Fraying of the Golden Thread

Sword of Damocles by Felix Auvray

(The 15th International Law Congress, Adelaide 12-16 October 2016)

At the Congress on Thursday 13th, David Edwardson QC explained (with some warmth) that he had been able to take part in the congress’ panel discussion on varied perspectives in the criminal law because his trial scheduled for most of the month had gone off, as the Crown had delivered some 5 lever arch files of (hitherto called-for-but-not-produced) evidence to his chambers, a matter of a day or so before ‘the bounce’.  No doubt the inevitable adjournment is added to the South Australian Attorney-General’s stats on intolerable delays, which he will use as a ground to introduce reform such as the Summary Procedure (Indictable Offences) Amendment Bill 2016.  The A-G’s 27/9/2016 media release includes these phrases: “In 2014-15, more than a third (35 per cent) of all criminal trials across the Supreme and District Courts in Adelaide were vacated due to late guilty pleas…all too often the court’s time is wasted in hearing matters where an adjournment is sought late or where a defendant enters a late guilty plea…This extends the delay for victims and witnesses.”  No doubt the delay for the accused from an adjournment such as described above, resulting in another year on remand or home detention, was also taken into account by the A-G, sub silentio.

There are some novel features in the Bill.  One is the development of “Case statements.”  These are defined in clause 123 of the Bill.  After the committal (which no longer yields much information on the Crown case, due to its modern, truncated nature) the Defence will be obliged to file and serve a case statement.  The explanatory memorandum states (with our emphasis): “The defendant will be required to prepare their own case statement in response, four weeks after receiving the prosecution case statement. The defendant will have set out any facts or elements that they agree with based on the prosecution statement, indicate whether they consent to any of the prosecution applications, and set out whether they intend to raise various issues such as challenging the admissibility of a police search or a police interview, or whether they want the prosecution to prove “routine” matters such as the chain of evidence on an exhibit. The defendant will also be required to set out any defences he or she intends to rely on, such as self-defence, provocation, duress, and mental incompetence. If the defendant does not comply with the requirement to provide this information, they won’t be permitted to lead evidence at trial that is inconsistent with their case statement except in exceptional circumstances. If they conduct their trial in a way that is contrary to the position taken in their case statement, the court or a party to the proceedings will be allowed to make comment on that to the jury.”

It’s actually worse than that because the adverse consequences of a stuff-up or change in position, often brought about because of a stuff-up or change in position by the prosecution, go further, to require an accused’s solicitor to give evidence or be disciplined for non-compliance.  We note that there appears to be no adverse consequences in the Bill if the prosecution’s case statements are non-compliant or changed late in the proceedings.

Having had some experience of ‘case statements’ in the forum of civil law disputes (where they are called ‘pleadings’ and everyone is expected to put their cards on the table), we foresee some significant and substantial problems arising in terms of case flow management of criminal cases, which are meant to be speedy, but in this State, all too often, proceed at the pace of a drugged hippo, impressive to officers of the Holy Inquisition perhaps, but nobody else.  Putting ourselves briefly in the shoes, then, of a solicitor instructed to defend an accused charged with an indictable offence under the newly proposed paradigm (let’s call ourselves Saul Goodman), what do we find?

1. Saul has participated in the committal but is not much wiser as to the full ambit of the case against his client (let’s call his client Walter White);
2. Saul receives the Crown’s case statement.  It doesn’t add much and moreover, there are gaps in the material that he needs from the prosecution.  He can’t get them at this stage because although the prosecutor agrees they are relevant and need to be disclosed, he hasn’t got them from the police just yet;
3. In a civil context, one would rely on various pleadings rules – an application to strike out the case on the basis there is no cause or material fact pleaded; an application for further and better particulars; an application for immediate provision of all documents referred to in the pleading. None of that seems to apply here.
4. Saul is not going to chance being struck-off because he was required to plead precisely (and against Walt’s right to silence) to a vague and amorphous prosecution case statement.  So he’s going to get a barrister, perhaps a silk, to ‘settle’ or correct the client’s case statement. Good luck with getting senior counsel (who, because they are the best in their business, are very busy) to do this in four weeks!
5. Saul might not have the expert evidence to be led by the prosecutor at this stage.  So stating special defences could be a problem.  Saul decides to play safe and adopt a ‘kitchen sink’ approach.  This means the Crown will want another few months to gather material to answer these pleas.
6. Saul is worried about his livelihood in the event something goes wrong with the case statement, so he’ll insist that when he visits Walter in gaol, he’ll want Walt’s psychologist along, and the barrister, to ensure no special defences are missed, and to get signed instructions from Walt as to the pleading, getting experts, and a bunch of other esoterica, none of which Walter may fully understand in his circumstances, let alone be able to afford.
7. Saul worries about the binary oppression effected by pleadings.  That is, as Judge Lunn used to point out in the civil courts, pleadings place both an outer limit and an inner limit on what a party can present at trial.  Imagine if Walt’s charges include murder or high level/high volume drug-trafficking, but exculpatory evidence can’t be led because it was overlooked, or not fully articulated, at the pleading stage!

The Attorney-General would know that civil courts have altered their rules to relax some of the pleadings rules in order to avoid extensive, costly and often sterile pleadings skirmishes.  Yet here, a guillotine mechanism is proposed that would, if applied in a civil context, bring us back to square one.  One can foresee (let’s say in a complicated fraud case) the case-statement-regime costing as much as the trial.

In Aon Risk Services Australia Ltd v ANU [2009] HCA 27, a plaintiff in a civil case settled with one defendant at trial and got an adjournment against the other defendant (Aon) based on an application to substantially amend the pleaded claim against it. The trial went off and the judge eventually allowed the amendment to the claim, almost a year later.  Aon appealed on the basis that this simply shouldn’t do, and the High Court unanimously agreed, in pungent terms. Justice Heydon observed: “The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.”

His Honour’s description fits the circumstance of a late-breaking introduction of prosecution evidence, such as described by Edwardson QC above, where a court admits the evidence or imposes an adjournment on the accused.  If the State does effectively impose pleadings on criminal cases, not only will an incursion into an ancient right be compromised (such as the right to a speedy trial, the right to a fair trial, the right to silence – rights so ancient that they pre-date Magna Carta and so fundamental that they are affirmed in the U.N Declaration of Human Rights 1948 and the 1953 European Convention), not only will additional costs be imposed on all parties, and the community, but it will be hard to see how a court could not follow Aon when the prosecution seeks to lead evidence, or alter its pleading, in the shadow of trial. If pleadings are in, Aon suggests that late changes to a prosecution case won’t be allowed, except perhaps where the accused is given bail, and the defence gets the costs thrown away.

[UPDATE: The SA Law Society reports (2 June 2017) that the requirement for the Defence to provide a case statement in a criminal trial has been dropped from the Summary Procedure (Indictable Offences) Amendment Bill.  The Society and the SA Bar Association expended much time and effort advocating for the killing-off of this infamous so-called reform. Everyone could have saved so much bother by listening to The Varnished Culture, yelling as usual from the back of the truck! Anyway, all’s well that ends well.]