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Magistrates Court (Criminal And General Division) Bill 2019

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 10 September 2019

Tags: Legislation

Dr WOODRUFF (Franklin) - Madam Speaker, the Tasmanian Greens support this bill. We wholeheartedly support the changes that will bring our Magistrates Court from a very dusty and outdated form of legislation into the 21st century. We understand and would hope this will lead to far quicker, more efficient, more just, more compassionate and timely hearings of cases in the Magistrates Courts. We hope it will lead to a reduction in costs to defendants and to the state in the running of the Magistrates Courts, and better outcomes for victims who, more than any, need to have the shortest time for cases to be heard so that there is closure for what is often as very painful process for people.

The Magistrates Court is the busiest in Tasmania and more than 27 000 cases came before the Magistrates Court last year. The court is divided into a number of divisions including the Children's Court, the Administrative Appeals Court, the coronial court, the youth justice division and the criminal and general division. This latter deals with the vast majority of the cases that come before the magistrate.

The minister said in her second reading speech that this is the culmination of over 18 years of work, although I note that the vast bulk of that work had been done in recent history. I acknowledge and thank the successive magistrates who have sat on the Magistrates Court steering committee driving this reform, and the other members of that committee who included the Director of Public Prosecutions, the Registrar of the Supreme Court, the secretaries of the relevant departments, the Department of Justice and Department of Police, Fire and Emergency Management.

Notably absent from the process until recently, however, have been representatives of the legal fraternity, in particular defence lawyers, who will be disproportionately affected by the changes that this legislation would bring into force. The flaw in that part of the process was reflected most strongly in comments about the consultation that were directed the minister, through her Department of Justice staff, by the Tasmanian Law Society, who expressed their considerable disappointment and frustration at the lack of consultation. In their report of 20 May 2019 they said:

It is beyond words for the Society to describe its frustrations and disappointment of how such a fundamental act can be developed with such little consultation with the Society, or the profession at large, with such a narrow opportunity to review after 10 years in development.

They were only provided with a version in 2017 for comment but did not get any opportunity for further participation until the eleventh hour, despite what they say were 'repeated requests and efforts to secure the opportunity to do so'. From what I understand from personal conversations I have had with the chair and executive officer of the Law Society, this is a situation which has fundamentally been fixed. They were subsequently invited to participate in a working group and have spent a lot of time working closely with Department of Justice staff and others on the working group to come up with mutually agreeable solutions and amendments to the legislation.

It is important to note that, yet again, this Government does not cover itself in glory by consulting early with stakeholders, and this is one of most examples of changes to legislation that come to this place where there would be an improved outcome by earlier consultation. I will come to some other comments the Law Society made later in my contribution around that matter. I am pleased to hear from the Law Society that after being brought into the tent, the amendments they proposed to this bill were adopted in part or in full. I also understand from the briefing I had with the department on this and the subsequent bills that they will continue to collaborate with the Law Society in formal working groups to address the outstanding issues, some through additional regulation and also through the implementation stages of the bill.

I take this opportunity to thank the minister's staff for the briefings I was provided on this bill. They were very comprehensive and all the questions I and my staff asked were answered with follow-up information. I appreciate that. It helped us to prepare our position on this bill, so thank you.

The improvements this legislation will bring in have been identified by stakeholders for a long time. The Justices Act 1959, which currently governs the matters before the Criminal and General Division which is also known as the Court of Petty Sessions, is in everyone's view outdated legislation that does not enable efficient processes in the court. This bill will improve that status quo by establishing the Criminal and General Division and its jurisdiction and composition and establish a provision to allow for a party or witness to attend proceedings via an audio or video link, as well as establish a statutory basis to formalise case management hearings for the Criminal and General Division. This is an important opportunity to finalise charges without needing to go to hearing.

We undertook our own consultation process with major stakeholders, including the Law Society, the Australian Lawyers Alliance of Tasmania, the Tasmanian Law Reform Institute and individual lawyers who we reached out to.

As I mentioned, the major body of proposed amendments to this bill were from the Tasmanian Law Society and, in general, these have been adopted. However, the major issue which was and remains a sticking point, related to disclosure through the preliminary briefing stage prior to that made available to a defendant or their legal representative, prior to them entering a plea.

