this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Faster access to justice revisited

Feature Articles

Cite as: December 2009 83(12) LIJ, p.38

Criminal lawyers need to understand both the new summary crime procedure introduced by the Criminal Procedure Act and its practical implications.
 

By Paul Jansen

An article in the LIJ, “Faster access to justice may hit hurdles”,1 reported comments by Chief Commissioner Simon Overland and LIV Criminal Law Section co-chair Michael McNamara about the new summary crime procedure to be implemented by the Criminal Procedure Act 2009 (the Act).

The aim of the new procedure is to identify and initiate cases which can be dealt with more expeditiously. What is sought is a reduction in time between the detection of an alleged offence to the first mention date and when an accused makes the decision about how to proceed with their case.

The procedure, anticipated to come into force on 1 January 2010, will be rolled out across the state in an orderly fashion. As Mr McNamara said, “all parties need to roll up their sleeves to try to make it work”.

Successful implementation will depend significantly on the quality of exchange of information between the relevant agencies. There needs to be a high level of common understanding about the new procedure and its key components – the preliminary brief and summary case conferencing – as well as its effect on accused and legal practitioners.

The new procedure

The new procedure is explained in the Explanatory Memorandum to the Criminal Procedure Bill 2008 as follows:

“The notice to appear process is designed to provide preliminary disclosure of the case against the accused at an early stage in the proceeding and an opportunity for the parties to discuss the case at a summary case conference. If a matter does not resolve at a summary case conference, full disclosure is available before an accused proceeds to a contest mention hearing or, if a contest mention hearing is not held, a summary hearing”.2

The summary case conference is described as follows:

“The conference is intended to be a flexible, out of court, case management tool designed to encourage discussion between the parties at an early stage in a summary proceeding. An express purpose of the conference is to allow the accused to identify material that may be useful in resolving the case (for example the statement of a key witness or a copy of an interview with the accused), and for the prosecution to provide such material”.3

None of this is controversial or difficult. This is what the Magistrates’ Court and both parties to the new procedure will be dealing with. The twin advantages of the procedure are early preliminary disclosure and someone to negotiate with (details of the local summary case conference manager will be provided in each case). The summary case conference can be conducted before the return date (the first mention).

The most important issue for accused and legal practitioners to appreciate is that none of the “rights” they have under the current procedure are lost under the new procedure.

However, the new procedure will affect the way legal practitioners work. Decisions about how a case is to proceed will have to be made much earlier. This is because under the new procedure the first mention will be listed earlier and the summary case conference is the mandatory gateway to a contest mention, contested hearing and/or a request for the full brief.

There will no longer be virtually automatic adjournments at the first mention or because the legal practitioner doesn’t have a copy of the brief. A summary case conference manager will be available for negotiation before and at court. Otherwise, as noted above, the “rights” of the accused remain the same.

The preliminary brief and summary case conferencing have been piloted at Heidelberg and Ballarat Magistrates’ Courts since November 2008. Referring to the pilot, the Chief Commissioner said,4 “The time it takes to get matters to court has dramatically dropped from 210 days to 35”. The mandatory requirements that a copy of the preliminary brief be available at court and that a summary case conference be conducted before proceeding further will aid early decision making in many cases.

Potential benefits

The potential benefits to Victoria Police were outlined by the Chief Commissioner5 and there are anticipated benefits for the Magistrates’ Courts – for example, fewer court events on average per case. The benefits to accused and legal practitioners may seem less clear and genuine concerns were raised by Mr McNamara in the LIJ article.

The new procedure is not complex but as Mr McNamara rightly pointed out, “there are reservations about the practical aspects”. Some of his concerns included:

1. Difficulty for police meeting the statutory timelines

This should not be a problem because an informant should not serve a notice to appear until reasonably certain that the charge(s) can filed within 14 days and a preliminary brief can be served within 21 days. Should an informant get it wrong, they are required to give notice in writing to the accused that the charge(s) has not been filed and the accused is not required to appear at court. An informant who gets it wrong will primarily have wasted their time and that of their supervisor.

