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| Mr Deputy Speaker, I move that the bill now be read a second time. The purpose of this bill is to introduce amendments to the Justices Act and the Sentencing Act which will reform the way that summary criminal matters are progressed in the Court of Summary Jurisdiction. On 28 August 2013 I made a ministerial statement in this Assembly on the Pillars of Justice framework, and more specifically the part of the Pillars of Justice framework that dealt with the reforms to the summary criminal procedures called Swift Justice. This is a matter that I have pursued since that time and is one close to my heart. That ministerial statement outlined the key measures in the Swift Justice reforms which were: 1. a new preliminary briefs of evidence to provide early prosecution disclosure – this has been done 2. summary case conferences between the defence and prosecution to identify the issues in dispute 3. statutory sentence indications. The statistics we have about court outcomes in the Northern Territory demonstrate a number of key points. Firstly, and not surprisingly, the Court of Summary Jurisdiction determines the vast majority of criminal cases in the Northern Territory. The Supreme Court deals with only a small percentage, being the most serious and heinous of crimes. Secondly, that the majority of defendants whose matters are adjudicated by the court and not withdrawn – that is, over 80% - eventually plead guilty to charges in the Court of Summary Jurisdiction. Thirdly, following from that, only a very small percentage of matters - around 3% to 5% - are finally determined in the Court of Summary Jurisdiction by way of a contested hearing. Anecdotally, however, it is understood that a large proportion of the defendants that plead guilty do so at a late point in time and often after a hearing date has been set. This means that there are, in the meanwhile, numerous unnecessary court mentions requiring attendance by defence and prosecution alike. There is no legislation which comprehensively deals with summary procedure in the Court of Summary Jurisdiction. There are currently two practice directions which govern case flow management of summary matters in the Court of Summary Jurisdiction, soon to be called the Local Court. The first is the practice direction made by the former Chief Magistrate in 2010 which put in place what is generally known as the contest mention system. This practice direction is still in effect in Alice Springs and in other places where the court sits other than in Darwin. It was in place in Darwin until approximately March 2014. The contest mention system requires that where a defendant indicates that he or she is going to plead not guilty and contest a summary matter a full brief has to be prepared as a matter of course. Once the brief is prepared the parties are expected to discuss the matter between themselves to identify what evidence is required to be called at a contested hearing. At the contest mention the parties are required to hand up a contest mention form to indicate that the discussion had taken place. It is common practice for parties to hand up separate contest mention forms because they had not discussed the matters set out in the form. As I outlined in my ministerial statement the number of contest mentions far exceeds the number of contested hearings listed and the number of hearings that actually proceed and see the light of day. This means that matters are listed for contest mentions and contested hearings where there is no genuine dispute. Additionally, the Northern Territory police noted a significant increase in their workload following the implementation of that practice direction in preparing full briefs of evidence where a narrow range of issues were in dispute. As I stated in my ministerial statement, following the introduction of the contest mention system the number of contest mentions rose by 38%, but correspondingly the number of hearings listed rose by 6%. In practical terms that meant the police had to prepare an extra 700 full briefs of evidence for only 47 extra hearings. This represents a significant amount of wasted resources. Following my announcement of the Swift Justice reforms the then newly appointed and current Chief Magistrate, Dr John Lowndes, recognised the shortcomings of the Contest Mention System and expressed a desire to put in place a new practice direction to overcome the problems with the Contest Mention System earlier than legislative reform could be achieved. Therefore, in April 2014 the Chief Magistrate put in place a practice direction which was largely consistent with my original proposal to provide for a system of preliminary briefs and a summary case conferencing between the defence and the prosecution. This practice direction is only in effect in Darwin and on a trial basis. I understand that with much of the Contest Mention System, as the summary case conferences are voluntary, the indication is that the defence and prosecution are not engaging in those conferences on a routine basis. This is an unsatisfactory state of affairs. There is also the well-known problem of the defendant who will wait until the day of the hearing to see if the victim will turn up to give evidence. It is sometimes known as the wait-and-see defence. This is a particular problem in domestic violence cases, where often the victim will be intimidated by their family or community and eventually resile from giving evidence. If the defendant waits until the day of the hearing to plead guilty, the defendant has required the attendance of all witnesses, including the victim who is already traumatised by the entire experience and other witnesses who are required to be brought to court and even flown in from remote areas at great cost. The defendant has also required the court allocate valuable hearing times and resources to a hearing that will not proceed on the day. The background to this bill that I