A. Prosecution
The structure of the prosecuting authority varied in the countries, and even within the countries, I visited. For example, in Scotland, all prosecutions are under the control of the Crown Office, are conducted by members of the legal profession and are conducted independently of the police. In the United States, the bulk of prosecutions are dealt with by the District Attorney’s office. The District Attorney is an elected county official and he employs such number of assistant District Attorneys, who are qualified lawyers, as is appropriate. In some counties the position of District Attorney is part-time, in others he has a staff of hundreds. In New York, the District Attorney decides whether to prosecute and directs the operations of the police. A squad of police is attached to his office. The police charge people in respect of street crimes on arrest and they are brought into a Criminal Court. There is a pilot scheme financed by a Federal grant for these cases to be “screened” at the first hearing by an assistant District Attorney and an assistant is stationed at the court for this purpose. The assistant decides what charge will be laid.
Other prosecutions in the United States, including the bulk of those relating to corporate or securities crime, are instituted by State Attorneys General or by federal bodies. As District Attorneys have either no power to institute civil proceedings, or power only in very limited areas, semi criminal proceedings such as anti-trust suits are brought by these other bodies.
Without canvassing the relevant arguments, I consider that it is desirable that the carriage and, where practical, the institution of prosecutions should not be in the hands of the police or other investigatory bodies. This is the position in the two examples referred to above. In each case, the division works, and is regarded as important by those involved.
Although there is not necessarily a matter of principle involved, I consider that there are considerable practical advantages in consolidating the various existing prosecuting bodies into one. Particularly with the use of computers, the work-load can be more efficiently evaluated and the available personnel more efficiently deployed. This will be of greater importance with the advent of speedy trial. In addition, there can be more helpful liaison with the court both in relation to short term requirements and long term planning.
I recommend that the carriage of criminal prosecutions at the instance of the State of New South Wales be controlled by one body. It is obviously important that such a body be under the direction of an individual of considerable capacity and experience who will enjoy the confidence of the public and of organizations, such as the police and Corporate Affairs Commission, with whom the body will deal. Status commensurate with the requirements of the position should be accorded to the head of such an organization, who should be appointed either from within the organization or from without, for example, from the judiciary or the profession. The appointment should be for a limited period, say, five or seven years. An appropriate title would be Director of Public Prosecutions and the organization could be the Department of Public Prosecutions.
Without setting out in detail all the functions of such a department, they would include receiving information from investigatory bodies such as the police, deciding whether a prosecution lies and if so its form, instituting further inquiries, assembling evidence for and conducting trials, and conducting investigations at the instance of the Attorney General.
B. Committal Procedure
There are a number of sifting processes which operate between the commission of a crime and the trial of a person for that crime. The victim or a witness may or may not report the incident. The police may or may not investigate a complaint and, if they do, may or may not prosecute. At present in New South Wales, in respect of serious crime, a magistrate may or may not commit for trial. In the United States, there is the grand jury.
Even where a matter goes to trial, the jury may or may not convict and the judge has a discretion in relation to punishment.
Within more narrow limits, the sifting achieved by the committal procedure and the incidents of that procedure are under inquiry in a number of places. Some of these enquiries are referred to earlier in this report and the advantages and disadvantages of the procedure are briefly adverted to.52
I recommend that the present committal procedure operating in New South Wales be abolished and that the following procedure apply in cases where the defendant would stand trial before a jury:
(1) The defendant is served with particulars in writing of the charge.
(2) The defendant is supplied with:
(a) Any necessary further particulars of the charge which he has requested;
(b) Signed statements or depositions of all witnesses which the prosecution proposes to call at the trial;
(c) Copies or the opportunity to inspect, all documents or objects which the prosecution proposes to tender at the trial.
(3) The defendant may:
(a) plead guilty, in which case the matter comes before a judge;
(b) elect for summary trial where it is available;
(c) apply to the court in the same manner as provided by Section 347 of the Crimes Act 1961 (New Zealand);53
(d) apply to the Attorney General for a “no bill”, in respect of special circumstances, such as the lapse of time since the commission of the offence, the age and health of the defendant or subsequent changes in the law.
(4) A pre-trial hearing before a Master or magistrate at which there would be some resolution of the issues to be the subject of contest at the trial and at which the trial date is fixed. At this pre-trial hearing the defendant must give notice of such defences as require notice.
After the service of particulars of the charge, that is during stage 2, either the prosecution or the defendant may require a witness to come before a magistrate for examination on oath or to produce documents. The examination would be in closed court and in the absence of the opposing party. In the case of a witness whom the prosecution proposes to call at the trial, a copy of his deposition will be given to the defendant. Such examination will produce and record the deposition of a recalcitrant witness or one against whom the prosecution fears pressure may be directed. I do not propose, subject to the rules as to hostile witnesses, that the witness should be cross-examined by the party bringing him before the magistrate, but this may have to be adjusted in the light of experience. There seems no reason why such an examination should be open to the public and there are reasons why press publicity should be avoided.
There is, of course, no objection to the defence interviewing a prosecution witness with the consent of the witness.
