After a series of self-inflicted injuries, the judgment of the police and their commitment to a fair justice system are called into question.
Jason Roberts, who in 2002 was convicted of the 1998 murders of Sergeant Gary Silk and Senior Constable Rod Miller, won a retrial after finding police failed to disclose edits to statements and was eventually convicted. acquitted.
And dozens of convictions are now in question because disgraced criminal lawyer Nicola Gobbo was a police informant – a fact deliberately concealed from defense teams.
The Gobbo case led to a two-year royal commission and at the end of 2020 it published a 1,000-page final report with a series of recommendations.
Some of them, which are now coming into practice, are ticking time bombs about to explode.
If we drop the legalese, the Royal Commissioner, Justice Margaret McMurdo, found that the police failed to come clean and disclose all facts relevant to the defence. The commission said that since we no longer trust you to play by the rules, it will be up to others to decide what material ends up in court.
This means that the police must now provide the Director of Public Prosecutions with “any material obtained during an investigation which may be relevant to the prosecution or the defence”.
The police will have to provide a “disclosure certificate” to the court containing all relevant material and also provide reports on the credibility of prosecution witnesses.
Sounds easy, doesn’t it?
The fact is that the police will no longer make decisions about what is relevant, which means that all material will be included.
In the 1993 case of serial killer Paul Charles Denyer, who murdered three women in Frankston, the evidentiary record was in two volumes. From arrest to conviction, Denyer’s case lasted 141 days. Now an open and closed case where the offender confesses results in a 20-volume memoir and takes about four years to get to court.
Internal police projections suggest that with the new disclosure rules, a Denyer-style memoir will be at least 60 volumes. (Winston Churchill A History of the English-speaking peoples short at four volumes and the Encyclopaedia Britannica at 32.)
As part of Operation Reset, the police are restructuring to adapt to the new rules.
Each investigative team will need to collect everything from the body-worn camera recordings of the first officers on the scene to video of door knocking, CCTV, notes from the first detectives and every piece of paper generated by the homicide squad.
According to the recommendation of the Gobbo commission, the police will have to investigate “elements relevant to the credibility of a prosecution witness”.
This means that any police officer used as a witness can have their professional standards record reviewed to ensure they have never put their iron in a bunker, double-dipped at a fondue party or left the pub before. his cry (a heinous crime in police circles).
What about the victim – who is usually the prosecution’s star witness? All previous indiscretions will now be in the documents sent to court.
What about civilian witnesses? The police routinely ignore minor embarrassments for the bigger picture.
Once a man looking out of the bedroom window of a ladies’ apartment saw a killer running away from a park after shooting a gangster. He made a statement that did not mention that the woman whose intimate company he shared was someone other than his wife. Now this will be included. Would the man be ready to testify on this basis?
The Office of Public Prosecutions is neither equipped nor prepared to analyze terabytes of data, which means that all material will be filed in court and given to defense and prosecution attorneys.
Instead of being served a steak, they will be given the whole cow, a dull knife and told to carve.
There are more than 140 homicide cases listed for trial, with delays of up to four years. That could well increase to six years as both sides go through the material line by line.
Victims will have to wait up to six years for their day in court and for the defendants, denied bail for homicide, how are they going to get their lives back after all this time?
Then there is the review backlog of seized cell phones. The police have digital forensics officers to deal with seized phones and computers, but their workload has skyrocketed, and it has taken years to recover the material in some cases. This results in acquittals where the defense argues that there may be uncovered text messages that could exculpate the accused.
Police Association Secretary Wayne Gatt doesn’t mince words.
“Without adequate resources, these new laws risk handcuffing police, slowing prosecutions and ultimately delaying justice. It’s unfair to all parties. Tens of thousands of police hours will now be devoted to it. Something has to give.
A small case, prepared by a junior police officer for a magistrate’s hearing, can be up to 30 pages. It will now include four additional volumes of disclosure documents that will need to be verified by a sergeant. More police will spend more time behind a desk than driving a police van.
It’s part of a larger problem in the criminal justice system, clogged by a nagging obsession with keeping the traditional while piggybacking on costly new legal obligations that make the process more complex. As former Supreme Court Justice Paul Coghlan said, “If [the system] has not already sunk, it is sinking”.
Criminal lawyers spend years learning the law and mastering the system, and too often seem stubbornly opposed to change.
All businesses and professions have realized significant cost savings by adopting technology. Yet, in court, it’s much the same as it always has been. Witnesses are questioned and cross-examined in great detail, often on matters that do not seem at all important.
Businesses are rewarded for their efficiency, with bonuses offered for going over budget and on time. In law, it is the opposite. Lawyers are paid by the day, so the longer the case, the bigger the check.
A lawyer who appeared at Gobbo’s two-year royal commission joked that at first he had to cancel a fishing trip to a subtropical island. In the end, he could buy it.
The retrial of Jason Roberts heard from 91 witnesses. Experts were questioned on how they determined the rear windshield glass shards found at the crime scene came from a Hyundai Excel. Fascinating stuff, except both sides had already agreed that the Excel was the car being driven by Silk and Miller.
The longer the case, the harder it is for a jury to sift through the mass of testimony. A juror is paid $40 per day for the first six days and $80 per day thereafter. A senior attorney is paid up to $6,000 per day.
We inherited the British judicial system but refused to accept its reforms.
A decade ago, a UK parliamentary white paper concluded that there was a need ‘to ensure that when cases are contested, the issues in dispute are identified earlier and that only those witnesses whose evidence is to be challenged are required to be present”.
Complexity is not synonymous with clarity.
As Coghlan says, court delays stop early guilty pleas. “Why plead guilty? Everything can happen. The witnesses could die, or the world could end.
We need a unique sellout offering drastic sentence reductions for pleading guilty early and ruthless preliminary hearings to weed out non-essential evidence before a jury is selected.
The defense has the right to have access to all relevant material, but we have to redefine what is relevant. Let the juries judge the important and not get bogged down in the insignificant.
If we don’t change course, the system will surely collapse.