JUSTICES AMENDMENT (BRIEFS OF EVIDENCE) BILL
Debate resumed from 16 June.
The Hon. J. P. HANNAFORD
(Leader of the Opposition) [11.15 a.m.]: The coalition supports the Justices Amendment (Briefs of Evidence) Bill. In his second reading speech on 16 June, the Attorney outlined in detail the reasons for the bill, which may be summarised as saying that the requirement for the prosecution to provide to the defence a brief outlining all the evidence to be adduced against a defendant is limited to indictable criminal cases. The effect of the legislation will be that in all criminal cases, other than those that involve an appeal to the Local Court from the issue of infringement notices, the prosecution will be required to provide to the defendant a brief of the evidence to be adduced by the prosecution in that criminal prosecution. Such a procedure will result in significant benefits to the criminal justice system. A defendant representing himself will have a written document setting out all the allegations made against him, which is important if the defendant is in court for the first occasion and does not have legal representation.
The defendant, when representing himself, will be able to form the view immediately as to whether he is prepared to enter a plea of guilty or not guilty to the allegations as they are detailed, or to seek an adjournment of the case. There is good reason to believe that defendants, when they know the full details of allegations made against them and the evidence to be brought against them, more likely than not will be prepared to immediately accept their responsibility as defendants, or as accused persons, and to indicate whether they accept the allegations and will plead guilty. If the matter is to be adjourned and a defence entered, a further benefit will flow in that the legal adviser will have a full outline of the allegations made. Thus, the legal
adviser will be able to inform the defendant whether he has a credible defence to the charges, and a determination can be made as to whether a plea of guilty should be entered. Again, that will increase the efficiency of the courts.
Overall the procedure will result in significantly less trauma for defendants and significantly less trauma for victims of crime, as they will know much earlier in the proceedings what is happening to charges laid as a result of crimes committed upon them. The courts will operate much more efficiently, which will result in a much more effective criminal justice system. The Government has given itself a regulation-making power to extend the range of matters that can be brought under the auspices of this legislation. It is an administrative procedure that the coalition need not oppose. My consultation with all of the interest groups - the Law Society and the Bar Association - has elicited support for the proposal. However, my colleague the Hon. M. J. Gallacher, who has had some experience through the Police Service, will outline further an administrative concern, because we have heard nothing from the Government in this regard.
This legislation will have a significant impact on police administration. Police will have to prepare their cases much earlier. They will have to provide much more detailed documentation in response to charges. I believe that this increased workload will result in a demand for a significant increase in administrative staff or a significant increase in police. The Government has not indicated whether or not those resources will be made available to meet the demands of this legislation. If those resources are not made available there will be a reduction in the effective policing of this State. If police spend more time doing the paperwork they will have less time available to them to undertake the real policing that this community demands. The Opposition will closely monitor the impact of this legislation.
I place on the record the Law Society’s response to this legislation as a reminder to future governments - in particular as a reminder to me when the coalition returns to office in 1999. The Law Society supports the proposals embodied in this bill. In fact, it said that it welcomes the bill and looks forward to its implementation. The Law Society, in a letter to me dated 17 June 1997, made the following further comment:
The Society also supports the defence having a reciprocal right to serve witnesses’ statements on the prosecution and have them tendered into evidence by consent. However, this may have to wait until another day.
I tried to draft amendments to this legislation to achieve that objective. However, that was not possible within the ambit of this bill. I lend my support to the request made by the Law Society. The defence should be put in a position where it can file briefs in response, which would increase the efficiencies of the courts and result in less potential trauma for victims. The Opposition supports the legislation. I encourage the Government to take into account the suggestion made by the Law Society.
The Hon. ELISABETH KIRKBY
[11.23 a.m.]: The Australian Democrats support the Justices Amendment (Briefs of Evidence) Bill. I am informed that the Criminal Law Committee of the Law Society suggested that the legislation should provide for the service of prosecution briefs in summary criminal matters. Before this legislation was drafted consultations took place with the police, the Chief Magistrate’s office, the Director of Public Prosecutions, the Legal Aid Commission and the Bar Association. This bill will amend the Justices Act 1902. Briefs of evidence must be served in summary criminal matters unless a magistrate orders otherwise. This relates only to matters to be prosecuted summarily by the Police Service or the Director of Public Prosecutions; it does not relate to matters that may be prosecuted by a penalty notice.
The Leader of the Opposition just informed the House that this legislation is supported by the Opposition as well as by the Government. Honourable members on both sides of the Chamber have agreed that there are benefits in the scheme. Those benefits are quite simply put: there will be fairer hearings due to the defendant knowing what he or she is up against in the way of evidence. There should be shorter hearings as they will be focused on relevant issues. It is quite possible that more pleas of guilty will be entered prior to these hearings. There appear to be no arguments against this legislation. As I said earlier, I support the legislation. Any proposal that speeds up a court process and relieves pressure on court lists, without the rights of the accused being diminished, should be supported. There is no compulsion on the accused to plead guilty but, after seeing the prosecution case, an informed decision may be made.
