Chief Justice Chris Kourakis has renewed calls for new judicial appointments, arguing an existing vacancy should be filled “at the very least”, but emphasising the district court would still be “a further two down” because “we lost two judges about three years ago” who have never been replaced.
Rau last week appointed Sophie David SC to the district court bench “to give them additional assistance”, and made Sam Doyle SC a Justice of the Supreme Court.
But he told InDaily any further appointments were unlikely until the Government finalises its broad review of the criminal justice system, due in the first half of 2016.
“I’m withholding a substantial commitment of public resources to additional judges until I’m satisfied they’re required,” he said.
“Because I’m not satisfied that’s necessarily the answer to the problem.”
Asked if he was deliberately holding off on filling vacancies until the review was completed, he said: “The word ‘deliberately’ is the word I’ve got a problem with.”
“They (judges) are fixed commitments,” he said.
“Once you appoint one, they’re there until they’re 70 – and they’re very expensive pieces of infrastructure.
“I’m not concerned about appointing them if it’s necessary to appoint them to achieve a good system; what I’m not prepared to do is appoint them now, before we’ve had a chance to put those reforms into the public domain …and potentially get a far more efficient system with the personnel we have.”
In the past year, Rau has published a series of discussion papers on Transforming Criminal Justice, but calls for immediate action have grown in recent weeks, with lawyers slamming “disgraceful” trial delays. One even suggested that someone with a terminal illness might as well “go out and commit a crime, because you’re never going to be held to account”.
Rau concedes cases in the current system “chug along on a conveyer belt” but suggested additional funding without broader reform would be like treating an ailment with “sugar pills”.
“Legislative change is at best one third of it,” he said.
“The other two thirds of it involves cultural change across all the elements of the criminal justice system… It’s the way they see themselves, and the way they see their responsibility to the community.
“In simple summary, the solution to the problem lies in sorting the wheat from the chaff in the criminal justice area, and sooner rather than later.”
Which means “sorting out as soon as possible those [trials] that are definitely running from those that are likely to resolve”.
The seeds of Rau’s zeal were sown during that chaotic little period that in hindsight set so much of the Weatherill Government’s future trajectory, when Michael O’Brien resigned in the wake of a failed bid to install Labor powerbroker Don Farrell in his safe seat.
Rau assumed a suite of interim portfolios, briefly adding O’Brien’s police and corrections responsibilities to his justice empire, and gained a fresh appreciation of the intense connectivity between them all.
“It’s absurd to talk about change in any one sector,” he said.
“We need to have change in each sector, complementary to the other … a complete change in the criminal justice system is a very complex task.”
As of this month, there were 614 trials pending in the district court, but only 150 listed between July and year’s end.
Of the 438 listed from July to November this year, only 230 were disposed of; 71 were taken out while 104 had guilty pleas lodged either before or at trial.
In sorting the “wheat from the chaff”, Rau effectively means determining as early as possible which cases will not go to trial.
He has likened the contentious practice of over-listing cases for trial to airlines overselling flights.
“Half of them you know statistically are not going to go to trial – but you don’t know which ones,” he said.
Kourakis told InDaily this week that improving pay for criminal lawyers would help attract and retrain the best and brightest, who may then be able to fast-track cases more efficiently.
Rau agrees, to a point, that “it’s not a princely sum of money”, but argues the issue is more that most barristers get paid when a matter goes to trial.
“Without imputing any improper motives to any of these people – and I don’t do that – if you’re running any sort of business and you know you get paid to carry something out, you manage your business in a certain way to manage that sort of opportunity.
“At the moment all the KPIs and incentives are largely towards the first day of trial.”
He says he’s “not being critical of the Legal Services Commission”, which is “reforming very well”, but argues “we could move everything up to a much earlier point in time [such that] the lawyer representing an accused person gets more money to give them good advice early than for day one of trial”.
“That only works if all the information is available early, so they can properly advise their client,” he said.
“The police have to be able to provide a more detailed case early on to the DPP, who needs to be in a position to provide a comprehensive crown brief to the accused very early, and until we do that we can’t expect the accused to have a comprehensive response early.
“So what that means is we have to try and shift the effort and resources to the early provision of as much information as possible, so we can get early pleas of guilty if possible.”
Having previously been coy about major reforms to the district court structure, Rau now says: “I don’t see that any merger of the district and magistrates court has any merit whatsoever”.
He is more open to a combined district and supreme court – which Kourakis this week took umbrage at – with “a court of appeal sitting above”.
But he says “the anxiety associated” with a move of that magnitude “would distract from the main game”.
“Crime is the big issue, not civil,” he said.
Rau said all these issues had to be “worked through in a co-operative way” and “unfortunately things of that nature take time”.
“I’m convinced if I don’t try to consult with everybody, and whack them with something from nowhere, I’ll get zero co-operation,” he said.
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