19th century legal system must undergo major reform

By Greg Barns*

The revelation in early July 2019 that an individual has been waiting almost three years to have their case heard in the Supreme Court of Tasmania is shocking. The individual, like many others, is languishing in prison and of course they have the presumption of innocence.

This is not an isolated case. Many people have their lives placed on hold while the criminal justice system moves at a glacial place.

It is not uncommon for people to wait two or three years from the time they are charged with a criminal offence for their case to be heard in the Supreme Court. In Tasmania’s Magistrates Court, the waiting time is much shorter.

And even if you are not detained the stress of waiting for a criminal case to be resolved is extraordinarily stressful. Many individuals resort to pills, drugs and even self harm because the stress is too great to bear.

If individuals are acquitted at the end of the process, there is no compensation. If they do not get bail they lose their job. The financial and emotional stress on their children and loved ones is enormous.

Photo: Group portrait of Tasmanian judiciary, about 1900. Tas State Library; AUTAS001126072677

But the attitude of the community, reflected in how the criminal justice system works, is that you are expected to get on with your life.

There has to be major reform of a system which has changed little in a systemic sense since the 19th century.

If a black and white photo was taken now about 120 years later, during a criminal trial there would not be much difference.

Criminal system is broken

The criminal justice system, certainly in terms of its procedures, is broken.

And worse than that, in Tasmania and other parts of Australia it has been made worse by virtue of the obsession politicians have with increasing sentences and reducing the rights of the accused. This removes the incentive for people to plead guilty.

So what can be done? There are many cases in Tasmania’s Supreme Court which jurisdictions like Victoria and NSW deal with in the lower courts. Assaults, sexual offences, frauds and property crimes are too often found in the Supreme Court in Tasmania when they should be dealt with in the Magistrates Court.

The jurisdiction of the Magistrates Court should increase in criminal cases. Its name ought to be made relevant to the 21st century – Local Court is sensible – and its judges should have that title, not the current meaningless ‘Magistrate’.

There must also be a criminal procedure law put in place that forces Tasmania Police to gather the evidence and get it shipshape quickly. Too often cases come to court but there is delay because ‘the file is sent back for completion’. Why wasn’t it complete in the first place? But do not expect Tasmania Police to change their culture.

Cost penalties for delay

There should be strict timelines with cost penalties attaching if Tasmania Police does not perform with alacrity. After all, for alleged victims and the accused delay is cruel at times and frustrating always.

But more fundamentally, moving away from traditional criminal trials would help to reduce the pressure on the courts. Restorative Justice provides that solution.

This form of procedure is popular in the UK, Canada and New Zealand and with good reason – it works. It works when the victim consents, and the perpetrator agrees to participate. It is a much more holistic approach to offending.

Victims get to tell their story without the mediation of a formal court process. They hear offenders apologise directly and the offender has to listen to the victim explain the consequences of the crime. There is much less emphasis on incarceration.

Offenders have to engage in prolonged rehabilitation. Victims have a say in how the offender can begin to right the wrong. It is a much tougher choice than the regular court process, and it is much quicker and cheaper.

Restorative Justice offers opportunity

In historic sexual assault cases, a Restorative Justice path can lead to defendants pleading guilty when they might otherwise take their chances in a trial process.

A seven-year research project in the UK which examined Restorative Justice processes found that 85% of victims who took part were satisfied with the process. Reoffending was reduced by 14%; for every $1 spent on Restorative Justice around $4 is saved in the criminal justice system.

Across the US, a country which has squandered trillions of dollars on failed tough-on-crime projects, Restorative Justice is being utilised, particularly with young offenders. Most recently prosecutors in Washington DC, not known for their progressive views, have embraced Restorative Justice for first time offenders, even for very serious offences.

In a civilised society, justice is not delayed and therefore denied. The system is made to work so that people can be dealt with and move on with their lives.

To warehouse a person in prison for nearly three years before their case is heard is not the hallmark of a society that truly values humanity. It shows that we are cavalier about the rights of an accused, and for that matter, the emotional wellbeing of the person who alleges they have been wronged.

ENDS

Greg Barns is a barrister practicing in Hobart and Melbourne. This article appeared first in The Mercury, Hobart.

Illustration from: https://prosecutionproject.griffith.edu.au/other-resources/tasmanian-courts/

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