It is important to put some context around the disclosure framework that is in the bill before us. The bill improves the disclosure framework significantly from what currently exists. Disclosure information is provided at least 21 days before the court date and a fee will not be charged. This is a very important introduction. We fully support that step in the right direction. The process was previously governed by police internal policy and was not legislated. Nonetheless, it falls far short from what some people feel would be an optimum process to ensure full opportunity to natural justice for people who are making a plea in court.

That is the most serious concern that the Australian Lawyers Alliance have with the disclosure sections of this bill. I am talking here in division 2, the Pre-Hearing Disclosure of the Prosecution case, particularly clause 62, the contents of the preliminary brief. Their serious and abiding concern is that a person should be able to fully understand the evidence against them, prior to them entering into a plea. Their argument for that is that it is fitting with the principles of natural justice and in order for a person to be able to understand the evidence against them they need to be able to see the quality, quantity and substance of the type of evidence.

They have made the argument that this is not only good for the principles of natural justice because a person ought to be able to know the evidence against them before they enter into a plea, but it will also be good for victims as well. The case was made to us that if a person understands that overwhelming evidence is available to convict them then they would more likely than not proceed to a guilty plea in the first instance.

This would expedite the process of moving directly into the stage of judgment and sentencing without having to go through the trial where a victim would be required to provide their testimony, go through their experience and essentially make themselves vulnerable and exposed in a court situation where they otherwise need not have to do that.

There is certainly a very persuasive argument in situations like that. It would consequentially reduce the cost to the court system, reduce the cost to the defendant to all parties not having to appear in court multiple times, not having to pay legal representatives. It would speed through the process of other trials because the courts would not be held up.

There are very strong arguments for increasing the amount of information available at disclosure. I look at what the contents of the preliminary brief are: clause 62 in the bill says that a preliminary brief is to include:

(a) a copy of the relevant charge sheet; and

(b) a summary of the material facts; and

(c) if the prosecutor is a police officer, the Director of Public Prosecutions or the Commonwealth Director of Public Prosecutions, a copy of the criminal record of the defendant or a statement that the defendant has no previous convictions; and

(d) a copy of the record of interview; and

(e) a statement specifying that, if an audio-visual recording of the former interview of the defendant has been made, the recording may be viewed by the defendant and the name and contact details of the person with whom the defendant may arrange for such a viewing; and

(f) if the relevant offence is a summary offence, any other information, document or other thing that the regulations require to be included in the preliminary brief.

In relation to what I just read out, parts (a), (b), (c), (d) and (e) would all likely be matters known at face value to the defendant. The charge sheet, the summary of the material facts, a statement of previous convictions, the record of the interview at which they were present and the statement about an audio-visual recording of the formal interview package they were also present. My point is the only bit of information that is not known is the important bit of information which under the bill as so drafted part (f) says that a summary offence or any other information document or thing that the regulations require to be included in the preliminary brief.

That is the material which some members of the legal profession argue ought to contain more prescription about the evidence that is held by the DPP and police in relation to the offences being brought against the person prior to them pleading so that they have the information.

The question is, how prescriptive should that be? I want to come to a situation in Victoria where a more comprehensive preliminary brief is prescribed in their legislation and that makes more information available to defendants in Victoria, which is more fitting with principles of justice I have described and provides for significant information to be provided before a plea can be entered into. I would like to read from Victorian legislation from the Criminal Procedure Act 2009, section 37, Contents of Preliminary Brief subsection (1):

A preliminary brief must include:

(a) a copy of the charge sheet in respect of the alleged offence; and

(b) a notice in the form prescribed by the rules of the court

(i) explaining this section and section 84; and

(ii) explaining the importance of the accused obtaining legal representation; and

(iii) advising that the accused has a right if eligible to legal aid under the Legal Aid Act 1978; and

(iv) providing details of how to contact Victoria Legal Aid; and

(c) a statement made by the informant personally that complies with subsection (2) and section 38; and

(d) any evidentiary certificate issued under any act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served.

Dr WOODRUFF (Franklin) - Continuing on with section 37, contents of the preliminary brief from the Victorian Criminal Procedure Act 2009 -[OK]

(c) a statement made by the informant personally that complies with subsection (2) and section 38; and

(d) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and

(e) a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions known at that time; and

(f) if the informant refuses to disclose any information, document or thing that is required to be included in the preliminary brief, a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure; and

(g) a list of any other orders that are or will be sought, as known at the time of preparation of the preliminary brief.

