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Barry Lane
19 September, 2006  
"Unintelligible conundrums" besiege criminal justice

The rate at which criminal convictions are being overturned in Victoria is skyrocketing. Barry finds a secret memo which advances various cures – some of which are a bit fanciful

A memo has just fallen off the back of a truck outside my magnificent suburban, Tudor-period, hacienda-style residence.

The document seeks to address the causes of the spiraling rate of criminal retrials ordered by the Court of Appeal in Victoria.

imageThe issue was raised publicly by the president of the court, Justice Chris Maxwell (seen here) when launching the Criminal Defence Lawyers Association in September last year.

Figures in the memo show that in calendar year 2004 of 107 convictions in the County and Supreme Courts, there were 16 retrials ordered – that’s a rate of 15 percent. The respective rates were 11 percent for the County and 31 percent for the Supreme.

In calendar 2005 all figures went “north”, as they say in the broking game. Of 136 convictions (County 103 and Supreme 33) there were 30 retrials ordered (County 18 and Supreme 12) and the ratios edged up (County from 11 percent to 17 percent and Supreme from 31 percent to 36 percent).

Figures for calendar 2006 are a bit sketchy at this stage, but it looks like the trend is continuing especially in the County Court where of 29 convictions recorded until the end of March, 13 have been set aside and new trials ordered. That’s a retrial rate of 44 percent!

The author of the memo, a respected senior judge, observes:

“To a criminal trial defence barrister the announcement that a trial in which he or she was engaged has, on appeal, led to an order for a retrial demonstrates the successful working of the criminal trial system. To the trial judge, and many others, such an outcome represents a failure of the system.”

The author, whose identity I’m obliged to keep under wraps, believes that there are various related factors which contribute to the number of successful appeals and that the same factors might also play a role in inappropriate acquittals at trial due to the incorrect exclusion of admissible evidence.

Those factors include ignorance of the intricacies of the criminal law by trial judges (which leads to incorrect trial rulings and incorrect directions to juries in charges), pre-trial procedural problems, certain inadequacies in the provision of legal aid and lack of specialist training and support for judges.

The memo says that there are now two distinct chapters of the criminal bar beavering away: trial lawyers, who rarely conduct appeals; and appeal lawyers who rarely conduct trials.

One virtue of this division of labour is that it permits a division of responsibility, or perhaps irresponsibility.

For instance, the Appeal Court can’t say to an appellant’s counsel: “why didn’t you alert the trial judge to the problem which you are now asserting resulted in the wrongful conviction of the appellant?” The obvious response would be: “I wasn’t there!”.

This wasn’t always so, but it now appears to be the norm.

The judicially crafted memo makes some useful suggestions for reducing avoidable error, including giving trial judges more assistance, education and time to properly conduct criminal trials.

* * *

It would also be of assistance to trial judges if there was no repetition of decisions falling from VicAppeals like R v Kear (1997) 2 VR 555.

In Kear’s case, the court (Tadgell, Ormiston and Phillips) by majority (Tadgell dissenting) visited an “unintelligible conundrum” upon the jury as well as the trial judge.

The accused, Kear, was charged with assaulting one Depke with a single blow to the face. Kear’s defence was a straight denial. He contended that Depke had been injured when another person present, a Ms McKenzie, threw a flower pot at Kear, who ducked, and the projectile struck Depke.

Both Depke and McKenzie gave evidence supporting the prosecution case of assault by Kear, including a denial that McKenzie threw a flower pot at all. Another witness gave evidence supporting Kear’s story of the flying flower pot and the denial of the assault.

Before the County Court judge charged the jury, the prosecutor raised the question of self-defence with the judge. Following discussion between counsel and the judge, it was left on the basis that no direction on self-defence would be given. In accordance with the way the accused had conducted his defence, it was not surprising that defence counsel sought no such direction and acquiesced in the judge’s decision not to give one.

If the trial judge had given such a direction it would have amounted to the judge telling the jury that the accused’s case was:

“I did not do it – someone else did – but, if I did do it, I believed that it was necessary to do it in self-defence” (as articulated by Tadgell JA).

Tadgell went on to say that to:

“insist … that a direction on (self-defence) must be given to the jury where the accused has not only not raised the issue of self-defence (which is itself of no moment) but has also denied doing the physical act involved in the offence charged, is to require them to ponder an unintelligible conundrum.”

That analysis did not, however, find favour with Ormiston and Phillips and a new trial was ordered because they thought that as there was some evidence of self-defence, albeit so far out in the ether that it wouldn’t raise a blip on the Parkes’ radiotelescope, the trial judge should have directed the jury on it.

* * *

imageWhile these various “cures” are on the table, we may as well include one identified by leading criminal silk Phil Dunn (seen here) in an interview on the ABC.

Phil waxed lyrical about the benefits of coming up with something he called a “case concept” for a trial. It was an absolute must, said Phil.

I agree. I’m so taken with the idea that I think it should be mandatory for all defence briefs to draft a “case concept” and share it with all those in court: prosecutor, judge and jury on the first day of the trial so that all the active players in the trial have some notion about what the “defence case” actually is before all the evidence is heard and defence counsel makes a closing address.

But, even with a “case concept” it seems to me that there is still one gaping hole in the suggested cures, and that is the adversarial nature of the trial itself.

As the learned author of the memo observes, an order for a retrial is going to be received like manna from heaven by the defence because it gives an accused’s lawyers another opportunity to achieve what they failed to do initially, i.e. secure an acquittal.

It’s obvious, but sometimes needs to be said, that the defence team is not paid to facilitate a conviction – anything but. Criminal trials, and especially those involving high profile accused, are “take no prisoners” (so to speak) battles and anyone who thinks otherwise is a bit naive.

So the notion of defence counsel “assisting” the judge to properly conduct the trial by avoiding error, which might result in an acquittal or a successful appeal, is really a bit of a joke.

imageIndeed, in a recent address in relation to civil proceedings, but I think the point holds equally for criminal proceedings, Chief Justice Murray Gleeson (pic) said:

“In most cases, to think that the judge, the parties and their lawyers are all working towards a common objective would be naive. Provided their objections (objectives?) are not unlawful, litigants are entitled to pursue their individual interests. Judges have a certain capacity to control the pace and direction, and hence the expense, of litigation, but it is far from complete.”

And as Justice Ron Sackville lamented after receiving 4,500 pages of written submissions from the parties in the C7 epic:

“There has been little attempt to help the court order the vast mass of material because the parties, generally speaking, have decided to follow their own paths rather than accommodate the approach suggested by the court.”

To expect otherwise, with all due respect to the long-suffering judge, is really Alice in Wonderland stuff.


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