Dealing the hard reality of justice

April 7, 2005

Irksome though it seems to discount jail sentences in return for criminals admitting their crimes and saving everyone the cost and burden of a court trial, the rationale could hardly be less emotional. It is written in cold, hard arithmetic. Last year 2200 cases were committed for trial to the NSW District Court but only 600 got to trial. Why? First, prosecutors pulled the pin on 450 cases at or near the last minute because they believed the cases were weak. Second, last-minute pleas of guilty annulled the need for another 700 trials because the accused were convicted on their own admissions. There has been an escalation in the practice of late pleas, partly because wily defence lawyers are holding out for room to negotiate on charge and sentence.

The numbers tell the story. The criminal justice system is overburdened not by the demands of actual trials but by the enormous preparation required for phantom trials, that is, those that get to the starting gates but not out of them. An Attorney-General's Department executive, John Feneley, says, "This involves a vast waste of resources at the most expensive end of the process and also involves additional uncertainty and stress of victims, witnesses and often the accused".

From the rostering of judges to the empanelling of juries, from the co-ordination of the prosecution case to preparations for defence, the District Court system is not only congested but perilously distracted. Clearly, reform is needed. Given that pragmatism demanded inducements for the guilty to spare the system unnecessary court and preparation time, the Government has made a reasonable fist of nominating changes to take effect from July.

The result will be a criminal justice landscape closer in appearance to what many Australians have learnt from American television police and court dramas. Prosecutors will work earlier and more directly with investigating police, advising on the adequacy of evidence and appropriateness of charges. The defence should get clearer understanding of the prosecution case, facilitating realistic assessments of whether early guilty pleas are appropriate. Compulsory conferences will provide a formal structure for the existing practice of pre-committal negotiations on charges and admissions. And those defendants who plead guilty at committal stages - that is, before magistrates - will automatically receive the maximum 25 per cent discount on sentence, double the maximum discount that will be available for late guilty pleas. Discounting will be an option for sentencing judges in convictions punishable by life imprisonment.

It will not be a perfect system. None is. The guaranteed sentence discounts will fuel animosity, particularly in circumstances where police and prosecutors have watertight cases against wrongdoers. But reform cannot achieve anything like its full intention if certainty of outcome is not part of the deal. The system needs streamlining so that finite resources are focused on tough cases needing attention to detail and space for wise contemplation. Justice is about more than resources. But whilever resources are spread thinly across cases that end up not needing them, a little bit of surety spills from its scales.

A matter of honour

The Prime Minister, John Howard, has promised that the nine Australian Defence Force personnel killed in last Saturday's helicopter crash will be given "every appropriate honour". But are the appropriate honours available? Those killed or injured when the navy Sea King plunged into the ground on Nias Island were not on active service. Australian servicemen and women doing humanitarian work - in this case, helping the victims of last month's earthquake - cannot get the recognition that would go to those who die or are wounded in combat.

Yet Australia has a clear moral obligation to recognise fully the value of compassionate operations and the risks to those involved, even in peacetime. That is not to devalue awards to those on active service or to demean decorations for bravery in combat. It is to acknowledge that virtues such as courage, self-sacrifice and dedication are not restricted to the battlefield.

Australia has had no trouble recognising this when it comes to civilians. In 1999 it introduced the Humanitarian Overseas Service Medal, an individual award available to civilians who have served outside Australia on humanitarian operations "in hazardous circumstances" for at least 30 days. Yet there is no comparable award for service people, individually or as a group. Australia could not, for example, offer a unit citation to those on the HMAS Kanimbla. Those men and women may well appear to deserve just such recognition after backing up from service in tsunami-devastated Aceh to help on Nias, but unit citations - like many awards to individual service personnel - are not available except in wartime.

The role of the Australian Defence Force is growing broader, increasingly contributing to peacekeeping and relief operations in the region and beyond. Apart from its humanitarian dimensions, such service makes an important contribution to this nation's security. There is no better demonstration of this than the warmth of relations between Australia and Indonesia, partly reflecting the role of Australia's military in rescue operations and rebuilding on Aceh.

It is understandable there should be calls for a special medal to acknowledge the sacrifice of those who died in the crash of the Sea King. However, a broader response is needed. Australia should undertake a review of all awards to defence personnel to ensure they properly acknowledge the increasingly varied roles of Australia's servicemen and women, in peace as much as in war.