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Tulkinghorn
20 May, 2009  
Criminal law and the Baroque

One criminal trial efficiency report bombed out, so let’s have another. Maybe NSW should subcontract Queensland to run its criminal cases


imageCharles Dickens gave us the “Circumlocution Office” (Little Dorrit, Ch. 10):

“The Circumlocution Office was … the most important Department under Government. No public business of any kind could possibly be done at any time without the acquiescence of the Circumlocution Office. Its finger was in the largest public pie, and in the smallest public tart.”

The governing principle of the Circumlocution Office was “How Not To Do It”:

“Sometimes, parliamentary questions were asked … by demagogues so low and ignorant as to hold that the real recipe of government was, How To Do It. Then would … the right honourable gentleman … come down to that house with a slap upon the table … to tell that … the Circumlocution Office not only was blameless in this matter, but … never was so right as in this matter.”

In 2000 the NSW Chief Justice, the Hon. J.J. Spigelman AC, slapped the table (but without busting that all important finger) and had a little fun at the expense of people who seek more efficient courts:

“One characteristic of our administration of justice is its inefficiency … a much greater volume of cases could be handled by a specific number of judges if they could sit in camera, dispense with the presumption of innocence, not be constrained by obligations of procedural fairness or the need to provide a manifestly fair trial, act on the basis that no-one had any rights and not have to publish reasons for their decisions. Even greater ‘efficiency’ would be quickly apparent if judges had made up their minds before the cases began.”

He also said:

“A Mozart string quartet takes as long to perform in 2000 as it did in 1800. In short, in 200 years there has been no productivity improvement whatsoever.”

imageThat was scraping the bottom of the argumentational barrel and probably wrong.

No one other than Spiggsie claims to know at what speed Mozart string quartets were played in 1800.

If Spiggsie (here) was looking for a good musical metaphor he should have referred to “ornamentation”. According to Wikipedia:

“In music, ornaments are musical flourishes that are not necessary to carry the overall line of the melody (or harmony)... The amount of ornamentation in a piece of music can vary from quite extensive (it was often so in the Baroque period) to relatively little or even none.”

While modern musicians have reduced ornamentation, criminal lawyers and judges are in the Baroque period.

They have covered the criminal trial process with more ornamentation than a Christmas tree. From most angles, the underling tree (a truth ascertainment process) is difficult to spot.

In 2006, at the annual conference of the Australasian Institute of Judicial Administration, Spiggsie said:

“We have deliberately chosen inefficient ways of decision making in the law in order to protect rights and freedoms.”

Undaunted, last year the NSW Attorney General set up a Trial Efficiency Working Group, which reported recently.

imageSee also Attorney General Hatzistergos’ (pic) media statement on the new streamlined arrangements.

The group comprised nine lawyers and two judges.

Since lawyer incomes largely depend on time taken and since judicial salary levels are supported by judges drawing comparisons between their own salaries and the incomes of barristers, the members of the TEWG were being asked how their own incomes could best be reduced.

Hmmmm.

The group’s report admitted that …

“average trial lengths in NSW state-wide have been trending upwards over the last 10 years, increasing from approximately 4.6 days in 1996 to 7.25 days in 2007.”

That’s a 58 percent increase.

Perhaps Spiggsie would say the courts got 58 percent better at protecting rights and freedoms.

If asked to prove that he’s got another escape route (see that AIJA speech again):

“The most important aspects of the work of the courts are qualitative and cannot be measured.”

One measure of efficiency is “inputs per unit of output” as seen, for example, in figure 7.3 of the Productivity Commission’s Performance indicator framework for court administration.

For lawyers, the lower the input (work) for the greatest output ($) then the more efficient the system.

In the period June 1996 to June 1999 the number of criminal cases finalised in the higher courts in Australia went up 17.7 percent while barristerial income from criminal cases generally went up 41.3 percent.

It’s a very rough analysis (and the figures are getting old) but it’s the best that can be extracted from the Bureau of Stats. – see here and here.

The June 1996 to June 1999 increase in barrister income of 41.3 percent can be verified here.

The 58 percent decline in criminal trial efficiency identified in the TEWG report took place over ten years, between 1996-2007.

In 1999 a different Working Group On Criminal Trial Procedure (organised by the Standing Committee of Attorneys General) also issued an efficiency report.

Most of the 58 percent decline in efficiency in NSW occurred after the 1999 “efficiency” report.

Admittedly the WGOCTP report focussed on pre-trial procedures, but at pages 57ff it dealt with trial procedure as well.

If the 1999 SCAG efficiency recommendations were followed by lower efficiency in NSW, why would one assume that the TEWG recommendations will fare any better?

The dynamic that drives the criminal courts is simple – lawyer incomes must keep going up.

Since lawyers tend to be paid by time taken, then if incomes are under threat more (well financed, by legal aid if need be) people must plead not guilty and trials must take longer.

There must be more acquittals too in order to make it easier for lawyers to persuade defendants to plead not guilty.

A Productivity Commission report in 2002 (for the 1999/2000 year) revealed that of 100 defendants in Supreme Court criminal cases:

* In Qld 76 pleaded guilty, seven were adjudicated guilty, three were acquitted;

* In WA 69 pleaded guilty, 18 were adjudicated guilty, four were acquitted;

* In NSW 48 pleaded guilty, 29 were adjudicated guilty, 15 were acquitted;

* In Vic 47 pleaded guilty, 35 were adjudicated guilty, 13 were acquitted; and

* In SA, 36 pleaded guilty, 23 were adjudicated guilty, 24 were acquitted.

The figures were much the same for the preceding year.

Recently the Productivity Commission reported how much each “higher court” criminal case (in various states) actually cost the taxpayer in the 2007/2008 year, see Fig. 7.4.

Queensland romps in at around $6,000 per case, Tasmania and the ACT score about $10,000, WA and SA about $20,000, with Victoria and NSW over $25,000.

Efficiency is about how long trials spend chasing irrelevant rabbits down various holes and how many trials the lawyers (in various states) are foisting on the system.

If the NSW TEWG was really interested in promoting trial efficiency, it would have recommended sidelining Spiggsie’s NSW edifice and paying Queensland to run the NSW higher criminal courts, which would give the CJ more time to listen to Mozart.