7. Role of the DPP and defence practitioners
7.1 The Commission was told that inefficiency, delay, and failures to resolve matters at an early stage can be attributed partly to failure by defence and prosecution practitioners to engage actively in proceedings from the outset.
7.2 In 2014 the New South Wales Law Reform Commission identified several barriers to securing appropriate early guilty pleas. These included:
• a failure by the Director of Public Prosecutions (DPP) to brief Crown Prosecutors with authority to negotiate until late in proceedings
• discontinuity of legal representation leading to inconsistency in advice and negotiations.
7.3 These barriers are also present in Victoria. The prosecution is not actively engaged in committal proceedings from the beginning. It is common for both the prosecution and defence to brief less experienced solicitor-advocates or counsel during pre-trial proceedings and to transfer briefs to more senior counsel at the trial stage.
7.4 The problem of insufficient early engagement by both parties is also structural. Because the informant is responsible for drafting and filing charges and preparing the brief of evidence, as well as for other aspects of committal proceedings, it is natural that the DPP’s involvement is minimal until a late stage in the committal proceedings. Without meaningful early involvement from Office of Public Prosecutions (OPP) practitioners, even those defence practitioners who try to resolve the matter quickly are likely to be thwarted.
7.5 This chapter canvasses the situation in Victoria in relation to the informant’s and prosecution’s different roles in committal proceedings. It explains how reforms in New South Wales have attempted to ensure more active engagement from an early stage by experienced prosecutors and defence practitioners. The chapter considers what stakeholders have reported about the issue in Victoria and concludes by urging the need to ‘front-load’ the criminal justice system. This requires two things:
• the DPP assuming earlier prosecutorial responsibility for conducting committal proceedings
• the provision of funding at an early stage in proceedings to secure the involvement of experienced practitioners and to ensure continuity of representation.
Structural problems with committal proceedings
7.6 The informant commences criminal proceedings by filing charges. If the defence wants to communicate with the prosecution between the filing hearing and the committal mention, their point of contact is usually the informant. The informant is also the point of contact for complainants and other witnesses and is responsible for informing them about court dates and the criminal process.
7.7 The DPP conducts almost all committal proceedings for Victorian offences, but the prosecution’s level of engagement is minimal in the early stages of proceedings. For example, while it is customary for a solicitor from the OPP to appear for the prosecution at filing hearings in the Melbourne Magistrates’ Court, matters are not usually allocated to a dedicated conduct solicitor who will have ongoing oversight of the proceedings until after the filing hearing.
7.8 It is not surprising that the DPP does not become actively involved in reviewing cases and pursuing early resolution in the lower courts given the informant bears most of the initial responsibilities in relation to charging and disclosure.
New South Wales reforms
7.9 As part of reforms to the criminal justice system introduced in New South Wales in 2018, Legal Aid New South Wales has restructured its serious crime section to provide a continuity of representation model. This means that solicitors now have carriage of criminal cases for the lifetime of the case, whereas previously one solicitor would have carriage of a case during the committal phase and another would assume carriage if the accused was committed to a higher court. Legal Aid New South Wales has also changed its fee structure to increase the allocation of funds provided to private practitioners at the ‘front end’ of the process. This is designed among other things to address the ‘perverse incentive’ that previously existed to only resolve matters at trial. Legal Aid New South Wales are also now briefing defence counsel more regularly and at an earlier stage in proceedings.
7.10 The New South Wales Government initially provided $9.3 million in recurrent funding—although limited to two years, to support the new Legal Aid fee model. A further grant of $10 million in non-recurrent funding was subsequently allocated to help front-load resourcing and ensure continuity of representation.
7.11 The New South Wales Office of the Director of Public Prosecutions (ODPP) has also created a continuity of representation model, with practitioners working in teams led by a senior practitioner who is the ultimate decision maker. More junior practitioners are involved in refining the issues and identifying the applicable offences. The introduction of this model was supported by additional government funding for the ODPP.
Role of the DPP and defence practitioners: stakeholder views
Prosecution not in a position to negotiate
7.12 Even after a conduct solicitor is appointed, the Magistrates’ Court reports that OPP duty solicitors appear in committal mentions rather than the conduct solicitor. Duty solicitors do not have authority to make significant decisions such as to withdraw charges and thus are not able to negotiate effectively with the defence. According to the Magistrates’ Court, it is common for matters to be ‘needlessly adjourned for instructions to be obtained.’
