This Commission has a reference to inquire into and review the law and practice relating to criminal procedure. This reference was prompted in part by concern about and criticism of undue delay, inefficiency and excessive cost in the administration of the criminal justice system in New South Wales. These problems have been encountered in various degrees in recent times in most common law jurisdictions both in Australia and elsewhere. Whilst they are in themselves matters for concern, their most disturbing consequence is that they threaten to affect adversely the overall standard of the administration of justice. In short, delay, inefficiency and excessive costs cause injustice.

2. The Commission has prepared a substantial Discussion Paper on that phase of the criminal process which covers the time at which an accused person is charged with an alleged offence up to the time at which the accused person is, or may be, brought before a court for trial. The Discussion Paper examines the following areas and makes tentative and sometimes alternative proposals for reform in each area:

• time limits on the prosecution of criminal offences;
• disclosure by the prosecution;
• disclosure by the defence;
• the determination of jurisdiction in cases where an alleged offence is capable of being tried either on indictment or summarily;
• committal proceedings;
• listing for trial;
• pre-trial conferences and hearings;
• the "no bill" procedure;
• plea bargaining;
• pre-trial publicity in criminal cases; and
• the nature and function of the agency responsible for the prosecution of criminal cases.

4. As with the more substantial Discussion Paper on specific issues, this paper is published for the purpose of obtaining responses from people and organisations having a particular interest in the subject of pre-trial procedure in criminal cases. The Commission is acutely conscious of the fact that there will be differing views held on many of the proposals contained in this paper. We stress that the proposals are tentative and welcome submissions as to whether they are sound in principle and valuable in practice.

5. Reform of pre-trial procedure in criminal cases offers the best prospect for reducing the incidence of delay, inefficiency and the consequent injustice which may result. Whilst the Commission is concerned with the problem of delay, the Discussion Paper also examines whether current procedure, and possible reforms of that procedure, fulfil those principles which we consider should be fundamental features of a criminal justice system, namely:

• fairness;
• efficiency;
• consistency;
• accountability; and
• public acceptability.

• delay is generally expensive and wasteful of resources;
• it results in the loss of and a deterioration in the reliability of evidence;
• it causes a reduction in public respect for the criminal justice system;
• there is prolonged anxiety for the victims of crimes;
• it causes additional delays in restitution and the payment of compensation to victims of crime;
• there is increased inconvenience to witnesses;
• there is prolonged anxiety for accused people;
• it results in gaol overcrowding caused by increased numbers of people being held in custody for long periods pending trial, and, conversely, the granting of bail to people accused of serious offences are granted bail to avoid gaol overcrowding;
• while time spent in custody pending trial is usually "credited" to those who are convicted, for those acquitted there is usually no compensation;
• there is a higher incidence of absconding on bail;
• it results in a greater reliance on disposition of cases by plea and charge bargaining;
• there are increased difficulties in sentencing convicted people; and
• there is a diminished likelihood of offender rehabilitation and a diminution in the deterrent effect of the criminal justice system.

• the lack of effective controls to ensure the expeditious administration of justice;
• the absence of comprehensive rules governing the practice of disclosure by the prosecution;
• the lack of any formal procedure requiring or facilitating disclosure by the defence;
• uncertainty and ambiguity in determining the mode of trial;
• the failure of committal proceedings to serve efficiently and adequately the various purposes for which they are intended;
• the need for an efficient and reliable procedure for listing criminal cases;
• the absence of formal pre-trial procedures designed to reduce the length of trials and ensure effective preparation for trial;
• the lack of any formal regulation of the procedure for determining that "no bill" should be found;
• the lack of any formal regulation of plea bargaining practices;
• the risk that the publication of prejudicial material will prevent a fair trial being conducted;
• the organisation of and the interrelationship between prosecuting authorities.

8. We are conscious of the fact that a massive increase in the various resources required for the administration of justice is one means of solving the problems we have identified. However, our emphasis has been to develop more efficient procedures which make more effective use of available resources.

9. After the completion of our research on this aspect of criminal procedure, the Attorney General announced his intention to introduce into Parliament two related items of legislation which would have a significant impact on the procedures covered by this paper. The Director of Public Prosecutions Act 1986 establishes an independent prosecuting authority to be known as the Director of Public Prosecutions. The Criminal Procedure Act 1986 provides for the establishment of a Criminal Listing Director who will have the responsibility for listing criminal proceedings before the higher courts. Both of these initiatives are consistent with our proposals for reform of pre-trial procedure in criminal cases and, indeed, are features of the general scheme that we have put forward in this paper.

10. Whilst this legislation has effectively introduced two of those reforms which the Commission would have recommended in this part of its reference on criminal procedure, there are many other important initiatives put forward in this paper which remain to be considered and which will to a large extent determine how effective the legislation already introduced proves to be. As we have said, we expect these tentative recommendations for reform to be the subject of debate and we would welcome contributions from any person who wishes to comment upon any of these proposals. Similarly, we would appreciate suggestions relevant to this phase of criminal procedure which are not covered in this paper.

Our present intention is to complete our Report on this part of the reference by July 1987. Accordingly, submissions should be received no later than 30 April 1987. There is a comment sheet at the back of this paper for the convenience of those who wish to express a view about our proposals.

Keith Mason, Q.C.
Chairman

Paul Byrne
Commissioner in Charge
Criminal Procedure Reference

All submissions and inquiries should be addressed to:

Mr. John McMillan
Secretary
NSW Law Reform Commission
PO Box 6, GPO
SYDNEY. 2001
Telephone: 228-7213