CHAIR —Welcome. Senator Bolkus has some questions.

Senator BOLKUS —Was the DPP consulted about the decision of the Australian Securities Commission not to prosecute the now Mr Justice Callinan in relation to his involvement with Giant Resources Ltd a couple of years ago?

Mr Martin —You had better ask Mr Delaney, who was around at that time.

Mr Delaney —I would have to check the records, Senator. My recollection is that there may have been consultation, but I do not think there was a brief of evidence, so to speak. May I take that on notice, Senator?

Senator BOLKUS —Sure. Take that notice and come back to us with the degree of the involvement of the DPP. If you were consulted, are you aware on what basis it was decided not to proceed with charges against Mr Justice Callinan?

Mr Martin, you have floated proposals for reform of the criminal trial process. Can you give us some detail of them? If you have documentation which spells them out, could that be made available to us as well?

Mr Martin —I do not really have a document. I gave a paper at an AIJA conference a month or so ago in Adelaide which touched on it. It is really centred on mutual disclosure. The prosecution, as you would be aware, is obliged to disclose its case at a very early stage, prior to committal proceedings in indictable matters. I have a view that, if we reform the process to require accused persons to disclose the essence of the defence—expert evidence, issues to agree evidence, identify issues in dispute—that once we reach the trial court stage we can achieve a very large saving in costs to the community at large. It is not just a legal aid question; it is the cost of running the whole criminal justice system.

I favour that at a stage after the committal when an accused person is represented, knows the extent of the crown case, has had time to get advice and is then in the control of the court. This would all come under the auspices of a court in pre[hyphen]trial procedures. There are pre[hyphen]trial procedures in place already, but they lack teeth. So that is the essence of it at that stage.

Senator BOLKUS —I have indicated some interest in your proposal, and Senator Cooney would probably like to tease it out as well. One area that I would be concerned about is how you handle the accused's right to silence. Did you address that at all?

Mr Martin —Yes, it does involve a modification of what has been called the right to silence. It would be subject to a judge's discretion, of course, to cater for those exceptional cases where for some reason it might be unfair to disclose the essence of the defence or require an agreement to evidence and so on, also to cater for the unrepresented accused person. It involves a modification to this extent. At present an accused person is not required until the end of the crown case to agree anything; they can put absolutely everything in issue. And there is really no sanction at the end of that if, when we come to the end of the crown case and the accused gives evidence or whatever, there has been nothing in dispute except perhaps a central issue. So a lot of time and energy can be wasted.

We are working with Legal Aid and getting great cooperation from them in trying to change the culture. There are cases where people agree things and we cut the time quite dramatically. So yes, it is a modification to the right to silence to the extent that you are requiring the disclosure of the essence of the defence prior to the commencement of the trial. I do not see that as unfair at all. It is not reversing the onus, and it is not good enough for those who anxiously support it now from the defence bar to say, `Well, it's unfair because you are interfering with a fundamental right.' You have to look deeper than that. In my view, it is not unfair at that stage where you have the protection under the auspices of the court to require this sort of disclosure. So to that extent it does modify the right to silence if you categorise the right to wait till the end of the crown case as a right to silence. I am not going as far as the English have gone. You would appreciate that there the police have to give a caution that says, `if you don't tell us about a relevant fact now, it can be taken against you.' I'm not going back that far; I am concerned with when we are under the control of the court and it cannot really be said to be unfair.

Senator COONEY —It depends on the situation, doesn't it? If you have a person who has not got adequate legal representation, that would make a difference to the equation, wouldn't it? Your view depends upon there being some equality between the parties to the trial.

Mr Martin —I do not think that follows, Senator. In some ways this has an assumption that people are not adequately represented. I do not think that follows at all. The situation would simply be this. They have the full crown case; they have had it since committal. They have had legal representation and advice. They are now about to enter a trial in which they know what their defence is and they are ready to cross[hyphen]examine all the crown witnesses and to take a trial right through to presenting the defence. At that stage, they are ready to go and it is a matter of saying, `In fairness to the community, they should be obliged to agree evidence that is not in dispute, to disclose the essence of the defence and to give advance notice of expert evidence.' They have to give advance notice of alibis already. Those sorts of things can all cut trial lengths by up to 50 per cent very easily.

Senator COONEY —Does your plan involve the accused having adequate legal representation?