have just outlined represents a culture of un-cooperation and inefficiency. This bill is intended to encourage a change in culture, a change towards a system which is cooperative, efficient, fair and upholding the defendant’s right to a fair trial. The right to a fair trial, however, does not extend to wasting the resources of police, prosecutions and the courts. The change needs to be implemented by prosecutions and defence lawyers alike. The Chief Magistrate is to be commended for bringing about a change in the Darwin Court of Summary Jurisdiction to overcome some of the issues of the Contest Mention System, and for bringing procedures into line with the procedures that I am introducing today. I am aware that a number of stakeholders would prefer to see that the procedures and practices of the Court of Summary Jurisdiction continue to be regulated by the practice direction. However, not all of the measures proposed to be implemented in the bill can be dealt with by way of a practice direction. For example, there needs to be a statutory basis for the sentence indications and the defence disclosure requirements. With the greatest of respect to the Chief Magistrate, I do not think a practice direction can go as far as the measures can in this bill. Nevertheless, the Chief Magistrate has been extensively consulted in the development of the bill introduced today to ensure its workability, noting that some matters in the bill represent policy decisions of this government rather than approval of the Chief Magistrate. This bill is the result of a significant amount of work and research. In formulating the initial model for the reforms, we looked at other jurisdictions and the legislation they have over the years implemented to encourage efficiency and early resolution. The government is not going out on a limb with this bill. Most jurisdictions around Australia, New Zealand and the United Kingdom have put in place legislative procedures in the criminal courts to encourage efficiencies, and reduce delay in backlogs with varying degrees of success. As I stated in the ministerial statement, the bill is based in part on the Victorian Criminal Procedure Act of 2009, which has provisions for preliminary briefs of evidence and sentence indications. In 2012-13, following the implementation of its reforms, Victoria saved over 19 000 civilian witnesses, 27 000 police shifts and 45 000 court hours. The number of cases in Victoria is much larger than the Northern Territory, but nevertheless this represents a significant saving. Recent research suggests an efficient case management system is one where the guilty pleas are entered early, and the earlier the better. For example the Victorian Sentencing Advisory Council, in its 2007 final report entitled Sentence Indications and Specified Sentence Discounts: Final Report, noted that efforts to improve efficiencies in criminal procedures have targeted matters that resolved in a guilty plea late in the process. The Australian Institute of Criminology found that the late guilty pleas were the single most common reason criminal trials do not proceed on the day of their listing. Further there are efficiencies to be gained where a hearing proceeds. Court dates for hearings should be set on the basis of an issues-focused hearing. What I mean by a issues-focused hearing is one that is focused on only the issues genuinely in dispute, not one where all the issues are said to be in dispute, but then the contested hearing is only about a self-defence of identity issue. The key aims of the new Division 2A comprising the new procedures are set out in the new section 60AB of the Justices Act and are: (a) provide for a fair, efficient, expeditious and economical case management procedure in the Court of Summary Jurisdiction including by -
(ii) ensuring that if a compliant or information proceeds to a hearing of a charge the hearing is focused on the issues that are in dispute; and (iii) minimising the time between the making of the complaint and the laying of the information as well as the hearing of the charge; and The bill addresses these aims by introducing the following key elements: preliminary briefs of evidence to disclose the prosecution case at an early stage in proceedings; court supervised directions hearings; new defence disclosure requirements; a new sentence indication scheme; and amendments to the Sentencing Act to encourage earlier pleas of guilty. There has been extensive consultation on the reforms that I am introducing today. Throughout the development of the bill the Department of the Attorney-General and Justice has been working closely with the Chief Magistrates, the Office of the Director of Public Prosecutions and the Northern Territory Police. I am grateful for those agencies and the Chief Magistrates cooperation, as well as the constructive advice he has given me in relation to this bill. In May 2014 the Department of the Attorney-General and Justice released a consultation bill and brief discussion paper to external stakeholders including the Criminal Lawyers Association of the Northern Territory, the Central Australia Aboriginal Legal Aid Service, the North Australian Aboriginal Justice Agency, the Northern Territory Legal Aid Commission and the Law Society of the Northern Territory. Representatives of the Department of the Attorney-General and Justice also met with stakeholders in Darwin and Alice Springs. In response to the consultation a significant number of responses were received expressing a range of views, both positive and negative. Overall the consultation was both constructive and instructive. I thank our legal professional stakeholders for their constructive comments on the bill. Not all of their suggestions have been incorporated. However I can say that all comments have been given due and fulsome consideration. Further, in October 2014 I asked the former Victorian Supreme Court Judge, Professor Hon George Hampel AM QC to conduct a symposium