On 7 March 2015 the South Australian Attorney-General’s Department released a consultation paper titled Transforming Criminal Justice: Efficient Progression and Resolution of Major Indictable Matters. The paper proposes significant changes to the way in which serious criminal matters proceed through the courts.
Some of the proposed changes are long-overdue and are to be welcomed. Dewar Legal supports:
- The proposed requirement that serious allegations be reviewed by lawyers from the Office of the Director of Public Prosecutions (rather than by police prosecutors).
- The proposed system of pre-charge bail that will minimise the unnecessary court hearings that are currently required when a police investigation is incomplete at the time of charge.
- The proposed streamlined system of court dates which will see matters progress through the courts with fewer hearings.
What we cannot support – and indeed what we are very concerned about – are proposed changes that cannot be characterised simply as procedural changes designed to achieve efficiency. The consultation paper contains proposals which will inevitably have a fundamental impact upon the rights of people accused of criminal offences. In our view, these proposals are serious overreach. For example:
- We object to the proposed requirement for defendant’s to file a form disclosing to the prosecution the nature of its case. This is a fundamental attack on the centuries-old right to silence. Defendants should not be required to assist the prosecution with the preparation of its case.
- Even more objectionable is the proposal that such forms be “binding” on a defendant and that they not be able to depart from or alter a defence disclosed at an early stage of the proceedings. There should be no limits whatsoever on a defendant’s right to present his or her preferred defence at trial. To limit the right of a defendant to present a defence to a serious criminal charge based on the contents of a form (which may well depend on the skill and ability of the person completing it), is to invite serious miscarriages of justice.
- We object to the proposal to limit the right of defendants to file subpoenas in order to obtain relevant documents or to compel a witness to give evidence. The prosecution has the far greater resources of the state at its disposal – such as police officers with the virtually unfettered right to use search warrants (which in South Australia do not have to be approved by a judge) to obtain evidence to assist the prosecution case. Any proposal which limits the ability of defendants to mount a defence is highly objectionable.
Dewar Legal will be monitoring developments in this area closely and preparing a submission to the Attorney-General’s Department.
If you need a criminal lawyer in South Australia, please feel free to contact us by clicking here or by phoning (08) 8311 3964 to arrange a free consultation.