The arguments in relation to discovery by the defence and rules requiring advance notice of particular defences are thoroughly canvassed in Part V of a Working Paper issued by the Canadian Law Reform Commission.54 To some extent any new rule in relation to these matters would involve an intrusion upon the substantive rights of the defendant.
Discovery could be sought from the defendant at various levels:
(a) All documents, statements et cetera in the defendant’s possession, as in civil discovery and as available to the prosecution in some places.
(b) All documents and the names of all witnesses intended to be tendered or called by the defence.
(c) Notice of specified defences, with necessary particulars.
(d) Production of records which the defendant is required by law to keep.
It seems to me that the relevant interests are adequately served if the defendant is invited, at the pre-trial hearing, to disclose any substantial defence, and the prosecution is entitled to comment at the trial on the failure to do so if such a defence is raised, and also if power is conferred upon the court to grant an adjournment in the case of surprise.
One of the matters dealt with at the pre-trial hearing will be which issues can be dealt with at the trial by way of admission and the admissions will be formally recorded. The admissions will be by the defence and the prosecution. It will be the duty of the defendant’s legal adviser to acquaint the defendant with the admissions that should be made.55 It is not intended that the defendant be denied the right to put the prosecution to proof of an issue, but rather that attention be directed to issues, or factual areas, upon which the prosecution will clearly succeed and in respect of which evidence will only be time-wasting. This is particularly likely to occur in prosecutions of white collar crime.
If the matter proceeds to trial, should the trial judge, before the hearing, see the statements and depositions? There are divided views. South African and English judges see the evidence obtained on the preliminary examination. Scottish judges do not. I understand the practice in New South Wales in relation to the depositions taken at the committal varies. If the judge does see this material, there should be a duty on the prosecution not to include material which is irrelevant and prejudicial. Although the judge does not decide the facts, if he has formed a mistaken view of them, his attitude can influence the course of the trial. This is particularly so where the judge sums up the facts to the jury. In the United States the judge normally does not sum up on the facts. On balance I feel the statements should be available to the trial judge.
C. White Collar Crime
There are two elements which are of much greater significance in the prosecution of white collar crime than in the prosecution of crime generally. They are the difficulties involved in assembling the evidence in admissible form and the higher standard of legal assistance available to the defendants.
The first step in assembling the evidence is the investigation of the crime to find out what actually took place. In the United States, a grand jury is often used as it can compel attendance and production of records. Special grand juries are empanelled for this purpose. In areas covered by the Companies Act, 1961, New South Wales relies in important cases on investigators appointed under Part VI A of that Act. There is a similar practice in the United Kingdom.56 The practice of appointing independent persons, often barristers, as investigators avoids criticism in relation to political interference. If, as I have recommended, a simple prosecuting body is set up under an independent Director, it may be appropriate for officers of that body, who would accumulate experience in the area, to be appointed.
By their very nature, such investigations do not determine the guilt or innocence of individuals. The investigations produce evidence upon which prosecutions can be launched. In my view it is clearly wrong for the results of such investigations to be made public.
The quality of the prosecution of white collar crime, as with other crime, will depend upon the motivation of, and the facilities available to, those charged with its prosecution. First, efforts must be made to ensure that the motivations and facilities are maintained at the highest practical level. This includes employing able and experienced staff who must be recompensed accordingly. Second because there must be some limits to the available resources, there must be a careful sifting of the cases which are pursued. There should be a demonstrable degree of moral turpitude in those cases.
The employment by defendants in white collar crime cases of more expensive legal representation not only puts the prosecution to proof of its case more severely but also, by the nature of things, complicates and prolongs the proceedings. This is more so in the United States with its system of pre-trial hearings. The Denver District Court has 18 judges of whom six sit in criminal work. One of these six is assigned, by arrangement between the Chief Justice and the District Attorney to sit in complex cases. Federal judges have individual calendars and accordingly must control the progress of such complex cases. I was told that the judge must overcome the obstruction of counsel in order to get the case on for trial. I was also told that a great deal of time is saved if the prosecution reveals its evidence to the defence at an early stage.
I recommend that complex criminal cases be allocated to a particular judge at an early stage and that that judge should be responsible for ensuring that the case comes to trial at the earliest possible date. If the procedure recommended57 comes into force, I suggest that the case be allocated to a judge at the first stage. The judge to whom the case is allocated would also be responsible for the fourth stage, that is, to limit the issues at the trial so far as possible.
Elsewhere, I suggest that there is a class of small civil claims which are more advantageously dealt with by the State by way of criminal or quasi criminal procedures. Consumer claim bodies are being set up and should be able to effect restitution as well as to seek punishment.
A major problem in the United States is the intrusion of organized crime into legitimate business with the consequent employment of violence, intimidation and corruption in the commercial area. With the exception of the matters raised before the Royal Commission into licensed clubs, so far as I am aware, Australia is not presently exposed to a problem of that nature but the consequences are of such magnitude that if signs do occur, it is clearly important to take all available steps to combat such intrusion. It is in this area that the acceptance by the community in general, and by the authorities in particular, of open criminal activity and of criminals, such as occurred during prohibition in the United States and has occurred in New South Wales in relation to gambling clubs, constitutes a very real danger.
