BOCSAR Report on New Case Management Procedure in NSW

“[…] assess whether the application of an alternative court model with fixed teams of lawyers operating on a rolling basis in the NSW District Criminal Court resulted in greater efficiency in the resolution of indictable criminal matters relative to the regular operation of the NSW District Court, and to identify the successful elements and mechanisms of the Rolling List Court (RLC) model.”

“At present, more than half (51.6%) of the matters that are committed for trial to the New South Wales (NSW) District Criminal Court (DCC) resolve in guilty pleas (NSW Bureau of Crime Statistics and Research (BOCSAR), 2017). It is thought that many guilty pleas obtained after committal occur on or after the day of the trial, which creates waste for the court system in terms of the resources associated with setting up a trial (such as those involved in allocating a court date and empanelling a jury) and resources spent by prosecutors on preparing matters for trial (NSW Law Reform Commission, 2014). Therefore, encouraging pleas of guilty before trials begin could generate significant savings for the court system, especially in the NSW DCC where court delay is a serious problem (see Weatherburn & Fitzgerald (2015) for analysis of the recent growth in court delay in the NSW DCC, and Thorburn (2017) on potential solutions to court delay in the Sydney registry of the NSW DCC)” (p 1, Report, BOCSAR).

“The RLC was found to be considerably more efficient at resolving criminal matters in the NSW DCC than the general process by a number of measures. Although the RLC did not obtain a significantly higher proportion of guilty pleas than in the control courts, more of the guilty pleas obtained in the RLC occurred before the first trial date. These had flow-on effects on general measures of court efficiency: the time taken to a guilty plea was shorter, matters were finalised more quickly, and listing delay was shorter than the general list of the NSW DCC. These results were confirmed through survival analyses which showed that the time taken to reach a guilty plea and to finalise a matter was substantially shorter in the RLC compared to the general list of the DCC.

Stakeholder interviews were conducted to understand which elements of the court contributed to the increased efficiency relative to the NSW DCC. The RLC was designed to deal with many of the structural problems which plague the NSW DCC using fixed teams of practitioners and early briefing which enabled early negotiations between appropriately prepared, authorised and capable legal counsel who had ownership of the matter to the end of its life. The mechanism identified by most interviewees was that guilty pleas were obtained earlier because counsel and clients could negotiate and make decisions before the trial with the certainty that nothing would change closer to the trial date. Defence practitioners said that this was aided by having certainty of which judge would preside over sentencing. Practicing lawyers on both sides found the build-up of trust within teams important for bringing about disclosure and the subsequent resolution of matters. Some interviewees who appeared in the court identified further efficiencies in the ability to list matters flexibly, arising from the shared caseload among practitioners, which also aided in the scheduling of negotiations and discussing multiple matters at a time” (p 13).

“Interviews with prosecution and defence lawyers indicated broad agreement that early guilty pleas occurred more often in the RLC because senior prosecutors who would take matters to trial were briefed early on, and therefore available to negotiate much earlier with their opposing counsel than they would be in the general list.

Defence practitioners in the court said that this gave them confidence that the charges, evidence and plea deals negotiated were unlikely to change between then and the trial date, as both sides were appropriately briefed and authorised, and had carriage of the matter until its resolution. Thus, incentives to delay in pleading guilty were removed as no better deals could be obtained by holding out until the day of the trial.”

“Everyone talks about the benefits that flow from early consultation between defence and prosecution to ensure appropriate charges and to narrow down the issues in dispute. This is the first time I’ve actually seen an initiative which produced that outcome.”

“With the criminal justice system near breaking point due to delays, the District Court needs more than a new case management approach to reduce the backlog. It requires more resources and funding for the Legal Aid Commission and the Courts so that people are adequately represented by senior lawyers at all stages of the criminal justice process and the courts are sufficiently resourced to deal with the workload.”

“It is proper legal aid funding that will result in a significant enhancement to the proper functioning of the criminal justice system as those involved in the system will be able to be represented by experienced counsel who understand how the criminal justice system works and are able to provide assistance to the court. It is also crystal clear that the District Court also needs more judges as that Court is facing a tsunami of cases and has a crushing workload. It is these measures that will reduce delays and in the long term save the community money rather than trial case management procedures that only apply to a fraction of persons facing charges.”