with stakeholders in Darwin and Alice Springs via video link. Professor Hampel who is now a Professor of Advocacy and Criminal Trial Practice at Monash University, provides advocacy training through the Australian Advocacy Institute and came to the Northern Territory in early 2014 to provide a bar reader’s course in which I participated. I will say quickly that Professor Hampel is not physically a large man. He is now 82 and he has never been a large man in his life, but his presence is wonderful. There are not many people in the world that intimidate me, but Professor Hample is one of them because he is that smart. Professor Hampel presented a simple proposal for how matters should be managed by the Court of Summary Jurisdiction with particular focus on an issues identification and directions hearing where there would be a frank discussion between the prosecution, defence and magistrate about the issues that were genuinely in dispute; to ascertain what information the defendant needed to decide whether to plead guilty was appropriate or to narrow the issues for a future contested hearing. As a result of the consultation conducted in May 2014 and Professor Hampel’s Symposia, the bill was amended including the following key changes. · Firstly, the summary case conferences which was part of my initial swift justice proposal was replaced with an issue identification and directions hearing to be conducted by the magistrate who would ensure the parties complied and conducted, constructed discussion in order to progress the matter efficiently. · Secondly, the graduated sentence discount scheme which was in the consultation bill was removed. This was a scheme adapted from similar South Australian provisions whereby, if a defendant pleaded guilty at various points in time for the progression of the matter, then the defendant was entitled to receive a discount up to a specified maximum, with a maximum decreasing closer to the date of the hearing that the matter received. All stakeholders raised concerns about this scheme, particularly on how it could be practicably implemented in bush courts and the parity issues relating to matters which mandatory sentencing applied. One aspect of a graduated sentence discount regime was retained which I will explain in a moment. · The sentence indication scheme was drafted in more detail as to how it is to operate. I now turn to explain to key elements of the bill. The new section 60AC provides that the new provisions in the Justices Act must apply only to the Court of Summary Jurisdiction sitting in Darwin. Alice Springs and Tennant Creek: during the extensive consultation undertaken by the Department of Attorney-General and Justice it became readily apparent that a one size fits all approach would not likely succeed in the Northern Territory and some allowance needed to be made for the bush circuit courts. Thus, new section 60AC(2) provides that the Chief Magistrate may give a practiced direction to provide for procedures in other locations in the Territory where the court sits. If a Chief Magistrate does so, the practice direction must be consistent with the objects of the new Division 2A in section 60AB and must adopt the procedures of new Division 2A as far as practicable. The bill provides for a new preliminary brief of evidence which is intended to replace the former précis of facts. The version of this document has already been implemented by the Northern Territory Police and disclosure by preliminary brief is a requirement under the Chief Minister’s practice direction in Darwin. The preparation and service of the preliminary brief under the new sections 60AD to 60AF of the bill will ensure the prosecution case is disclosed to the defendant within seven days of the first mention of the matter in Court. The preliminary brief must contain a copy of the charges, the alleged facts on which the charges are based, a list of proposed witnesses including a description of the evidence that they are expected to give, a list of potential exhibits, copies of statements, copies of electronic records of interview and anything else that is relevant, available and required to be disclosed. It is also intended that the preliminary brief must contain not only the facts alleged, but also an indication of what evidence the prosecution has to support those allegations and the offence charged. This is the statement of facts in clause 60AF(1A). This represents the key difference between the former précis of evidence and the preliminary brief. The former précis only contained allegations and no outlines of evidence. It is important to note this is a preliminary brief, that is, it requires disclosure of what the prosecution has or knows about at the time of its service. It is not only the only disclosure obligation on the prosecution, and also it is not intended to bind the prosecution to evidence in the preliminary brief if further evidence comes to light during the progress of the matter. My understanding f5om practitioners in the criminal jurisdictions on both sides of the bar table is that the implementation of a preliminary brief by the Northern Territory police in the last year has been a very positive move. By disclosing the prosecution case early in the process the defendant and prosecution will know the strengths and the weaknesses of the case, and it provides the basis on which the matter can be finalised as early as possible. At the first mention, if the defendant does not please guilty, the matter will be set down for a directions hearing not less than four weeks following the first mention. The purpose of the directions hearing is to set out a new section 60AH, and is to identify the issues that are and are not in dispute and the steps required to progress the matter. At the directions hearing both the prosecution and defence will be expected to cooperate and discuss the matter frankly with the court. The prosecution will need to identify what further evidence is still