I have referred58 to some of the steps being taken in the United States in this area. There are other steps, such as inducing members of trade associations to assist in the discovery of the criminal activity, which can be taken. One hopes that a situation requiring such steps does not arise. But, as Mr. Curran said, in effect, the condition of liberty is eternal vigilance.59
D. Small Crimes
There are an increasing number of offences, one hesitates to use the word “crimes”, which do not involve great villainy and do not require the full panoply of the legal process. As society becomes more complex, individuals are required to comply with rules which are technical and arbitrary. Enforcement of the rules involves use of a sanction. The sanction should not be more costly in its operation than the conduct subject to complaint. In other words, the traditional legal process is inappropriate for such matters. Certain undefended traffic offences have already been taken out of the court system and I suggest that there is scope for an increasing number of offences to be treated by a default process.
The United States District Court (Southern and Eastern Divisions of New York) Rule 25.2 provides that a person charged with a petty offence may post collateral, waive appearance and consent to forfeiture of the collateral. There is a scale of the collateral required for each offence. In Australia, failure to vote may be dealt with by the elector depositing a sum of money and agreeing to abide the ruling of the Commonwealth Electoral Officer which, I understand, results in the imposition of a penalty in the amount of the sum deposited.
There seems to me no need for these fictional arrangements. In the case of minor offences, I see no reason why there cannot be a simple notice of penalty and a time within which the defendant can require the matter to be referred to a court for proof of the alleged offence. There should be an overriding power in the court to review the imposition of such penalties to cover such cases as where the defendant did not receive the notice or for some reason did not understand it.
I recommend that a default procedure be instituted in respect of petty offences. This will involve the creation of a list of the offences concerned indicating the penalty for each such offence. I expect that it would prove adequate to serve the default notice by post. If this proves not to be so, the matter can be reviewed.
If there is a sufficient volume, this is an area where consideration should be given to the use of a computer.
E. Speedy Trial
Earlier in this report I have referred to the time limits from arrest or charge to trial as operating or recommended in South Africa60 and Scotland.61 I have also made a number of passing references to the operation of the speedy trial legislation in the United States.
In the federal courts of the United States, the position is governed by Sections 3161 and 3162 of the rules of Criminal Procedure.62 The rules require an information or indictment to be filed within 30 days from the arrest or charging of the defendant and for the arraignment to take place within ten days of the indictment. The trial must commence within 60 days of the arraignment. There is provision for the periods mentioned to be extended in certain circumstances. If the defendant is not brought to trial within the 60 days, as extended, the information or indictment shall be dismissed on the motion of the defendant. Failure of the defendant to move before trial, or a plea of guilty, constitutes a waiver of the right to dismissal. The government may reprosecute, which is a matter the court must consider on the motion to dismiss.
A number, at least, of the States have similar provisions although the time periods vary. For example, in Oregon the time limit is 60 days from arrest.
The Scottish and, I think, the South African position is that the defendant cannot be re-charged for the same offence. In the United States he can. On balance, I think it should be possible for the defendant to be re-charged, perhaps on the prosecution showing that new evidence has become available.
The time limit can operate in one of three ways. It can be absolute, absolute subject to extension or it can operate upon application of the defendant. I take the view that it should operate absolutely, subject to extension by order of the court. Although the consent of the defendant would be an important consideration in an application for such an order, it would not be conclusive.
It has been suggested that the imposition of such time limits would open the way to corruption within prosecuting offices: that prosecutors would allow prosecutions to get out of time. I do not see this possibility as a sufficient disability to outweigh the benefits of speedy trial. The possibility would be reduced by the introduction of a prosecuting office, as I have recommended, and by the use of a computer to control the case flow. It must also be borne in mind that the cases will appear on the court list and the dismissal will be a public matter.
The fact that the defendant is in custody is relevant to the time limit to be imposed. I suggest that the time limits to be imposed, after an initial period to allow adjustment should be:
(a) from arrest or charge to commencement of committal - 30 days;
(b) from committal to commencement of trial, where the defendant is in custody - 90 days;
(c) from committal to commencement of trial, where the defendant is not in custody - 180 days;
(d) in summary matters - 90 days.
As there is provision to approach the court for extensions of time and the time limits are reasonably liberal, I do not think it necessary to have provision for automatic extensions of the periods.
If the committal proceedings are abolished, I suggest that the period of 30 days in (a) be added to the periods in (b) and (c).
I recommend that a defendant to criminal proceedings whose trial or committal has not commenced within the times set out above should be discharged.
FOOTNOTES
52. pp. 12, 17, 24, 27, 37 cf. p. 27.
54. Working Paper No. 4 - Criminal Procedure - Discovery (1974).
55. See p. 2 1.
56. Companies Act 1967 (U.K.) s. 164 ff.
57. p. 51.
58. See pp. 35-37.
59. Speech on election as Lord Mayor of Dublin, 10 July 1790.
60. p. 13.
61. p. 21.
62. Title 18, U.S.C.A., chapter 208.