Mr Martin —I want to leave a discretion within the judge to cater for the situation where it might be unfair to require advance disclosure. Unrepresented people are a classic example. The judge might say it is unfair. The chances of a trial taking place where it would be unfair to disclose the defence in advance with an unrepresented accused are pretty remote anyway, I suspect, because of the Dietrich principles. But you leave that situation open. You leave the discretion in the judge even if they are represented to say, `Well, for one reason or another, it is not fair.' And if a judge gets an impression that the representation of an accused person is ill prepared, not ready for the case, not competent for one reason or another, then the judge will step in and say, `No, alright, this is an exceptional case.' And bear in mind that this is a pre[hyphen]trial procedure. It is in the lead[hyphen]up to the trial where you have in effect conferences or applications under the control of the trial judge.

Senator COONEY —When you say that it is out of fairness to the community that this be done, it would also be out of fairness to the community that the trial be conducted properly—

Mr Martin —Absolutely.

Senator COONEY —I am not suggesting for one minute that you are doing anything else but suggesting, as you have, that the trial should be conducted fairly from both sides. And seeing it conducted fairly is a matter of public interest. It is often put—and I do not suggest for one minute that you have put this—that there are too many people being acquitted and that somehow this is a bad thing for the community. The big thing for the community is that there be a fair procedure.

Mr Martin —I agree with that entirely. I do not subscribe to the view that this is about too many people being acquitted. I am a firm believer in the jury system. I am a firm believer in the burden of proof and the presumption of innocence—absolutely. I am not concerned if people are acquitted; that is the system at work. I agree with you that, as a matter of community interest, there are two sides: one, that the accused gets a fair trial according to law; and on the other side, that the community has a system that operates as efficiently and as fairly as possible.

It has reached the stage now, in my view, where the cost to the community of running the criminal justice system in its total effect is such that we need some reforms—reforms that will not unfairly prejudice the rights of an accused person. It is just not good enough to say, `Oh, it is a fundamental right—we can't change it.'

Senator COONEY —We have talked about equality in representation. What about equality in an emotional and psychological state—it is a lot easier to accuse somebody than to be accused. But somebody who is accused, with all their emotions and their adrenaline flowing, is not so well able to present his or her case as a person who prosecutes it, who says, `This is my day's work, I will do it efficiently and well and take pride in it.' But there is not that same sort of emotional involvement.

Mr Martin —That is why it is often said that a person who represents himself has a fool for a client. That is the precise reason why you have legal representation because, if they are worth anything, they will approach the case sympathetically from the client's point of view, but with a detachment and objectivity that enables them to avoid that emotional connection and to ensure proper representation.

There somehow seems to be a perception, that those with a vested interest are trying to push at the moment, that there is some inequality between the prosecution and the defence, in terms of representation. That is just not so. I have been in the game for long enough to know that you can have good and bad prosecutors and you have good and bad defence counsel, and you will not always have them evenly matched—naturally. But I do not subscribe at all to the view that, for some reason, in this modern day the representation on either side is in some way unequal. There is a lot of money being spent out there by private people to ensure that they are well represented; and by legal aid to ensure other people are well represented. Our experience is that there is no inequality at all. Generally, everyone is pretty well matched.

Senator McKIERNAN —You indicated in response to Senator Bolkus earlier, Mr Martin, that you were working well with legal aid on this. Which commissions have you been working with on it?

Mr Martin —We have a committee now, representative of legal aid bodies around the country, with representatives of state directors and representatives from the Commonwealth director. It is a joint committee that is considering all the issues. It is endeavouring to reach agreement on some protocols and some ideals that we are trying to achieve in reducing the length and the costs of trials. We have been working at this for probably 12 months.

Senator McKIERNAN —So national legal aid would be the body that you would be focused on?

Mr Martin —As I understand it—Grahame is the one who is actually our representative.

Mr Delaney —We were initially involved, Senator, about this time last year—don't hold me to the date, but it was about the middle of last year. We met with the directors of each legal aid office around the Commonwealth in Melbourne and there have been a couple of subsequent meetings. As the director has mentioned, these have been elevated to the state DPP and Commonwealth DPP personally—those levels. The idea is to agree, to the extent possible, on how procedures can be changed to—in essence—get to the real issues in a case and thereby shorten it.

Senator McKIERNAN —In the matter of the fool who engages himself or herself, rather than the person who engages a fool—

Mr Martin —I think I should have used that expression in the context of a lawyer. I think that it is how it grew up: a lawyer who acts for himself has got a fool for a client.

Senator McKIERNAN —Okay, I will move to a self[hyphen]represented litigant then. What impact on your office have the cuts to legal aid had? You have had some time now to digest the cuts, from your comments in last year's annual report. I am particularly concerned with the self[hyphen]represented litigant rather than the legal aid cuts which are the focus of another section and on which I have a question for Mr Reaburn—I have never seen him sit silent for so long before. I am sorry, Mr Martin.

