Prominent barristers last week lashed out at systemic delays, branding them “disgraceful”, and railing against the court’s continued practice of over-listing cases for trial.
Speaking to InDaily on the fracas, Chief Justice Chris Kourakis suggested criminal barristers should be better remunerated when their cases go to trial, further suggesting the current rates paid by the Legal Services Commission made it difficult to attract and retain top level talent to the field.
“The criminal bar, I’m sure, is genuinely concerned with the difficulty (over-listing) causes their clients, and for witnesses, but they have an added problem – most criminal cases are funded by the Legal Services Commission, and that doesn’t pay any substantial fee if a case isn’t reached,” Kourakis said.
“And that, no doubt, is part of the reason – quite rightly – for their concern.”
He said there was a “strong case for increasing the rates the Legal Services Commission pay when matters go to trial”.
“If their rates were more realistic, the financial pressure of a trial not being reached wouldn’t be as great… but importantly it would encourage the most experienced criminal barristers to stay in that field,” he said.
“If the skill and experience level is higher, then the early resolution rate would improve and trials would be shorter… Retaining good counsel in criminal areas is difficult because of the legal aid rates.”
This month Bar Association president Andrew Harris wrote to his members, pondering “if some thought might be spared for criminal barristers at the private bar who, by and large, do not get paid when their cases are not reached”.
“I have heard it said that … if criminal barristers are unable to make a living because of not getting paid for unreached trials then they should perhaps consider another area in which to practice,” he noted, arguing instead that they would have been paid if the court had been “able to accommodate them”.
But Kourakis today ruled out abolishing the practice of over-listing cases, arguing “the fundamental problem is that many criminal cases resolve on the day they’re set down for trial”.
“The district court – and that’s the court where the problem is acute – could list one trial per judge, and in that way we could be sure every trial would be reached,” he said.
“But many of those judges would end up not hearing a case, whether because at the last minute the accused pleaded guilty or the DPP withdrew the charges… so we’d have wasted the judge’s time but, worse, the list would continue to grow and the time between listing matter for trial and the trial proceeding would increase.”
Kourakis maintains the first step would be to ensure the District Court has “its full complement of judges”.
The Government last week appointed Sophie David SC to fill a long-standing vacancy, which Kourakis says leaves only one existing vacancy to be filled. But in reality, he argues, the court is “a further two down (because) we lost two judges about three years ago”.
“At the very least the existing position should be filled,” he said.
Beyond that, “it’s a matter of the DPP, the Legal Services Commission and the profession generally looking at what they can do to resolve matters at an earlier stage”.
“They are the two critical things that will most quickly bring results,” he said, noting recent legislative changes to enable substantial sentencing reductions for early guilty pleas have “hopefully” seen some cases progress more quickly.
The Weatherill Government, which this year abandoned plans for a new courts precinct, expects to detail “substantial reforming legislation” in the first half of 2016. Attorney-General John Rau told a July estimates hearing he was wrestling with “whether the existing configuration of the three tiers of the court structure in South Australia is the best configuration”.
Kourakis said he would be “surprised if (Rau) was looking at the abolition of the District Court”, but conceded a long-term option could be to combine the roles of the district and magistrates into a single trial court.
“There are reasons to think that would lead to efficiencies,” he said.
“The other alternative is to turn the District Court into a division of the Supreme Court (but) I see very little efficiency in doing that…
“(But) both of them are really long-term questions that would require a lot of study and work… they’re not likely to be an answer to the immediate problems we face.”
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