2. Practitioners receiving only a summary of statements, not full statements

The preliminary brief is only intended to be a starting point. In some cases it may also become the finishing point while in others it will represent the first, second or third quarter of proceedings.

3. Preliminary brief – statement accuracy

In his speech on 4 June 2009 the Chief Commissioner said, “Our reality is that the majority of criminal briefs are prepared by our most inexperienced staff”. He went on to briefly outline changes in brief preparation and improved supervision before authorisation to address this concern.

All informants are required under the provisions of the Act to sign and acknowledge as true and correct the contents of the preliminary brief and are subject to the law of perjury in doing so.

Responsibility for meeting statutory timelines and providing early credible preliminary briefs rests with the police. Those briefs need to be both credible and adequate – credible because they should accurately reflect the available evidence and adequate because although an abbreviated version of that evidence, they should also be comprehensive. Police procedures for drafting, supervising and authorising preliminary briefs will be significantly changed to ensure this is done.

4. Getting adequate and timely information from police to request legal aid funding

Ideally the summary case conference will occur before the return date (first mention).

For various reasons that will not happen in all cases. As the notice to appear and the preliminary brief will be served on the accused before the first mention, steps need to be taken to ensure contact is made by the accused with their representative before the return date. Ways to address this are being considered, including providing a copy of the preliminary brief to the accused’s representative by email or fax.

It is anticipated, however, that the accused will contact their lawyer on the return date at the latest. Given that where an accused qualifies for a grant of legal aid the legal practitioner has 14 days in which to apply for assistance, not having legal aid in place should not to be a problem.

Implementation and rollout

Therefore, in the spirit of “all parties need to roll up their sleeves to try to make it work”, both Victoria Police and Victoria Legal Aid acknowledged the benefit of having a defence lawyer working with the Brief Integration Project to identify and resolve areas of concern. The author of this article, a senior solicitor with Victoria Legal Aid, has been seconded to work with that project on the implementation and rollout of the new procedure.

His role includes frank discussions with his colleagues about the quality of implementation. That involves, for example, consideration of the important issues raised by Mr McNamara. Those discussions have focused on the quality of preliminary briefs and the efficacy of case conferencing.

The preliminary brief and summary case conference are being piloted at Heidelberg and Ballarat Magistrates’ Courts while the summary case conference only is being piloted at Ringwood, Dandenong and Sunshine Courts. Valuable feedback is being received from both sides at these locations. To ensure wider familiarity, case conferencing will be rolled out at all other metropolitan Magistrates’ Court as well as Geelong Magistrates’ Court.

To maximise the quality of implementation all agencies need to understand the new procedure in theory and practice from an agreed position. If that can be achieved, the task of evaluating and addressing reservations about the practical aspects will be much easier.

Implementation and rollout of the new procedure is being overseen by the Summary Procedure Steering Group. It includes the Magistrates’ Court, Victoria Police, Victoria Legal Aid, the Criminal Bar Association and the LIV Criminal Law Section. It is facilitated by the Criminal Law Justice Statement Unit within the Department of Justice.

If you have any questions, suggestions or concerns, please do not hesitate to contact the following:

  • Defence practitioners: Paul Jansen, Senior Solicitor with VLA, Brief Integration Project: paulj@vla.vic.gov.au;
  • Police: Inspector David Cowan, Project Manager, Brief Integration Project: david.cowan@police.vic.gov.au; or
  • Magistrates’ Court: Brett Cain, State Coordinator, Magistrates’ Court: brett.cain@magistratescourt.vic.gov.au.

PAUL JANSEN is a senior solicitor with the Criminal Law Division of Victoria Legal Aid and an accredited criminal law specialist. He is currently seconded to the Brief Integration Project, Victoria Police.

1. July 2009 LIJ, p20. The comments by the Chief Commissioner were part of his speech at the LIV President’s Leadership Lunch on 4 June 2009.

2. Clause 39, p17.

3. Clause 54, p24.

4. In his speech at the LIV President’s Leadership Lunch.

5. Note 4 above.

Comments




Leave message



 
 Security code
 
LIV Social
Footer