I. TERMS OF REFERENCE

1.1 On 17 January 1982, the Attorney General of New South Wales the Hon F.J. Walker, Q.C., M.P., made the following reference to the Commission:

“To inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings and matters incidental thereto, and in particular, without affecting the generality of the foregoing, to consider -

(a) the means of instituting criminal proceedings;

(b) the role and conduct of committal proceedings;

(c) pre-trial procedures in criminal proceedings;

(d) trial procedures in matters dealt with summarily or on indictment;

(e) practices and procedures relating to juries in criminal proceedings;

(f) procedures followed in the sentencing of convicted persons;

(g) appeals in criminal proceedings;

(h) the classification of criminal offences;

(i) the desirability and feasibility of codifying the law relating to criminal procedure.” ¹

1.2 When making the reference, the Attorney General said.

“I note that the above reference will not affect the functions or responsibilities of the Criminal Law Review Division in relation to reform of the criminal law. Further, I note that the above reference will not prevent the Criminal Law Review Division from examining aspects of the law relating to criminal procedure, where this is considered appropriate.”

II. THE CRIMINAL LAW REVIEW DIVISION

1.3 The Criminal Law Review Division is part of the Department of the Attorney General and of Justice. It was established in 1976 and has the task of continuously reviewing the criminal law of this State. Much of the work of the Division is concerned, however, with substantive law, not procedural law. For this reason. following discussions in late 1981 between the Director of the Division, Dr. G.D. Woods, Q.C., and the Chairman of the Commission, the Attorney General agreed that the Commission should undertake work in the field of criminal procedure. In this work the Commission has the co-operation of the Division, and Dr. Woods is one of our Principal Consultants. Inevitably, there will be some overlap between the work of the Division and the Commission. In chapter 10 of this paper, we consider, for example, the general topic of committals for trial. Aspects of the same topic are also being considered by the Division. Co-operation between us will ensure, however, that there is no wasteful duplication.

III. SUBSTANTIVE LAW AND PROCEDURAL LAW

1.4 In theory, the distinction drawn between Substantive law and procedural law is reasonably clear. Broadly speaking, according to Jowitt’s Dictionary of English Law , ² the substantive law is the law which is administered by the courts, and procedural law (or adjective law as it is sometimes called) governs the practice and procedure of the courts. ³ In practice, the two are often closely interwoven, and it is sometimes difficult to tell where their respective boundaries begin and end. It is inevitable that our terms of reference will take us into some areas of the criminal law which are partly substantive and partly procedural.

1.5 In the context of the criminal justice system procedural law has a meaning wider than that usually given to it in other contexts. It is commonly understood to include procedures other than those followed by the criminal courts themselves in the course of trials or other formal proceedings. it extends both to rules governing police investigations and to rules governing the implementation of sentencing decisions. ⁴ The system is set in motion by the investigation of a suspect and, if he or she is charged and convicted, continues to operate until the sentencing order of a court is satisfied. Rules of criminal procedure apply at all stages of the process.

IV. THE NEED FOR THIS REFERENCE

A. A General Issue

1.6 Criminal Justice systems, it is argued, need to balance competing demands. There are, for example, demands for effective law enforcement and demands for the maintenance of individual rights and freedoms. Both need to be respected, and a proper balance between them must be struck. Any interference with that balance, brought about by changes in procedural laws, has the potential to diminish either the effectiveness of outlaw enforcement agencies or the protection accorded to the liberty of the individual.

1.7 Today, both the legislature and the courts are coming under increasing public criticism for failure to provide quicker, cheaper and more efficient systems of criminal justice. We believe that our reference on criminal procedure is timely. In early 1981, over 350 legal practitioners, legal academics, judges, magistrates and others attended a national conference in Sydney on the subject ... The Criminal Injustice System”. This Conference led to the publication in 1982, under the same title, of a collection of essays on aspects of criminal justice in Australia. ⁵ In June, 1982, the Institute of Criminology within the University of Sydney conducted a seminar on the subject "The Criminal Trial on Trial”. Both discussions were concerned largely with the impact of the existing rules of procedure upon the criminal justice system. Many speakers were highly critical of those rules, and spoke of a need for substantial change.

1.8 There is, of course, no general agreement as to what should be done. Even where in adequacies are acknowledged, the remedies proposed vary with the perspectives of the critic. In turn, these perspectives reflect different ideologies. A civil libertarian for example, may have views different from those of a law enforcement agency on the desirability of a pre-trial procedure designed to discover details of a defendant's case. These factors, and the need to maintain proper balances of the kind to which we have referred, will need to be borne in mind throughout the course of our work on this reference.

1.9 In addition there are many acknowledged problems which confront the criminal justice system for which existing procedural rules appear to provide inadequate solutions. Also, there are many antiquated technical rules the continued existence of which seems to be at odds with a current view that, as far as possible, the law should avoid technicalities and an emphasis on matters of form.

B. Some Particular Issues

1.10 Is our criminal courts system coping adequately with its work load of serious criminal cases? It now takes an average of some 14 or 15 months from committal to trial in the District Court where an accused person is on bail and some six months where he or she is in custody. ⁶ There can be up to six months delay before committal for trial because of delays in Courts of Petty Sessions. It may take about two months merely to obtain a transcript of the evidence given in committal proceedings. Individual committal proceedings can occupy the time of a Magistrate and a court for several months, even years.