outstanding, such as a forensic certificate. The parties will need to give an estimate of the length of the hearing if the defendant is pleading not guilty, and indicate any pre-hearing orders that they will seek from the court. The defence will need to indicate if they intend to rely on an alibi or expert witness. Also, the defence will need to disclose what issues are in dispute with a view to narrowing the issues to facilitate the resolution of the matter in a guilty plea, or to narrow the issues for a contested hearing, so that the time allocated for the contested hearing is a shorter time and focused only on the issues or issue in dispute. Under new section 60AD(3) the purpose of the directions hearing will be facilitated by the requirement for the prosecution to file a copy of the statement of facts with the court. It is intended that the magistrate who conducts the directions hearing will read from the statement of facts and be armed to be pro-active in ensuring that the parties are cooperating. For example, a magistrate with a statement of facts outlining allegations about an assault could ask questions of the defendant as to whether the identity is in dispute or whether the issue is self-defence. The new section 60AK states that where a defendant indicates an intention to plead guilty at a directions hearing the court is able to accept the plea and sentence the defendant or adjourn the matter for sentence hearing on another date. The court may also make orders for the further progress of the matter, such as setting a time frame for further disclosure of information by the prosecution and further issues to be raised by the defence. At the completion of the directions hearing the new section 60AK(4) requires the matter to be listed for a contested hearing or other directions hearing if one is required, or both, as the court sees fit. There should not be a further directions hearing listed as a matter of course, but only if the magistrate considers it to be a necessity. The intention of the bill is to reduce the number of unnecessary appearances, reducing delays and costs to all parties involved. Nothing in these procedures prevents the defendant from applying to a court at any time to list the matter for the purpose of pleading guilty. Nor does anything in these procedures prevent the prosecution from applying to the court to list the matter to withdraw the charges should that become necessary. The new section 60AP requires both the prosecution and defence to confirm with the court seven days before the hearing that they are ready to proceed with the hearing on the date that is set for it. The exception is at that point all parties are prepared for the hearing, summonses for witnesses have been served, and outstanding issues have been ironed out ready for the hearing to proceed reasonably and smoothly. It will no longer be good enough for a lawyer to look at the brief the night before the hearing and proceed on a completely different basis than as discussed at the directions hearing in front of the magistrate. The point of the directions hearing is for the preparation to be done at the front end of the process, not the back. The new section 60AS ensures that the prosecutor’s duties of disclosure at common law are not abrogated by any of the new provisions. Those duties are well ensconced in the common law and it is not the intent to interfere with settled law. However, the bill introduces three new defence disclosure obligations. First, the defendant is required by the new section 60AG to disclose the particulars of any alibi they may have seven days before the directions hearing, if they intend to rely on one. This ensures that the police can conduct appropriate investigations on the alibi and obtain any statements before the directions hearing. Second, the defendant will also be required under the new section 60AM to provide written notice to the prosecution of any expert evidence, or other objections to document or evidence the prosecution intends to call at the hearing, 21 days before the date of the hearing. For example, if a defendant made admissions in a record of interview, but the defendant argues that the interview was not admissible, the basis for that objection should be discussed and considered by the parties well before the date of the hearing. Third, under section 60AJ, at the directions hearing the defendant will be required to disclose what issues are not in dispute and what issues are. The issues that are not in dispute will often be easiest to identify. The requirement to disclose the issues in dispute requires the defence to take instructions and prepare. It does not require the defence to disclose or jeopardise how they run the defence at a contested hearing, nor does it infringe upon the right to silence or the presumption of innocence. As Professor Hample stated at his symposium, a good advocate will be willing and able to comply with this requirement as it limits the scope of issues the defence lawyer has to focus on and on which to develop a case theory. It also allows for a truly adversarial hearing, as the real issues are disputed rather than superfluous and tangential issues. It also encourages early pleas in appropriate cases or the prosecution to withdraw the charges in hopeless cases. New section 68AQ sets out the consequences for failing to comply with a defence disclosure requirement. On application by the prosecution, a court may order an adjournment for the defendant to comply with a disclosure obligation, the prosecution may make investigations and the court may allow the prosecution to call further evidence as a result of the disclosure. section 60AQ only applies to defendants and notably not to the prosecution. This is because the bill provides for new obligations on defendants, whereas on Section 60AS ensures that the prosecution’s disclosure obligations and consequences of non-disclosure at common law are not abrogated by the bill. This bill also introduces