In some cases the most advantageous result might be to plead guilty and, therefore, hope for a lighter sentence. I was informed earlier that the Opposition would move an amendment to this legislation on the advice of the Law Society to have the defendant serve a brief on the prosecution. I gather that the letter from the Law Society suggested that the amendment should be in the form of an option: that it may serve its brief on the prosecution.
However, for the reasons just given by the Leader of the Opposition, I gather that that amendment is not possible and it will not be moved in the Committee stage. For those reasons I am happy to support the legislation as it stands.
The Hon. M. J. GALLACHER
[11.26 a.m.]: I support the comments made by the Leader of the Opposition in debate on the Justices Amendment (Briefs of Evidence) Bill and place on the record some of the practical implications of this legislation to ensure that, when it is read in 12 months or two years time by the powers that be, whether it be by the Parliament or by the New South Wales Police Service, there is a record of its implications for policing. All honourable members would be aware of the problems being experienced throughout New South Wales by the Police Service in its delivery of services. It is a matter for debate whether or not those are perceived problems or actual problems. Overall, members of the community believe that the level of service that is being provided has been found wanting. They are concerned about one area of policing, that is, the response times. In my view, this legislation will impact negatively upon response times.
The Justices Amendment (Briefs of Evidence) Bill was introduced in this House with all the best intentions. In reality it will be a further impost upon the delivery of services provided by members of the New South Wales Police Service at the sharp end of policing - the street level - and not necessarily from an administrative point of view. Let me put the problems being experienced into perspective. The workload is so great that police can often find themselves neglecting their duties. They can easily fail to supply within 14 days briefs of evidence in indictable matters, something that is required by present legislation. For a number of reasons they can often find it difficult to finalise those briefs of evidence and place them before their local brief inspection officer. Once this is reflected in an audit of the system they have to justify their actions to their commanding officer. They may well be neglecting their duties by not preparing or presenting briefs of evidence.
Indictable matters that are complicated and involve numerous witnesses generally are the domain of criminal investigative officers, detectives or specialists in the field of criminal investigation. Many indictable matters, apart from assaults and fraud, are left to detectives, whilst uniformed police perform day-to-day policing duties, which include attending domestic disputes and dealing with street crime. By including summary offences in the legislation a requirement will be placed on police to prepare a brief of evidence within 14 days of a plea of not guilty being lodged by a defendant. The amount of time spent interviewing witnesses and undertaking administrative duties by uniformed, general duty and highway patrol police officers involved in the investigation of criminal offences will increase dramatically. Failure to provide such a brief may result in an officer being charged with neglect of duty.
Some time ago I spoke in this House about an investigation in which I took part that involved a young woman who was charged with in excess of 1,200 offences of bankcard fraud. Because of the small monetary value involved in each offence the cases were dealt with by the Local Court and, therefore, apart from some aspects of the evidence, a brief of evidence was not required. The proposed legislation places a requirement on the Police Service to supply a brief of evidence to an offender charged with such offences. To put it into perspective, the 1,200 offences of bankcard fraud of which I spoke were committed by the use of a number of bankcards. In such a case the Police Service, for identification purposes, would have to interview each of the persons upon whom the fraud was committed, bearing in mind that there were 1,200 incidences of fraud in the case. Furthermore, witnesses to each offence may have to be interviewed. It may well be that in excess of 2,000 people would have to be interviewed to prepare a brief of evidence.
Often offenders will plead not guilty in order to find out more about the prosecution case and to delay the matter before the court. By pleading not guilty a defendant can drag out a court case by telling a magistrate or judge that he or she needs more time to present a case. The proposed legislation will create a propensity for most offenders to plead not guilty to delay proceedings. Police will have to apply for longer adjournments to enable them to prepare their cases because of their increased workload. For all its good intentions, the result of the proposed legislation will be a reduction in the service provided at street level by the New South Wales Police Service. More police will be involved in undertaking administrative duties and compiling briefs of evidence. There will also be an increase in costs as more police revert to obtaining expert evidence.
With regard to what plea will be entered by specific defendants police have, traditionally, acted on their instincts. Under the proposed legislation, from the outset police will have to obtain expert evidence, such as fingerprint or other forms of scientific evidence. A cost will be involved in the
gathering of such evidence. Overall, a negative cost factor will be the result of including summary offences in a requirement that previously related only to indictable offences. This morning during a brief consultation with the Attorney General I asked whether the proposal had been trialled. Unfortunately, the Attorney General was not in a position to give me any further advice. To my knowledge, there has been no trial, certainly not in the metropolitan areas of Sydney. Before the legislation is introduced, it would be preferable to trial it for a period of six months in areas such as Blacktown, Penrith or on the central coast, to determine its cost and to monitor its effect on delays in the court system and on the delivery of service by the Police Service.
The Hon. J. P. Hannaford:
You could do that on the commissioner's instructions.