(2) A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include -

(a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and

(b) a description of the background to and consequences of the alleged offence, if known; and

(c) a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and

(d) a list of the names of all persons who, at the time the statement is signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and

(e) a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at the time the statement is signed.

(3) A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.

We can see that there is in Victoria, at least, a much more extensive and comprehensive requirement for the information that has to be disclosed to a defendant prior to them entering into a plea as part of the preliminary brief. It includes, for example, the complete and accurate statement of all the materials that are available to the prosecution at the time the statement is sworn. That does not mean that, if further information becomes available, that would not also be included because it includes a requirement that it is made known to the defendant or to their legal representative when additional information is made available.

It provides a much more extensive opportunity for a person who is accused to understand the extent of evidence that is available to the prosecution and will be brought to bear in a case against them. As is argued by a number of barristers I spoke to in our consultation process, it provides people with a much greater basis on which to consider that they probably, if they are guilty, ought to so plead in the first instance rather than to reflexively plead not guilty in the hope that they may be able to avoid the evidence and the case against them, which will be presented. On behalf of barristers I have spoken to, particularly one who practised in Victoria and has recent personal experience in the Victorian system, that there is as better way of doing things in the material available to a defendant in the preliminary brief process of disclosure than is being provided for in this bill.

However, that is not what we have here today. I believe the process, as described to me during the briefing by Department of Justice staff and my understanding from listening to the AttorneyGeneral's speech, is that there is a serious intention to look in detail during the implementation phase and the creation of regulations about the balance of what must be required in preliminary briefs. The bill as is written provides under clause 62(1)(f) that -

if the relevant offence is a summary offence, any other information, document or other thing that the regulations require to be included in the preliminary brief.

It provides an opportunity for more detail to be required to be provided in a preliminary brief than is written into the legislation at the moment.

I hope that the law from Victoria might be considered. I accept there is a balancing process in the number of cases that come before the court each year. I thank the staff, who provided me with some indicative raw numbers from the database. They do not represent formal data collection, which will appear in the annual report for the Magistrates Court, but they provided me with the percentage of summary versus indictable offences that have appeared in the Magistrates Court in the 2018 financial year. In total, 27 729 cases appeared. Of those, 24 758, or 89 per cent of them, were not indictable, 5 per cent were indictable, and 6 per cent were elected. As I understand it, 89 per cent of those cases remained in the Magistrates Court and the percentage of defendants who self-represented in the criminal division was 54 per cent. That is a very large number of people who represented themselves; 16 per cent were not represented and 30 per cent had unknown representation.

I accept that an extremely large number of cases go before the Magistrates Court, most of which are very simple and the defendant pleads guilty. There has to be consideration about the amount of resourcing required. This was the view of the Tasmanian Law Society: there is a balance to be struck between the resourcing required to provide comprehensive information to every single person in a preliminary brief stage and what is appropriate and necessary information to be provided during the preliminary brief. This is a matter of controversy.

I submit to the minister that it is something that I hope and expect - from the tone of conversations - will be discussed in more details when the regulations are being prepared in the implementation phase.

We certainly hope that the deficiencies will be addressed by subsequent regulations and that all the relevant stakeholders will be involved in that process. The success of the implementation phase of the bill will be where the detail is thrashed out. The Tasmanian Law Society was kind enough to provide me with the table of key changes that they had created from the consultation version of the bill and the final tabled version. They provided me with a list of things that had been accepted and things which had not been accepted in the manner. Most of the things they asked to be changed have been included in the final bill. They also highlighted that a number of those things were changed after they were invited into the working group. Clearly, their involvement in the working group enabled them to work through a number of changes.

My time is up and I will finish, if you would not mind indulging me, to thank again the staff who provided the comprehensive briefing and to make the point that the Tasmanian Law Reform Institute has also supported the fundamental procedural changes in this bill. They ask a number of questions which I would ask the minister to take on notice if she is able to, including whether there will be an increase in funding resourcing in order to make sure these reforms are able to occur? Also, whether measures will be implemented to ensure the smooth transition in the use and comprehension of the new terminology? The Tasmanian Law Reform Institute noted that the bill introduces changes in established terminology and they would like that to be clarified.