The ‘scales of justice’ have tipped heavily in favour of the State in recent years, to the detriment of anyone who may be suspected of a criminal offence.
Increases in police powers give law enforcement authorities the ability to arrest people in a wider range of situations, to hold them behind bars for longer without charge and, in the context of ‘special intelligence operations’, to enjoy immunity from both civil and criminal prosecution even if they commit heinous acts against people who turn out to be completely innocent.
Police in Australia have greater access to the personal data of individuals than any other developed country, thanks to meta-data retention laws, creating the danger of misuse and reducing personal freedoms.
Mandatory defence disclosures now require defendants to inform the prosecution in writing of their defence and a range of other matters well before a trial even commences, and the defence is now unable to access an array of potentially relevant material when it comes to sexual assault cases – even prohibited from filing subpoenas to request materials which may be relevant to defending an accusation.
Police Do Not Need to Serve Evidence
For many cases in the local court, police are no longer required to give defendants any evidence at all, thanks to section 187(5) of the Criminal Procedure Act (‘the Act’). Yes, that’s right- in a range of matters, police can charge a person with a criminal offence and refuse to provide any statements or evidence at all to support their case.
Under Regulation 21 of the Criminal Procedure Regulation 2010, this relates to any of the following classes of offences.:
(a) any offence for which a penalty notice may be issued (other than an offence that is set out in Schedule 3 and that is not referred to below),
(b) proceedings for offensive conduct (section 4, Summary Offences Act),
(c) proceedings under the Road Transport Act for:
- section 53 (3): driver never licensed,
- section 54 (1) (a): drive whilst disqualified,
- section 54 (3) (a): drive whilst suspended,
- section 54 (4) (a): drive whilst licence refused or cancelled (other than for non-payment of fine),
- section 54 (5) (a) (i): drive whilst licence suspended (for non-payment of fine),
- section 54 (5) (b) (i): drive whilst licence cancelled (for non-payment of fine),
- section 110: drink driving, and
- section 112: driving under the influence.
(d) proceedings for a summary offence for which there is a monetary penalty only,
(f) proceedings for drug possession offences (section 10, Drug Misuse and Trafficking Act), and
(g) proceedings for possession of a prescribed restricted substance offences (section 16(1), Poisons and Therapeutic Goods Act).
Indeed, defendants are now expected to defend these cases without receiving the evidence against them, which, of course, makes it impossible to review and investigate the credibility of that ‘evidence’ and, in many cases, to prepare as thoroughly as possible.
This is just a snippet of the current state of criminal ‘justice’ here in NSW.
But one Local Court Magistrate felt the situation should be even more difficult for defendants.
The Case of Emily Salisbury
On 3rd October 2015, Ms Salisbury was issued with a penalty notice for speeding.
On 4th January 2016, she elected to have the case dealt with by a court rather than pay the fine.
She entered a plea of not guilty and the case reached a defended hearing before Magistrate Stephen Corry in Katoomba Local Court on 3rd May 2016.
Under section 187(5) of the Act, speeding offences are one of many which do not require the prosecution to serve a ‘brief of evidence’ upon the defence; in other words, to hand over materials upon which they rely.
At the hearing, Ms Salisbury’s lawyer told the court that the matter was ready to proceed, and that a defence expert was present.
At this point, the prosecutor advised the court that notice had not been given by the defence about an expert being present. Ms Salisbury’s lawyer submitted that the defence has no obligation to serve notice of witnesses in local court cases, unlike in the district court.
The magistrate then refused to hear the case, ordering that it be adjourned for the expert’s report to be served upon the prosecution.
The defence lawyer then said:
“There’s no obligation for us to [serve a report], and we don’t propose to do so”.
The magistrate replied:
“This Court controls its own proceedings. This Court is entitled to make directions for the control of the proceedings before it. I can’t recall the name of the case, but there’s a Supreme Court decision that indicates that the Court has control of its own proceedings, and can make its own directions.”
The magistrate was essentially saying he can do whatever he wants when it comes to hearing a case, regardless of any legislative provisions – specifically, that he can order the defence to serve materials in spite of the fact that there is no requirement for the prosecution to serve its materials.
Supreme Court Appeal
An appeal was filed in the Supreme Court on NSW on grounds that the magistrate made an error by:
- Ordering the hearing to be adjourned, and
- Ordering service of the defence expert’s report.
After going through the Local Court Rules (something which the magistrate neglected to do), Justice Bellew found on 10th August 2016 that:
“… the Magistrate did not have the power to make an order requiring [Ms Salisbury] to serve expert evidence in advance of the hearing”.
His Honour allowed the appeal, set aside Magistrate’s Corry’s orders and remitted the case to the local court for determination according to law.
Nature of the Criminal Justice System
In the face of a plethora of laws which remove the requirement for the prosecution to serve evidence, which get rid of the right to obtain relevant materials and, in some cases, which reverse the burden of proof, Justice Bellew reminds us that:
“Our criminal justice system is accusatory in nature. It obliges the Crown to make out a case before any response is forthcoming from the accused”.
“Fundamental to such system is the principle that the Crown bears the onus of proving the guilt of the accused. That principle gives rise to an accused person having a number of rights”.
He cites Justice Brennan in the High Court case of Maiden v R (1991), who says:
“… the Crown has no right to notice of the issues which an accused is proposing actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exemptions. The Crown must present the whole of its case foreseeing, as far as it reasonably can, any ‘defence’ which an accused might raise…”
“The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown’s case or some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice”.
Perhaps our state and federal governments should take notice of these remarks before enacting legislation which creates a situation where those suspected of crimes are required to prove their innocence – often without notice of the prosecution evidence – rather than the prosecution having to prove guilt, as it should be.