The single greatest failing in Victoria’s justice system
Tough-on-crime laws are always popular, but they are not always right, which is why we need people with the courage to stand up and not be swept away with the tide of public opinion.
This is because with every new police power, we all give up something.
Since I began in this caper, law enforcers have become equipped with bodies that can demand secret testimony, phone-tapping powers, and the right to demand DNA and fingerprints.
Greg Barns, SC, a national criminal justice spokesperson for the Australian Lawyers Alliance, is someone whose opinion is measured when crime debates can become unhinged.
When the state government said it would introduce a law to stop triple serial killer Paul Charles Denyer, who had been sentenced to a 30-year minimum, from ever being released, he warned of the dangers of parliament overriding judges.
“For an executive government to identify particular individuals as having committed such heinous crimes that legislation must be passed so that it may override the courts which sentenced them is an exercise in dangerous overreach,” he wrote in these pages.
As essential practitioners in the justice system, the legal fraternity’s opinions on its innermost workings are essential.
But what the overwhelming majority of lawyers fail to see is that the single greatest failing in the justice system is … lawyers.
It is the last closed shop, is largely change resistant, refuses to acknowledge the failures in its own profession, fails to deal effectively with its own rogues, and encourages a system that, because of outrageous costs, is out of the reach of most people.
There are many wonderful lawyers, the type who work pro bono, represent the underprivileged and have fought for years to expose injustices.
At a royal commission, a brilliant lawyer with an eye for detail validated my evidence when he realised a series of police documents had been signed by a NSW cop using the wrong rank, proving they were fake.
Then there are those who think graduating with a law degree elevates them to a position of infallibility.
In the royal commission into police using disgraced barrister Nicola Gobbo as informer, allegations made against lawyers resulted in their names being suppressed while most of the cops were not afforded the same courtesy.
Gobbo highlights the issue – many lawyers are prepared (justifiably) to criticise police for using her but not their own profession for failing to deal with her.
Over the years, I have seen lawyers, whose reputations are best described as colourful, quoted on all sorts of ethical matters.
It is the equivalent of asking a crocodile to review a vegan cookbook.
As to a hammer, everything is a nail; to a lawyer, every problem requires a legal solution.
Perhaps we would have been better off spending the $100 million on road potholes rather than looking for legal loopholes.
It also made a recommendation – understandable, but ultimately disastrous.
Because police failed to disclose Gobbo was an informer, the commission found police could not be trusted to hand over relevant material, which means they must produce virtually everything and provide a “disclosure certificate”.
Police have been taken off the road for three months to collate material in a sex crimes case.
To avoid the hassle, some police are meeting in secret to avoid email trails.
Defence lawyers are being smashed with irrelevant material that will create even greater delays, and hundreds of cops are wasting their time looking through paperwork that has nothing to do with guilt or innocence.
People on multiple charges are granted bail only to continue to offend. They are released, not because courts are soft or police are morons, it is because the delays in courts make it untenable to keep them in prison.
The Herald Sun, quoting police figures, has revealed that people on bail have been charged with 26,557 indictable offences in the past 12 months.
We know of a woman who has been bailed 22 times this year for aggravated burglary, with everyone knowing she will offend again. The reason? Her case will take years to get to court, and she will not be sentenced to multiple years, so it is unfair to keep her in remand for a period longer than her final sentence.
According to the Sentencing Advisory Panel: “The percentage of unsentenced prisoners in Victoria’s prisons increased from 13.1 per cent in 1977 to 42.1 per cent in 2022, when there were 2763 unsentenced prisoners.”
These are people considered innocent by the law and yet are still in jail because the system takes too long.
Entirely sensible suggestions by the entirely sensible former Supreme Court judge Paul Coghlan to remove thousands of minor cases from clogging the magistrates’ courts have been ignored, initiatives to streamline cases have been minimised or pigeonholed, and the justice system plods on like a milk cart in a grand prix race.
Fact: There are not enough police on patrol, and those who are face burnout. There are not enough police on the road, and the road toll is climbing.
Fact: Police are spending too much time in court and behind computer terminals collating information that does not further the course of justice.
Fact: Too many people are in prison because of court delays.
Everything in the world has become faster. We don’t write letters and wait weeks for a response, we don’t book international calls via a national exchange, and we don’t need to access volumes of encyclopaedias to find an answer.
Except the law. Cases are more difficult, trials last longer, and for what? There is no evidence the acquittal rate has altered markedly. The system is more complex, not better, and the longer a matter takes to resolve, the more lawyers are paid.
In March 1973, the IRA set four car bombs in London, with two exploding. Nine suspects were arrested: one pleaded guilty and eight were convicted.
Without DNA or CCTV and with statements and briefs of evidence composed on old-fashioned typewriters, the trial began within six months.
In a recent Melbourne murder case where the evidence was overwhelming against a single offender, it took five times that long to come to trial.
Gangland figure Roberta Williams was charged with assault and blackmail offences in 2019. It took three years for the straightforward case to be resolved when she pleaded guilty.
I was a witness in the case. What I had to say was of no relevance to her guilt or innocence, and there is the problem. These cases are clogged with witnesses who don’t matter.
A UK parliamentary white paper found trials should concentrate on the core issues, so “only those witnesses whose evidence is to be challenged are required to attend”.
Commercial lawyers charge in 15-minute blocks — the longer the action the bigger the cheque. Their photocopying bills indicate they are using the reverse side of the Magna Carta as paper.
Retiring Federal Court judge Steven Rares told the Australian Financial Review white-collar crime prosecutions were “lamentably slow”.
When he started in 1980, a long commercial case took three days. “Today, that doesn’t even cover the opening of one side. Life is not that more complex. But the statute law is.”
What he found from working on the cases has left him disgusted. He says there are about 770 claims of institutional abuse in Victoria and about $2 billion in claims Australia-wide. He estimates 30 per cent will end up with lawyers determined to drag out the process. That’s $600 million.
He says the fees are spent on pointless legal procedures because “virtually all the cases settle out of court. The chief beneficiaries are the legal blowflies feeding in the open sewer.
“They will buy plenty of Maseratis and holiday houses out of this.”
If lawyers are remotely interested in the rights of the victim and the accused, they need to embrace change.
Court delays are a scandal and the impact profound for victims, witnesses, suspects and police.
The government needs to set up a panel to halve waiting lists and trials.
It could appoint former Supreme Court judge Lex Lasry, a veteran with a proven track records on civil liberties; retired Federal Court judge Steven Rares, who is prepared to call out his own tribe; Lucinda Nolan, former police deputy commissioner; former premier Steve Bracks, who understands the numbers game; Carmel Arthur, widow of murdered police officer Rod Miller, expert on victims’ rights and former member of the Adult Parole Board; and Paatsch, an ex-lawyer who calls out the excesses of his former profession.
Lawyers, many wedded in the past, cannot be trusted to modernise the system. But someone needs to and fast.
Our book, Naked City, has run (or been stolen) off the shelves and is being reprinted – which means either people are interested in true crime or are looking for a cheap biodegradable insulation product to stuff in their walls.
John Silvester lifts the lid on Australia’s criminal underworld. Sign up to receive his Naked City newsletter every Thursday.