Justice Delayed is Justice Denied: NSW Courts in Crisis

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It won’t be news to many criminal lawyers, but the New South Wales Law Reform Commission has warned that NSW courts are in “crisis.”

With growing case-loads, increasing delays and decreasing numbers of magistrates, judges and court staff, it’s clear that there is a significant amount of pressure is being placed upon the NSW court system. The most seriously affected are the District Courts, which have a backlog of almost 2,000 pending trials. This number has almost doubled since 2007.

This means that a person accused of an offence right now could expect a trial date in June 2016 – and with strict new bail laws, they may need to spend the wait behind bars.

In 2014, it took an average of 369 days just to set a trial date, with many defendants spending that time behind bars regardless of whether they are innocent or guilty.

“Justice Delayed is Justice Denied”.

There is a legal maxim that says, “Justice delayed is justice denied”.

This means that cases should be heard without unnecessary delay, as to do otherwise leads to great injustice for the accused person.

There are a range of reasons for this – it may be more difficult to secure evidence and/or keep testimony fresh in the minds of witnesses, and the court proceedings themselves can be enormously stressful and draining, both emotionally and financially, especially if the defendant is behind bars.

In Jago v the District Court of NSW and others [1989] HCA 46, the High Court of Australia heard that a trial was listed a whopping four years after the defendant was charged.

In that case, Justice Brennan made the following observations:

“Within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases … The furthest which a court can go is to regulate its procedures to avoid unnecessary delay, to do what can be done to achieve fairness in a trial and to prevent the abuse of its process.”

But perhaps “what can be done” by the District Court today – given its enormous case load and staff cuts – is a little different than back in 1989.

Why Are There More Delays?

In a report tabled in June, the Australian Bureau of Crime Statistics and Research, found three main causes for the rise in delays since 2007:

1. More people being arrested for serious offences,
2. A higher number of cases listed for trial are actually proceeding to trial, and
3. Trials are getting longer.

These three factors, combined with the fact there are less Judges on the District Court Bench (63 compared to 67 in 2007) has led the NSW Law Reform Commission to call for changes.

What Can be Done?

Clearly, increasing the amount of funding is one way to ease the strain on courts. More courtrooms for trials, and more judges and court staff would be a good start.

A recommendation by the NSW Law Reform Commission is to increase the number of guilty pleas by encouraging plea negotiations at an early stage in the proceedings. This could be achieved by making “case conferences” mandatory in all “indictable cases”.

Case conferences are where the prosecution and defence try to resolve the case by negotiating the charges. Indictable cases are those which can be referred to the District Court, rather than remaining in the Local Court.

However, this can in itself lead to injustice by making defendants feel that they must plead guilty or risk the possibility of a very long prison sentence, even if they are completely innocent.

A further recommendation is to keep a higher proportion of cases in the Local Court, rather than referring them to the District Court. However, this may simply shift the problem from one court to another.

The increasing delays were of concern to highly-respected former Chief Justice of the District Court Reg Blanch, who in 2013 said:

“Neither the court nor the criminal justice system as a whole can cope with an increase of criminal trials of such magnitude with the same degree of efficiency as has occurred in the past.”

Only time will tell whether the NSW Law Reform Commission’s recommendations will be adopted and, if so, whether they will lead to swifter “justice”.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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