1.11 Can our existing procedures cope with “white collar” and computer crime? ⁷ So far as white collar crime is concerned great difficulties frequently arise with regard to the proof of complex commercial transactions and documents. Rules of procedure (and rules of evidence) designed for other purposes are, according to some critics, proving singularly inappropriate for this class of case. The procedural problems associated with proof of computer crime may not yet be sufficiently identified to enable a comprehensive solution to be proposed. Indeed, the solution to the problem of detecting and punishing computer crime may not lie in changed procedural rules, but in more sophisticated techniques of investigation. Nevertheless, new kinds of criminal behaviour raise procedural issues that warrant close examination.

1.12 In many of the trials involving complex commercial transactions and documents, there may not be real dispute about whether the transactions occurred. Yet the outcome of a trial can sometimes depend on whether the prosecution can prove the existence of the transactions within the constraints of the established rules of evidence and procedure. Even if the outcome of the trial is not affected, the need to prove these transactions often severely taxes the human and physical resources of the criminal courts at the expense of the smooth administration of the criminal justice system generally. And it is not only the prosecution and the court system which may suffer because of the length and complexity of criminal trials. The accused may suffer unless he or she understands the precise allegations that are to be met and may experience financial and emotional strain if proceedings are protracted.

1.13 Is the law relating to criminal procedure readily accessible? For the most part, it is known intimately only by the few people who have been exposed to its mysteries over a period of years. Much of it is not prescribed by statute. That which is so prescribed is scattered through various Acts. Indeed, much of it is lore, not law. Even the language of criminal procedure is a language understood by few, and the terms used vary from court to court. We pose the question: “Should the law relating to criminal procedure be stated in the simplest and most readily understood form consistent with the requirements of clarity and certainty?” We suggest that respect for the law is dependent, in part at least, upon an understanding of it, and that in any event those who are presumed to know it are entitled to have it expressed in terms they can understand.

1.14 In New South Wales, much of our criminal procedure accords with the rules of the common law of England, from which of course, it is derived. Over a period of many years now, the work of law reform bodies and the legislatures in England, and in most common law jurisdictions, has led to a reconsideration of those rules and the enactment of a number of statutes varying them. An important question is whether the time has not arrived at which similar action should be considered here.

1.15 Even in those areas in which there is statutory provision there are a number of demonstrable and generally accepted shortcomings which require attention These will be considered in some detail as each particular matter is dealt with For the present by way of illustration reference is made to Sections 41(6) and 51A of the Justices Act, 1902, which pose problems in the contexts of committals for trial and sentence respectively. ⁸ As to committals for sentence, the problem stems from the fact that when a plea of guilty before a lower court is changed to a plea of not guilty before a higher court, the proceedings have then to be remitted to the lower court.

1.16 Are juries adequately assisted? One particular matter which is frequently referred to when criminal law and procedure are under consideration is the increasing complexity of the law which juries are called upon to apply, and the adequacy of the assistance which they receive. Individual Judges have responded to this situation in different ways, and a question to be determined may be whether there should be rules regulating and standardising this aspect of procedure in jury trials. ⁹

1.17 In general, the readers of this Paper will be in one of two groups. The first group will comprise people who are experts in criminal procedure or who know a great deal about it. The second group will comprise people who are interested in the subject but who know little of its details. Chapters 2, 3, and 4 are written for people in the second group. People in the first group may prefer to turn immediately to chapter 5.

FOOTNOTES

1. Some of the expressions used in the terms of reference illustrate the point we make in para.1.13, namely, that the language of criminal procedure is a language understood by few. in ch2, we explain, among other expressions, the expressions “committal proceedings” (para.2.6) and “matters dealt with summarily or on indictment” (paras 2.3-2.5).

2. Jowitt’s Dictionary of English Law (ed. J. Burke) (Sweet and Maxwell, London, 2nd ed. 1977) p.48 (“adjective law”).

3. See, for example, s.18 of the Crimes Act, 1900 (“Who so ever commits the crime of murder shall be liable...”) and for example, s.36(4) and (5) of the Justices Act, 1902 (“How evidence is to be taken”):

“(4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed.

(5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness. as the justice or justices may direct, and be signed by him and by thejustice or justices.”

4. See, for example, the Royal Commission on Criminal Procedure, Report (HMSO, Cmnd. 8092, 1981) (referred to in this Issues Paper as the “Philips Report”).

5. J. Basfen, M. Richardson, C. Ronalds and G. Zdenkowski (eds.), The Criminal Injustice System (Australian Legal Workers Group and Legal Service Bulletin, Sydney, 1982).

6. Regina v. Ghazi Zaineddine and Hassan Chamas, 6 May 1982, District Court, Martin D.C.J.

7. See, generally, G. Geis and R. Meier, White Collar Crime (The Free Press, New York, rev. ed. 1977); Department of Attorney General and of Justice, NSW Criminal Law Review Division, Report on Summary Prosecution in the Supreme Court of Corporate and “White Collar” Offences of an Economic Nature (NSW Govt Printer, 1978).

8. As to s.41(6), see paras 10.61 and 10.65. As to s.51A, see paras 10.40-10.43 and 10.72-10.73.

9. We note, for example, following the initiative of Sir Laurence Street, Chief Justice of the Supreme Court of New South Wales, that a committee has recently been established in New South Wales to investigate the possibility of having standard simplified written directions for use in summings-up to juries in criminal trials.