7.13 The Commission was told by regional defence practitioners that OPP practitioners who appear at committal mentions in circuit courts do not have authority to negotiate and commonly have a poor understanding of the issues in the case.
7.14 A further problem identified by the Magistrates’ Court and commented on by regional defence practitioners is that it is difficult to determine who has conduct of a file at the OPP. This makes engaging in proactive and early resolution discussions almost impossible.
7.15 The Commission heard that the OPP formerly had a dedicated regional team of practitioners who had carriage of matters and who travelled to circuit locations and engaged in constructive resolution discussions with defence practitioners.
7.16 The Victorian Aboriginal Legal Service suggested the OPP:
should receive additional funding to ensure that senior prosecutors with authority to negotiate can provide oversight during charging and disclosure.
7.17 Victoria Legal Aid similarly called for:
senior prosecutors … to prepare and engage with the evidence at the earliest stage of committal proceedings, including for case conferencing and appearance in the committal proceedings.
Inadequate preparation by both parties
7.18 It is common in Victoria as in many other Australian jurisdictions to brief less experienced solicitor-advocates or counsel during pre-trial proceedings and to transfer briefs to more senior counsel at the trial stage.
7.19 The Magistrates’ Court reported:
Magistrates are frustrated by the lack of accountability on [the] part of both defence and the OPP in [engaging in timely resolution discussions]. Delayed brief analysis by defence leads to delayed request[s] for further disclosure material and delayed negotiation. Meanwhile, OPP solicitors wait on defence to communicate their position, rather than proactively communicating the bottom line, which magistrates frequently encourage them to do.
7.20 The Court claimed that in response to questioning from the bench it often became apparent that the parties left it very late to engage in resolution discussions or to identify the issues that prevent the case from resolving.
7.21 While it is Victoria Legal Aid’s policy that solicitors have carriage of indictable matters for the lifetime of a case, senior practitioners for both the prosecution and defence are commonly briefed only at the trial stage. This has been identified as an impediment to early resolution and a contributing factor to delay in jurisdictions around Australia. Having different counsel appear in the lower and higher courts also leads to a duplication of efforts. Victoria Legal Aid attempts to address this issue by paying a supplementary ‘uplift’ fee to counsel who act both in committal proceedings and subsequently in the trial court.
7.22 The County Court has tried to tackle the same issue by requiring counsel who appear at a committal hearing also to appear at the initial directions hearing in the County Court, and by emphasising that counsel must have a sound understanding of the case. Compliance with this requirement is, however, patchy.
Early involvement of the DPP
7.23 The informant has primary responsibility for charging and disclosure throughout committal proceedings. This has led to problems that are discussed in subsequent chapters.
7.24 The DPP should assume formal prosecutorial responsibility for all indictable stream matters from the point of filing in the Magistrates’ Court onwards (see recommendation 8, Chapter 6). This would improve appropriate charging and disclosure. It would also encourage consistent representation and facilitate the earlier involvement of experienced prosecutors.
Early engagement of experienced practitioners
7.25 It is essential that both parties are equipped to negotiate at an early stage in the Magistrates’ Court, and to assist the Court in its oversight of cases by having a sound understanding of the issues.
7.26 The Magistrates’ Court should be more assertive in its use of costs orders to penalise practitioners who appear at court without adequate instructions.
7.27 Victoria Legal Aid, the Victorian Aboriginal Legal Service, and the DPP should:
• appoint experienced practitioners at an early stage
• endeavour to ensure that practitioners who accept conduct of matters do not withdraw before the matter has finally resolved, unless they have good reasons for doing so.
7.28 The Commission recognises the logistical challenges associated with ensuring the early and continuous involvement of experienced practitioners. A mentoring system could be adopted, allowing less experienced practitioners to appear and conduct negotiations in committal proceedings and have conduct of pre-trial matters in the trial courts with consistent oversight by experienced practitioners who are familiar with and ultimately responsible for the matter. Supervising practitioners would need to be reliably available to provide instructions.
