change the government of the day has asserted the need to weigh the interests of the individual against the general community interest. Two difficulties flow from such an equation. First, it is in the community's interest that individuals are treated fairly. Second, if at each stage the judgment is made against the interests of the individual, soon enough the scales exhibit a significant imbalance against the individual.

By way of example, the committal process was until recent times an integral part of the trial process. A person was given statements by the prosecution witnesses, as prepared by the police, and then the prosecution and the defence were given the opportunity to test a witness's evidence in advance of a trial, by having their lawyer question the witness in front of a magistrate under oath. This allowed a person to understand what a witness really had to say about a matter, and what the evidence might really be in advance of the case being presented to a jury. The alternative was to simply hope that the witness statements prepared by the police fairly and accurately identified the flaws in the witness's testimony.

Now, while still served with a police-prepared statement, there is little to no practical ability to test the witness before first having to do it before a jury. The prosecution, with witness assistants at their disposal, has the ability to proof the witnesses when and how they please, in order for the prosecution to understand the strengths and weaknesses of the witness's evidence. Witness addresses and contact details are routinely blacked out from the statements that are given to the defence, leaving the defence with little to no means to do what the prosecution can do. The balance here was struck in making the proceedings more efficient.

A second example is that while an accused person, innocent or otherwise, is required to be present in court, to present himself or herself before the jury and, if giving evidence do so directly before the jury, in a large number of cases the accuser is not required to be present in court. Instead, the accuser may give evidence via remote closed-circuit television, being questioned through a television screen. The balance here was struck, in particular, in supporting vulnerable witnesses, especially in sexual assault cases. However, it means that in all such cases the accused is already treated as though a violent criminal even before the case is heard.

A third example can be seen in the deplorable state of legal aid funding. An accused person has to rely on what limited resources he or she can gather to protest innocence, or, in a limited set of circumstances may might be able to obtain legal aid funding. This legal aid funding relies heavily upon the goodwill of the profession as it falls far below the commercial rate lawyers would otherwise charge. There is no mechanism for reimbursement of an accused who is acquitted at a criminal trial. The balance here is that other public interests are perceived as of greater importance than assisting people to get to fair outcomes in the judicial process.

What is now proposed slides the balance further against an accused person, including an innocent but accused person. The bill proposes that an accused provide assistance to the prosecution by serving, in advance of the trial, any expert material the accused may seek to rely upon in the trial, and by identifying in advance of the trial any criticisms the accused mayhave of the prosecution's expert material.  Although the same obligations will be placed upon the prosecution, the provisions demand that an accused:

1. Assist the very people who are accusing him or her of a crime to prove that crime;

2. Assist them using the very limited resources that the accused can apply;

3. Assist them in circumstances designed to allow the prosecution to improve its case;

4. Assist them in circumstances that provide a fertile ground for police-employed experts to adjust the evidence to deal with the potential criticisms.

The High Court, in R v Carroll, has commented upon the imbalance in the criminal justice system that favours the prosecution: "A criminal trial is an accusatorial process in which the power of the state is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the state as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious."

Although prosecution resources are not limitless, the prosecution can call upon a bank of professional lawyers and assistants and can access the investigative resources of the Australian Federal Police. Unlike an accused, the prosecution has ready access to the AFP's forensic laboratories and experts.

The proposed changes fail to recognise what the High Court has most clearly seen, the fact of the imbalance against the accused. The bill weights the balance against the accused yet again. An innocent person faces an increasingly harder task in properly testing and countering the case brought against him or her. The scales are being pressed down in opposition to the accused.

It is not enough to think of the system as though it only deals with strangers. It deals with someone's brother or daughter or friend. It could be your innocent son or sister or workmate. When that perspective is applied to the system, it becomes intolerable to consider that innocent people are being hampered on a systemic basis and that what is proposed by the government undermines their position even further. It is not enough for government to say that it is carefully considering the individual and the community interest and weighing them against each other to strike a balance. The community is never served well by innocent people being found guilty.

Shane Gill is president of the ACT Bar Association.