Trial delays courting trouble for justice

THE RECENT CONCERNS expressed by chief justice John Doyle about

increasing delays in the Supreme Court, particularly in the serious criminal cases
which come to that court, were not the first time he has voiced his alarm at what
is happening, and they are unlikely to be the last, because no quick and easy
solution is on offer any time soon.

The court’s target, of dealing with all contested criminal cases within a year of
them being referred to the Supreme Court within a year is nowhere near being
achieved. The situation is bad, and getting worse.

That is why the chief justice has said some way has to be found to arrest the trend,
and has set up a high-level working group to find a way. “We cannot let it run. It
is not satisfactory”, he said.

Since he went public, the details have been published in the annual report of the
Courts Administration Authority. They make ugly reading.

The court has a double target. It seeks to dispose of 80 per cent of criminal trials
within six months, and all of them within 12 months.

Almost none of them is making the six-month target. The figures for the past
three financial years are 29 per cent, 17 percent, four per cent. More of them are
making the one-year cut-off, but again the trend is downward: 92 per cent, 88 per
cent, 61 per cent.

And it has not bottomed out. The report predicts that, in the current financial
year, the number of trials completed within a year will fall from 61 per cent to
about 20 per cent, and the one-year completion-rate will be even less next year.

All of this occurs in a context in which the time-scales do not even reflect the
whole of the process. Before a criminal case reaches the Supreme Court, there will
usually have been a committal hearing before a magistrate, and that will typically
take place many months after a person is charged.

And there is a ripple effect. South Australia already has a relatively high
proportion of people charged being remanded in custody, and there are lively
political pressures from various directions to further restrict the access of charged
persons to bail. More remands in custody, and for longer periods, means more
people in jail. But the jails are already bursting at the seams, and so far we have
heard of no plans to increase jail capacity.

Some factors have been identified, but the great difficulty in correcting this
deterioration is that the clearly identifiable factors only have a marginal effect. For
example, there is a measurable increase in the number of cases coming to court

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because of changes in the law. But the increase in criminal matters is relatively
small. Even if it is assumed that some of this increase will be especially likely to
involve long preparation and a long trial, there would still be a crisis in the
clearance-rate if none of the increase had happened.

Similarly, the chief justice reckons that the building of more courtrooms, about
which he has previously spoken plainly, would help. Plainly, if there are more
courts fitted out with room for a jury to sit, there can be more criminal trials. But
the extra provision would have to be startling to make a big impact on the
backlog.

Again, the average length of a criminal trial has gone from six days to nine days in
five years. Looking at ways of tightening the trials themselves might bring that
back in, but what does half a week do to a backlog that is ballooning months
beyond what is desired?

The big factors seem to be difficult to get a firm grip on, and, if grasped, difficult
to do anything about. Assume, as the chief justice says, that trials are becoming
more complex particularly with the use of scientific evidence and most notably
DNA evidence. Does this encourage people to try to raise a reasonable doubt in
the jury’s mind about whether they were even present at the scene of the crime, by
coming up with evidence that hints at an alibi? Is there any retreat from this?

The chief justice has not even hinted at this, but could it be, paradoxically, that the
rhetoric of law and order, usually accompanied by moves to increase penalties, is
producing the injustice that comes from delay because people are less disposed to
plead guilty?

Could it be that the feverish reactions when someone “walks free” (as often as not
under a suspended sentence, but let that go) induces in police and prosecutors a
somewhat nervy tendency to chase every rabbit down every burrow in preparing
their cases, thus taking longer to get ready, and setting up longer trials because the
defence has more issues to get into an argument about?

When the chief justice’s working group reports on ways to complete criminal trials
promptly enough to be able to say that justice is being done, are we going to
discover the real costs of the law and order we all so eagerly desire?