The Hon. M. J. GALLACHER:
Yes, it most certainly could. I suggest that the Attorney General consider such a trial, before introducing the legislation statewide, for a period determined by the Attorney General, say six months, to monitor the overall costs and the benefits of the system as it relates to defendants, the Police Service and the community as a whole. The legislation is to be commended. It will improve the integrity of the system and benefit those defendants who are not sure of what is available to them in the system. They may not have the opportunity to get legal assistance or for any number of reasons may not be aware of the way cases are presented in the Local Court. Having said that, there are still a number of what seem to me to be unexplored negative impacts. As the Leader of the Opposition correctly points out, we will monitor the impact of the legislation throughout New South Wales. I am not aware of any comment by the Police Association on the proposed legislation. Perhaps in the future the Parliament will hear from the association about its impact on policing generally.
Reverend the Hon. F. J. NILE
[11.37 a.m.]: The Christian Democratic Party supports the Justices Amendment (Briefs of Evidence) Bill, which will bring into operation a system that deals with the service of prosecution briefs in summary matters. It was recommended in July 1995 by an interdepartmental working party which discussed the Law Society’s proposal of January 1994. Members of the working party included representatives from the Ministry for Police, the Law Society of New South Wales, the New South Wales Young Lawyers, the Chief Magistrate’s Office, the Office of the Director of Public Prosecutions, the Legal Aid Commission and the New South Wales Bar Association. As the Hon. M. J. Gallacher said, Parliament has not received a response from the New South Wales Police Association, the views of which would not automatically be included in the position put by the Ministry for Police.
The working party agreed that the proposal was a good one and should be proceeded with, that it provided certain benefits such as fairer hearings, as defendants became apprised in advance of the prosecution case; shorter hearings that are more focused on the relevant issues; and more guilty pleas being entered prior to the commencement of hearings. The bill relates only to matters to be prosecuted summarily by the Police Service and the Director of Public Prosecutions. It does not relate to any matter that may be prosecuted by way of penalty notice. The Christian Democratic Party urges the Government, as the Hon. M. J. Gallacher did, to monitor the operation of the legislation, not merely as to its impact on the court system but also as to how much time is taken by police officers undertaking paperwork for this purpose.
A major drama has been developing in places such as Cabramatta, where police have been very active, as directed by the Government and as required by the community, in cracking down on drug traffickers. Under present procedures police officers are tied up with a tremendous amount of paperwork. We have tried to reduce regulations for small business, and perhaps it is time for a committee to review administrative requirements in the Police Service with a view to reducing paperwork and the number of forms that have to be filled in. Streamlining of the lengthy procedures required would mean that a police officer who is active in charging many offenders will not have in the back of his mind that the amount of paperwork required will take him away from his main role, which is protecting the community and charging persons breaking the law. I urge the Government to monitor the operation of the legislation and to consider an overall review of paperwork that police officers are required to complete so that they may be set free to do their job on the streets.
The Hon. J. W. SHAW
(Attorney General, and Minister for Industrial Relations) [11.41 a.m.], in reply: I thank honourable members who have supported the bill, although at one stage of his speech the Hon. M. J. Gallacher seemed a little lukewarm in his support for the bill. However, he finished on a brighter note.
The Hon. M. J. Gallacher:
I came good.
The Hon. J. W. SHAW:
He came good at the end and he recognised the bill as an appropriate innovation. More seriously, the House has
recognised this as a step forward. It is part of a series of positive criminal law reforms that the Government has put to the Parliament. I am pleased about the progress and quality of those reforms of the criminal justice system. Concern has been expressed about police resourcing in terms of backing up this new process of serving briefs in summary matters. The police have been involved in this process: a Police Service representative was on the working party. My understanding is that it is accepted that resources can be provided to achieve this desirable end. It is common ground that the prior service of briefs is valuable. I believe the police will be able to adequately service this matter and deal with it effectively.
It is not true that this is an entirely new phenomenon. Briefs are served as a matter of form in many Local Courts. Prior service of the police brief goes on informally at the moment, so this will not be an entirely new development. I stress that briefs are required only once a plea of not guilty has been entered. In such cases a brief is prepared in any event for the use of police prosecutors. I thank all those who have been involved in the development of the bill. In particular I single out police prosecutors, who have been so constructive in helping to establish the informal arrangements that presently exist for the service of briefs. That sort of initiative has made the introduction of legislation such as this so much easier than it might have been.
This is a reform that will provide clear benefits to every person who comes before the Local Court. It will simplify and clarify defended hearings. It will encourage pleas of guilty in appropriate cases. In short, it will contribute significantly to the Government’s ongoing quest to ensure that the courts are responsive to the needs of the people of this State. The Leader of the Opposition had a query about the proposal flowing on from submissions by the Law Society of New South Wales. He suggested in effect that a provision might be inserted in the bill or might be enacted in future to allow the defendant to serve statements of witnesses and to tender those documents in evidence in lieu of oral evidence.
The Government’s response to that is that section 190(1) of the Evidence Act 1995 already allows for such a procedure. It does that in a comprehensive way by providing that the rules of evidence which would otherwise prevent the tender of such documents may be waived by the court where the parties consent. The Evidence Act came into operation only in September 1995 and it may be that those provisions have not been fully considered or fully comprehended. But the Government’s immediate response to the suggestion of the Opposition is that the matter is already attended to by the provisions of the Evidence Act, which is part of a uniform national system of evidence laws. Obviously one would be reluctant to vary the system of rules of evidence in regard to only one State. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.