Mr Martin —That is all right, Senator. It is actually very difficult to start trying to assess what effect it is said cuts—whatever they may be—have had. There are a couple of reasons for that. One is that there is a rolling list of applications across Australia—in effect, based on Dietrich—but a lot of them are because legal
aid has refused to provide assistance. A certain percentage of those will be based upon the understanding or the perception of legal aid that these people do not qualify. For example, we have one trial stayed at the moment, in Victoria, where the view was taken that this person had assets overseas that could be used, therefore that person did not qualify. So that is one area that makes it very difficult to have some sort of assessment about whether or not legal aid is short of funds, et cetera. I know of at least one other trial that has been stayed where the same view was taken.

On the other side, I do not know how many of them are refused because someone in legal aid says, `We don't have enough money.' You understand the two different concepts that I am driving at? So I really cannot answer that. It would be a matter for the legal aid authorities to say, `We've been cut to the extent that we haven't been able to fund X number of trials because of a lack of funds,' as opposed to, `We have refused aid because we believe somebody has got hidden assets.' I know of at least a couple of trials that are stayed where that view is certainly held, so it is very difficult for me to try to answer.

I can say to you that we perceive the Dietrich ruling is now being used as a tactic by the defence; we are getting constant applications based on it. We see it at times as a tactic by the defence to try to delay trials—and it is a problem. The trials are delayed from time to time while applications are made, evidence is checked, hearings are held—and sometimes they take some days to be held—and lists are delayed accordingly. But to what extent they are due to the shortage of the legal aid dollar or are being used as a tactic, I am sorry I cannot answer you on that one.

I can say—and I think you probably have the figures already—that we have very few trials across the country at the moment that are stayed. There are two in Western Australia. One of those involves two accused, and one of those matters is now with the state. I think the stay order still exists. But, as to those two accused, I am not sure that it is a lack of funds rather than legal aid refusing because they do not think they qualify.

There is one in South Australia where an order has been made—that is the same two accused as were charged with the offence in Western Australia, but different offences. There is one that has been indicated where the judge believes he will make a stay. That one is clearly not someone who is suffering from any lack of legal aid dollar. The judge made the ruling notwithstanding that these people between them—the husband and wife—have a net income of about $100,000 a year, and I can indicate that we may be doing something about that particular ruling.

There is one in Victoria—this is the other one I was thinking of—again where, in the belief of the prosecution, there are overseas assets. That matter is under repeal because the judge declined to exercise it—he did not have jurisdiction to hear it. So there are not many actually stayed at the moment under the Commonwealth. I do not know what the state position is.

ACTING CHAIR —We will not seek to press the state position here; the minister would get upset with me if I tried. Would it be possible, recognising the sensitivity of these matters, to provide the committee with a brief fax regarding those cases which are stayed? I do not press the matter further here in—

Mr Martin —We can take that on notice.

Mr Delaney —I was just thinking that through quickly. There may be some difficulty in terms of these being pending trials. I would not have a problem with the committee seeing the information, but we would not like to see it publicised to any extent because then the accused can make applications on the basis of their trial being somehow prejudiced.

ACTING CHAIR —We accept that. We cannot take confidential submissions, so if you can delete the identifying marks—names and things—from it, it would help us in getting an understanding. You indicated, Mr Martin, that there is a constant stream of applications for Dietrich. Do you have any statistics on the numbers.

Mr Martin —I am sorry, I do not. All I know is that when I travel around the country each state seems to have a couple of applications on the trot or some that are indicated. It is not an enormous problem; it is just obviously an interference with the smooth flow of the list, that is all. It is not an insurmountable problem or a huge problem. There are a few here and a few there; they just keep coming up.

ACTING CHAIR —If we do not have the numbers, though, we do not know the extent of the problem. Is it two per cent of cases, five per cent of cases or 20 per cent of cases, and is it growing or is it dwindling?

Mr Martin —No, it would be a very, very low percentage, but I do not know that I can put a figure on it. It would be more like a single figure percentage, I am sure. In fact, it would be in the bottom part of that, I suspect. These things happen in the criminal justice system. A few years ago the flavour of the month was the alleged verbals and voire dire examinations, and every trial you came into somebody had been thumped and so on. Some of them were correct allegations, I might add, but it was the flavour of the month. At the moment, the Dietrich application seems to be taking on a little bit of that.

Senator COONAN —Following on there, would it be a fair comment to say that Dietrich style applications are sporadic and have no pattern?

Mr Martin —They are sporadic in the sense that they can come out of the blue totally, and they cover a wide range of offences.