a system of sentence indications in a new subdivision 3. A sentence indication is defined in the bill as ‘an indication given by the court under Section 60AT of a sentence that the court would likely impose on the defendant’. The new section 60AT will allow a defendant to apply to the court for an indication at any time during the proceedings, but not within seven days of the contested hearing. The court will be able to indicate whether the court would impose a sentence of imprisonment, other type of sentence if a mandatory minimum sentence would apply, or if exceptional circumstances exist under Part 3, Division 6A of the Sentencing Act, which provides for mandatory minimum sentencing for assaults. This will allow the defendant to consider whether he or she will plead guilty at that point in time. They do not have to plead guilty. However it may be in their interest to do so, as generally the earlier they plead guilty the more likely the court will see the early plea as a factor in mitigation of their sentence. To give a sentence indication, the court does not have to conduct a full sentence hearing. But under the new section 60AU the court must consider a statement of agreed facts, the defendant’s criminal record and a victim impact statement or victim report if it is available. The court may also have regard to any other relevant information that is available at the time. The key principles behind the sentence indication scheme are: (1) if the court gives a sentence indication and the sentence indication is accepted where the defendant pleads guilty as the result of it, the court cannot impose a more severe sentence than the sentence indicated; (2) the sentence indication is only binding on the magistrate who gave it and the corollary is that only the magistrate can withdraw it; and (3) only the magistrate who gave the sentence indication can sentence the defendant if the defendant pleads guilty as a result of the indication. The new section 60AW provides for circumstances where the magistrate may withdraw a sentence indication. The magistrate may withdraw a sentence indication where the defendant has not pleaded guilty as a result of the indication within a reasonable time. What is reasonable will be determined by the magistrate. The magistrate may also withdraw a sentence indication if information comes to light which would lead a court to impose a more severe sentence than the sentence indication. This is necessary to avoid forcing a court into error where the sentence indication does not in fact reflect the seriousness and circumstances of the offending. If the defendant has pleaded guilty in relation to the sentence indication and the magistrate withdraws the sentence indication, the court must offer the defendant an opportunity to withdraw his or her plea. The other provisions relating to the sentence indications provide for further detail, including in the new section 60AZB which states that when a sentence indication has been given the court is able to give a further sentence indication if the court is constituted by the same magistrate and there has been a material change in the circumstances. Also a new section 60AZC allows another magistrate to step in where the magistrate who gave the sentence indication is unavailable for an unreasonable period of time to sentence the defendant. Additionally, the sentence indication application and the sentence indication is not admissible in proceedings under section 60AX. Under section 60AY the ordinary rights of appeal on the sentence of both the prosecution and defendant are retained. Finally the bill makes an amendment to the Sentencing Act to encourage compliance with the new provisions, even where the matter is contested in a hearing. The new section 5(2)(HA) will allow the court to take into account the extent of the defendant’s compliance with the new procedures in the Justices Act when sentencing the offender. If the defendant complied, even if he or she defended the charges in a contested hearing, the court may look positively on the defendant’s behaviour and factor that into the sentence. The bill also introduces other measures into the Sentencing Act which are intended to encourage early guilty pleas where appropriate. The new section 108A of the Sentencing Act will require a court to make clear what discount it gave a defendant on account of an early guilty plea for a summary matter. This is to promote transparency and send a message to all defendants that if they plead guilty early they will benefit from a discount. Further, a new section 123A will preclude the court from giving a sentence discount on account of a plea of guilty if the defendant pleads guilty within seven days of the date of hearing. The exception is where the defendant could not have pleaded guilty earlier, such as where the prosecution changes the charges. As I mentioned earlier, seven days before the hearing the parties are to inform the court that they are ready to proceed with the hearing so that they are expected to have prepared their case and discussed all of the issues prior to that point. These reforms will go a significant way towards addressing practical and cultural issues of the criminal legal practice in the Court of Summary Jurisdiction. I realise most stakeholders have not seen the bill in its current form and the bill looks different to that which was circulated for consultation back in May 2014. The bill is in essence the same policy apart from removing the impractical provisions and replacing summary case conferences with directions hearings. Nevertheless, in order to offer stakeholders the opportunity to comment on the technical aspects of the bill the Department of Attorney-General and Justice will circulate the bill to stakeholders for any comments they may have. Any issues that need to be addressed can be dealt with in the committee stage of the bill. I commend the bill to honourable members and table a copy of the explanatory statement. |