Inconvenient early plea adjournments … Dizzo defends its patch … Judges will switch-off repetitive briefs … Commercial cases rescued by retrospective legislation … Fresh new judges, but the bar wants the court to be reviewed … Walama Court goes wanting 

In a recent missive to judges, which has fallen off the back of a truck, Pricey laid down the law on adjournments requested by the crown. 

“It has come to my attention that it has been suggested that crowns conducting trials may ask for a trial to be adjourned to enable the crown to attend an early plea conference in the Local Court.” 

There is no way the Dizzo is going to be inconvenienced by magistrates hearing early guilty pleas. 

Pricey was smartly on the blower to the Director of Public Prosecutions making it plain that “a District Court trial will not be delayed or adjourned to enable a crown or trial advocate to attend a conference in the Local Court”. 

No Way Jose. 

Furthermore, the chief judge insists, “the inefficient running of trials by counsel cannot be tolerated”. 

NSW Legal Aid earlier this year reminded members of the practitioner panels of their obligations, and Pricey is on the same page, even a few pages ahead. 

In particular, he memoed, trial judges are not obliged to listen to a recitation of written submissions. 

“It is usually appropriate to confine the oral arguments to matters not raised in the written submissions. Furthermore, judges are not obliged to listen endlessly to repetitive submissions”. 

The chief judge also advised his flock that the government will arrange for retrospective legislation to “restore the court’s jurisdiction in commercial matters”. 

The decision in Nova 96.9 Pty Ltd v Natvia Pty Ltd was the nail in the coffin of the court’s commercial jurisdiction.  

Justice Nigel Rein said that like Guy Parker J and Taylor DCJ, he regarded the conclusions in this and other cases as to the limits of the Dizzo’s jurisdiction, “as a most inconvenient and unfortunate outcome for litigants in this State … hopefully steps can be taken in the very near future to remove the lacuna identified”. 

More here on this problem.  

Bingo. The Justice Legislation Amendment Bill (No. 3) whizzed through parliament with retrospective provisions to save heaps of District Court decisions going down the gurgler. It took effect on November 28. 

See the Bill here and the new District Court Act provisions here. 

The explanatory note says:

That’s all clear then. 

“I fear for the wellbeing of many of my colleagues on this bench who have far less experience, are much younger and perhaps aren’t quite the bastard that I am,” said Tupman, the judge who mucked-up the Luke Lazarus rape verdict. 

The Judicial Conference of Australia backed her up with a statement from the president Justice Judith Kelly.  

A few weeks later, AG Mark Speakman was out of the blocks with an announcement that seven extra judges would be appointed to the District Court, “as part of a package of almost $150 million to deliver swifter justice and reduce pressure on the judiciary and court users”.

The money is spread over four years and will include $45 million for more crown prosecutors and others at the ODPP, $34.5 million for new senior legal aid lawyers, and $5.4 million for court prisoner transfers. 

The extra judges, sheriff’s officers, court staff, security upgrades will be of the order of $63 million. 

Derek Price issued another missive saying how delighted he was with these developments and forecast that the extra judicial resources will enable the court to provide additional sittings, particularly in regional NSW. 

“I anticipate that in the first half of 2019, 60 additional sitting weeks in the court’s criminal jurisdiction will be allocated to regional courts.” 

The NSW bar ‘n’ grill has not been quite as enthusiastic. While welcoming the extra judicial muscle for the court, it is calling for “a comprehensive review” of the court’s jurisdiction. 

It even came up with terms of reference for the review, including the level and use of judicial resources, structure of the court, availability of courtrooms, other facilities and technology, listing practices, and the adequacy of support structures available for judges, registrars and staff. 

Right now, there doesn’t seem to be any groundswell from the powers-that-be for this inquiry. It’s Christmas, for god’s sake. 

NSW Shadow Attorney General Paul Lynch has proposed another Justice Legislation Amendment Bill with the object of establishing the Walama Court, to handle the sentencing of Aboriginal offenders. 

It would be part of the District Court, analogous to the Coroner’s Court being part of the Local Court. 

The proposal has been lying on the desk of the government for four years. It’s supported by the NSW bar ‘n’ grill and the Police Association. Yet, it’s all too much for Aunty Gladys & Co who, in line with IPA “thinking”, are opposed to a “seperate system of justice” for Indigenous offenders. 

It’s a rather muddled ideological approach because the government already supports the Children’s Koori Court and Circle Sentencing in Local Courts. 

Lynch’s Bill is here. AG Speakman is opposed to it because it isn’t as detailed as proposals delivered by a working party – yet he had not introduced a Bill more closely modelled on the details he prefers. 

A formal proposal was put by the District Court in November 2015. A memorandum from the Bar Association to the government mounts the case for the Bill: 

“The NSW Bar Association is of the view that swift and decisive action on the establishment of a specialist Walama Court will provide improved justice outcomes for Indigenous Australians and impact on the disproportionate rate of Indigenous incarceration in NSW within a relatively short period of time.” 

It could be operational through the creation of a District Court practice note, supported by minor legislative amendments to the District Court Act and the Crimes (Administration of Sentences) Act. 

The Lynch legislation is based on the model of the State Drug Court and the Victorian Koori Court, which involve community-based options where a judge can monitor an offender post-sentence. The experience with these courts is that intensive monitoring has a marked positive effect on the rate of reoffending. 

At the moment, Aboriginal people are less than three percent of the population, yet make up about a quarter of the people in NSW prisons. 

Justice reinvestment is another component among measures to reduce the over-representation of Aboriginal Australians in the prison system. 

A recent experiment in Bourke, modelled on New York’s Open Society Institute, funded by George Soros, works on the basis that money spent on prisons should instead be spent on keeping people out of them.   

Funding and/or support for the Bourke project has come from the Australian Human Rights Commission, the NSW Department of Aboriginal Affairs and Gilbert + Tobin. Earlier funds came from the Dusseldorp Forum and the Vincent Fairfax Family Foundation. 

KPMG’s report on thre project finds a 23 percent drop in police-recorded domestic violence in 2017; a 31 percent rise in Year 12 student retention rates; a 38 percent fall in five main juvenile offence categories; a 14 percent cut in bail breaches; and a 42 per cent reduction in days spent in custody.

Again, the emphasis is on community solutions, rather than a government law ‘n’ order agenda. There’s an excellent piece on Inside Story about the “Revival on the Darling” and a follow-up here.