Senator COONAN —But Dietrich applications have not brought legal aid as we know it to its knees. Is that a fair comment?

Mr Martin —A Dietrich application takes place only after legal aid has refused aid for one reason or another, so it is not necessarily a reflection—as I was trying to explain earlier—of a shortage of the legal aid dollar. It might be partly that and it might also be due partly to people trying for legal aid who do not qualify, because they either have enough assets or hidden assets or whatever the case may be.

Senator BOLKUS —Mr Martin, the role of the prosecution of offences in Tasmania has been transferred from the AGS to the DPP at a cost of $1.17 million. Are you going to be supplemented for that?

Mr Martin —No, that is a straight transfer of the funds that AGS were being provided with to carry out that function. So it is not an additional increase. Am I right?

Ms Walker —That is right.

Mr Martin —It is not an extra $1.17 million that has been found from somewhere. AGS had that money allocated to them for the purposes of carrying out the DPP function in Hobart. Now that we have taken it over, the money will come across to us.

Senator BOLKUS —Does that appear in the estimates?

Mr Martin —I am told it does.

Mr Blunn —It would be in the department's estimates.

Senator BOLKUS —I will take your word for it. Can I turn to the waterfront? Mr Martin, has any evidence been put to the DPP in terms of considering prosecutions arising out of the waterfront dispute?

Mr Martin —We had one inquiry from a solicitor, I think it was, on a peripheral matter that did not involve us. It did not involve any action by the DPP. It was not a matter within our jurisdiction. It was a quite separate issue. We have had one other matter referred to us, which again was peripheral to that dispute and we have given certain advice. I do not think it is appropriate for me to identify where it came from or the advice that we gave.

Senator BOLKUS —Has anyone referred the `alleged' inconsistencies in Mr Corrigan's evidence to you for consideration?

Mr Martin —Not as far as I am aware. I think I probably would be aware of that one.

Senator BOLKUS —I thought you might have been.

Mr Martin —I hope I would be.

Senator COONEY —Can I ask the question this way. There is nothing of which you are aware as the DPP of the Commonwealth which would in anyway mean that this or any other Senate committee could not ask questions about the wharf.

Mr Martin —You are thinking of the issue of contempt of court?

Senator COONEY —Sub judice.

Mr Martin —No, there is nothing in that category.

Senator COONEY —So there is nothing you can think of which would stop an estimates committee asking questions about the law?

Mr Martin —Not from the sub judice point of view. There might be some other debate. That is in relation to the DPP matters. I have no idea about any other court proceedings.

Senator COONEY —I was just talking from your point of view.

Mr Martin —It is just limited to the DPP.

Senator COONEY —Let me make it clear, from your point of view as the Commonwealth DPP, there is nothing that you would see as being sub judice.

Mr Martin —That is correct. Nothing that we are involved in would give rise to any sub judice issue.

Senator BOLKUS —I have two ancillary questions then. Have you had cause to consider any possible prosecutions in respect of, for instance, rorts on the waterfront relating to hull cleaning and those sorts of practices?

Mr Martin —As Commonwealth DPP, no.

Senator BOLKUS —The only other one was in respect of the breach of army regulations.

Mr Martin —By whom?

Senator BOLKUS —By anyone involved in the waterfront dispute.

Mr Martin —I am sorry, no.

Mr Blunn —If I may give the answer to Senator Bolkus's previous question. That transfer appears in the document on page 33 under the department's estimates and it is picked up again at page 149 under the DPP.

Senator BOLKUS —Thank you.

Senator COONEY —Can I ask one other question in relation to the time a matter takes to come to trial. You have only got a certain amount of resources available to you, but there seems to be long delays between a person being committed for trial and the trial coming on, especially if the person is acquitted. In any event, it is not a good thing, I would have thought, for a person to be put in that position of waiting for trial. Can you think of anyway that that might be cured, other than getting more resources?

Mr Martin —I agree with you. Those delays in some places are highly undesirable. I must say that I was advised the other day that the delay before trials can be reached in some courts in South Australia is in some cases only a matter of weeks. That is after committal. In New South Wales, it is not quite the same. So I agree—the greater the delay, the more undesirable it is, but that obviously is a matter under the control of the court entirely. We can have no part in that. All I can say is that, if we can achieve some reforms in the system, such as those that I have suggested, and we shorten the trials and get a lot more agreement, then we will find those waiting lists will start to dwindle quite dramatically.

ACTING CHAIR —If there is nothing further, I thank Mr Martin, Ms Walker and Mr Delaney for your attendance. That completes the program for interstate bodies.

[2.30 p.m.]