Alister Henskens portrait
Alister Henskens portrait

Criminal Procedure Amendment (Pre-Trial Disclosure) Bill 2018


Debate resumed from 15 August 2018.

Mr ALISTER HENSKENS (Ku-ring-gai) (16:22:49): I am very happy to speak in support of the Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2018. I congratulate the Attorney General for introducing reforms in this House that will simultaneously ensure the smooth running of criminal trials in the State's higher courts through effective and efficient pre-trial disclosures, the reduction of delays in the criminal justice process and the promotion of fairness to both the prosecution and the accused. But most importantly this bill recognises the human element of criminal trials and the stress on victims of crime and will decrease the stress upon them as a consequence of the criminal trial process. The bill amends the Criminal Procedure Act 1986 to include four additional matters that the defence must disclose prior to commencement of a criminal trial in the District Courts or the Supreme Court. It also clarifies two obligations in relation to the prosecution.

The background to the production of this bill is that statutory pre-trial disclosure obligations were first introduced in New South Wales in 2001 following a report from the Law Reform Commission, "The Right to Silence", and additional obligations were added in 2009 and 2013, including by requiring disclosure of much of the prosecution's case. Last year the Department of Justice undertook a statutory review of those 2013 amendments to determine whether they had been effective in reducing delays and promoting efficient management of trials.

The review found, as the Attorney General has already informed the House, that the pre-trial disclosure scheme had been largely effective at achieving those aims. It recommended expanding the scheme in specific and targeted ways, which this bill delivers upon. It also complements the other actions by the Government to improve court efficiency and to reduce delays since 2015, including the appointment of many judges, prosecutors and public defenders to cut through backlogs and implementing early-resolution measures and case management initiatives such as early guilty pleas, case conferencing and a specialist rolling court list. Those measures have all been highly successful. In January of this year data from the Bureau of Crime Statistics and Research revealed rolling list cases are taking 28 per cent less time to progress to finalisation than they were three years ago.

I will highlight some of the important measures. The important matter to focus on initially is the position with regard to victims of crime. By facilitating the resolution of potential interruptions earlier in the trial process, the bill will help more trials proceed on the listed start day, and more victims to pass through the justice system without delay. This is important because trials can be very stressful for victims. One can only imagine how difficult it is giving evidence, recounting traumatic experiences and facing offenders in court, even for the bravest of victims. Minimising the duration of trials by removing potential causes for delay will therefore reduce the period of time that victims are placed in this state of heightened distress.

There is one provision contained in the bill that will be of particular benefit to victims and that is the proposed new section 143 (1) (j) requiring the defence to give notice as to whether they will dispute the form of the indictment or seek separate trials where there are multiple charges against an accused. This issue is particularly relevant for serious sexual and child sexual assault matters where there are multiple charges or complainants. In these cases the defence may seek to have the matter split into separate trials. After all, it is in the accused person's interest to have each count of an indictment heard separately before different juries.

Applications for separate trials are often made on the first day of the trial. Not only does it take time for the application to be heard by a judge but if the application is granted it results in the original matter being vacated and listed at a later time, often months or even years later. This causes great inconvenience and distress to the victims, who may have already waited a long time to get justice and have prepared themselves to give evidence. Some victims may also not understand why they are no longer to take part in the case and why the case has to start again, potentially with a different legal team.

Making mandatory for the defence to disclose its intentions to seek separate trials, as this bill does, will reduce instances where victims of serious crimes arrive at court only to be turned away. If the court grants the application for separate trials, the prosecution will have time to notify witnesses and explain why the court has made its decision. This is far more empathetic than telling victims outside the Downing Centre on a busy Monday that their time for justice will have to wait. In these ways, the measures proposed by the bill are in the best interests of the victims. But that is not the only matter that is introduced.

The other matters in new section 143 include the requirement in new section 143 (l) (i) before trial that the defence give notice whether there will be any challenge to the continuity of custody. As you would know, Mr Deputy Speaker, the matter of the chain of custody of evidence is one that can be challenged and often is challenged by defendants. It can involve a great deal of very formal evidence to prove. Requiring a defence to disclose their intention to challenge that evidence in advance of the trial will allow police resources to be properly allocated towards the matters which are in dispute and not to anticipate every matter which could be in dispute in relation to those matters.

New section 143 (1) (j) requires notice of any challenge to the form of the indictment, severability of the charges or separate trials, as I have already said. New section 143 (1) (h) requires notification in advance of the trial of any expert witness proposed to be called and a copy of that report. This is a procedure which has longstanding antecedents in civil trials. Having regard to the requirements of the case of Makita v Sprowles (2001) 52 NSWLR 705, an expert report requires that firstly the expert witness be properly qualified to give the opinions that they propose to give; secondly, that they must give reasons to explain the nature of their expert opinions; and thirdly, they must clearly specify the factual assumptions or matters on which the expert opinion is based.

Not everyone can give opinion evidence. It is an exceptional case for a witness to be able to give that evidence. Under the opinion rule, generally witnesses cannot give evidence of opinion. It is highly desirable—as I have already said, it has been the case in civil trials for many years—for an expert report to be served in advance of the trial so that the prosecution can assess the expertise of the expert witness, assess the facts upon which the expert opinion is said to be based and have an exposure to the reasons for the expert opinion.

The other matters, which are purely matters of common sense, relate to new section 143 (1) (k), where if a request is to be made that the prosecution adduce edited transcripts or recordings at the trial, then that be done in advance to allow the police and the Director of Public Prosecutions to dedicate appropriate resources. It is not just an economic matter that trials proceed fairly, although it certainly is in the public interest to do so, but these reforms heighten the fairness and the quality of justice in our State. I commend the bill to the House.