7.29 Fee structures at the OPP and Victoria Legal Aid should provide for the early appointment of experienced practitioners. As discussed earlier, Victoria Legal Aid currently provides an uplift fee to counsel who act both in committal proceedings and subsequently in the trial court. The DPP could consider introducing similar incentives for counsel for the prosecution.
7.30 Additional funding should be provided to Victoria Legal Aid and the DPP for initiatives to engage experienced practitioners at an early stage and to ensure they remain involved throughout proceedings.
15 Experienced practitioners should be engaged at an early stage in proceedings and have continuing responsibility for the case until trial or resolution.
16 The Director of Public Prosecutions and Victoria Legal Aid should be provided with additional funding to ensure experienced practitioners have oversight of committal proceedings from the outset and are responsible for the conduct of matters until final resolution, including in the higher courts.
17 Fee structures at Victoria Legal Aid and the Office of Public Prosecutions should provide for the early involvement of counsel and to ensure continuity of representation.
18 Victoria Legal Aid and the Office of Public Prosecutions should regularly and publicly report, preferably in their annual reports, on:
(a) measures used to ensure legal practitioners acting in indictable matters retain responsibility for those matters for the lifetime of the prosecution
(b) the success of these measures.
New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 9-10.
As the New South Wales Law Reform Commission said, ‘resources should be switched away from the end process—where they are mostly wasted—and deployed in a “front-ended” system.’ New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 11.
Criminal Procedure Act 2009 (Vic) s 3, definition of informant.
The informant must also provide an address for service of documents (Criminal Procedure Act 2009 (Vic) s 18), may apply for a compulsory examination order (Criminal Procedure Act 2009 (Vic) s 103, and must file a case direction notice if the DPP is not conducting the committal proceeding (Criminal Procedure Act 2009 (Vic) s 118.
Criminal Procedure Act 2009 (Vic) s 129(2).
Office of Public Prosecutions Victoria, ‘Our Role in Prosecutions’, About Us (Web Page, 2016) <http://www.opp.vic.gov.au/About-Us/Our-Legal-Practice/Our-role-in-prosecutions>. Other agencies such as WorkSafe Victoria may also conduct committal proceedings.
This is so even though it has been the DPP’s long-standing policy to take responsibility for the prosecution of matters during committal proceedings: see Directors of Public Prosecutions and National Legal Aid, Best Practice Model for the Determination of Criminal Charges (1988) 2 , available as an annexure to Brian Ross Martin, Review of the Major Indictable Reforms—Criminal Procedure Act 1921 (As Amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (Report, 13 September 2019), annexure 7.
In regional areas, a Victoria Police prosecutor usually appears for the prosecution at the filing hearing.
Consultation 34 (Legal Aid New South Wales).
Consultation 33 (Director of Public Prosecutions (New South Wales)).
Submission 14 (Magistrates’ Court of Victoria).
Submission 14 (Magistrates’ Court of Victoria), 13 (Victoria Legal Aid).
‘It is … a common complaint from defence practitioners that they have difficulty determining who at the OPP has conduct of a particular file and commence disclosure or resolution discussions at an early stage.’ Submission 14 (Magistrates’ Court of Victoria).
Consultations 13 (Goulburn Valley practitioners), 38 (Victoria Legal Aid regional practitioners).
Submission 19 (Victorian Aboriginal Legal Service).
Submission 13 (Victoria Legal Aid).
Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Research and Public Policy Series No 74, Australian Institute of Criminology, 2007) 45–6.
Submission 14 (Magistrates’ Court of Victoria).
Submission 14 (Magistrates’ Court of Victoria). In accordance with Magistrates’ Court of Victoria Practice Direction 6 of 2013: Directions Concerning the Case Direction Notice, 10 October 2013, the parties are required to engage in resolution discussions at least 14 days before the committal mention hearing. The parties are required to file a case direction notice with the outcomes of their discussions at least seven days before the committal mention hearing: Criminal Procedure Act 2009 (Vic) s118.
New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 9–10; Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Research and Public Policy Series No 74, Australian Institute of Criminology, 2007) 45–6.
Submission 20 (County Court of Victoria).
County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, pts 2, 3, 4.