Weighed down by under-resourcing, crippling backlogs and alarming prosecution tactics, Australia’s summary proceedings system has become one that sacrifices speed over fairness.
With finite resources within the criminal justice system diverted to high-stakes, high-harm offences, local courts have been left vulnerable to inaccuracies, unfair prosecutions, and stressed accused persons who choose a quick plea over real justice.
This is despite the overwhelming majority of criminal matters being heard in the summary stream. For instance, in Victoria, 98 per cent of cases were sentenced in the Magistrates Court, according to the Sentencing Advisory Council’s 2023–24 statistical report.
In a session at the National Access to Justice and Pro Bono Conference, Law and Advocacy Centre for Women (LAWC) director of policy and strategic advocacy, Laura Heffes, said more attention should be paid to the summary stream because it is “often the point of early intervention” for the purposes of community protection.
“Resourcing constraints will always exist, but at the same time, we can’t abandon the fundamental ideals of fairness, due process, [and] accuracy; otherwise, we risk criminal justice being a managerial conveyor belt that serves nobody,” Heffes said.
The inequitable distribution of resources has meant summary matters are more vulnerable to inaccurate outcomes and wrongful convictions, particularly when the accused person has come to the courts with a disadvantaged or marginalised background.
In the indictable stream within higher courts, procedural standards are in place to support due process and the meaningful scrutiny of evidence. While disclosure is not perfect, these courts have a timetable in place, it’s made early and is often comprehensive.
In contrast, Heffes said the summary stream “prioritises efficiency and expediency at every stage over due process and actual, meaningful engagement with evidence”. For example, there are barriers to adequate disclosure and meaningful engagement with the evidence due to the nature of the prosecution service.
“There’s no consistency of prosecutor, and that means it touches multiple people who are not invested, don’t care, don’t do the work, and it takes quite a long time for any prosecutor to meaningfully engage with what evidence exists, if there is any at all.
“What that means is there’s very rarely a scrutinised and true basis for guilt until way down the track,” Heffes said.
Former magistrate Rob Stary observed an assumption that what has been presented to the court is “objective and true”. This is in addition to a “complete lack” of preparation, consistency, and continuity.
“What brought it into stark reality to me was the complete erosion of any presumption of innocence. The system does not lend itself to someone exercising that right unless they are well-resourced. The system has so many interlocutory steps now, and you have got to be well-resourced to fund each stage of the proceeding,” Stary said.
In this context, accused persons – and especially the vast majority who are unrepresented – have become so worn down that they would often “capitulate at the end and plead guilty”, Stary added.
Another of the alarming features of the summary stream for Stary was how often prosecutors concluded they had insufficient evidence to support a conviction but offered the diversion program – which has accused persons avoid conviction if they complete some conditions.
“What I saw while on the bench were prosecutors giving advice from their perspective and in good faith to an accused person, saying we don’t think you have an arguable offence, you should plead guilty, you’ve got a good magistrate, we will put in a good word for you.
“That’s an unsuspecting person, particularly where they have no prior history, who is being guided by what the prosecutor says,” Stary said.
Speaking to Lawyers Weekly, the principal and director of Elbob & Stephenson Lawyers and EAS Legal, Joseph Stephenson, said the offer of diversion was a “very common pet peeve” of his.
Another diversion feature Stephenson has seen was prosecutors offering the program even when they know the magistrate will not approve it, either because of the accused person’s prior history or the nature of the offence they have been charged with.
“What that does is then force an unrepresented person into a bit of a position where they will accept the diversion, it will go before a magistrate, the magistrate will refuse the diversion, and that poor person is now before the court saying, ‘OK, what do you want me to do?’
“[They’re told] you’re going to contest or plead guilty, and most people will then plead guilty,” Stephenson said.
In some cases, it is not the overall penalty they accept with the guilty plea that hits hardest. Instead, Stephenson explained its ancillary matters that go with it, such as compensation and forfeiture orders for seized goods, sex offender registration duration, or whether a vehicle will be impounded under the offence-related legislation.
Stephenson chalked a lot of what’s wrong with the summary stream up to how the system is set up, telling Lawyers Weekly that matters often sit in multiple mentions – or what he called a “holding pattern” – because prosecutors are not ready, or unrepresented people do not have the information they need to advance their pleas.
“It can come down to the complexity of the system as well. If you have never been through the court system or dealt with prosecutors or dealt with mentions and contest mentions and things like that, it can be a completely foreign language,” Stephenson said.
Stephenson said the mention stage has not accomplished what it should be, which is from a culmination of factors, including “backlog of the courts, under-resourced prosecutors, people who are self-represented and not understanding the process as well”.
“It’s creating this storm of inefficiencies,” Stephenson said.
Looking ahead, Heffes said police should not be prosecuting their own matters, there should be an improvement on disclosure, and bail laws should be fixed so “we’re not warehousing people on remand for offences that do not warrant a term of imprisonment”.
Courts should also be looking to “vastly improve” their data collection so guilty trends can be assessed and researchers can determine whether these trends validate the systemic problems that legal professionals are observing across the country.
Heffes said data is “extremely rudimentary” at the summary stream stage, and often accused persons will not appeal either because they cannot afford a lawyer or the penalties are relatively minor.
“So we’re talking about a situation where the jurisdiction – which is at the greatest risk of inaccurate outcomes and wrongful convictions – is the system where we have absolutely no way of interrogating the prevalence of that,” Heffes said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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