The summary offence game with police and prosecutors.

Criminal justice tends not to discriminate when it comes to the laying of police charges and the prosecutors' ability to prove those charges. Whether you have a clean criminal record or have been before the courts previously, you are treated the same.

Where circumstances seem genuinely unfair, we’ve often been told by prosecutors that “it’s not about fairness.”

Sausage factory justice

The “summary” stream of the court system can be likened the worst company you’ve ever done business with. Poor customer service, little directional signage, stone-faced staff with little patience for having to explain what is to them the obvious.

There is no purported ideal “experience”, no net promotor score sought from the customer at the end of their hearing, no friendly follow up emails.

On any given day the “accused” persons are told to be at court at 9.30am – the time dutifully written on their charge sheets or court attendance notices. For the first-time accused, they would be led to think that their matter will be heard at that time. Like an appointment time to be kept in any general business.

Not at the Magistrates’ or Local Court. Havoc and confusion is the daily staple to be consumed. Likening it to live cattle exports, everyone is forced into an enclosed space at the same time and one by one drip fed past a magistrate. The sheer volume of people places pressure on prosecutors and magistrates to clear the daily work load by end of day.

Never assume competency

As criminal defence lawyers, we are constantly exposed to inconsistency in the skilful application of the law. Whether by police laying charges, prosecutors prosecuting or withdrawing those charges, and magistrates sentencing those who are guilty of offences.

The overarching safeguard is a right to appeal any decision to a higher court. But this is more time and money that few people can stomach with the catch cry “I just want it over with” commonly pronounced.

But the consequences are great both short term and long term. Not wanting to risk being found guilty at a contested hearing or trial, many people facing charges decide to plead guilty instead. They hope that such a plea will give them a “without conviction” sentence.

The only pressure release is for prosecutors to withdraw charges so as not to risk the accused seeking costs against them if they were to lose.

Rolling the dice

Unfortunately throughout the whole process luck plays a big part with police and prosecutors.

Luck that the police officer:

• Charges the right person – we’ve experience clients who were assaulted and then had charges laid against them as the instigator;
• Understands the context of an offence and decides not to charge;
• Is objective and keeps their emotions in check;
• Recommends the person for Diversion (a process that leads to charges being withdrawn ultimately).

Luck that you get a prosecutor who:

• Knows the law;
• Doesn’t make up the law;
• When presented by a defence lawyer with the law, finds it all too hard and just defers a decision to a Magistrate;
• Has authority to make a decision;
• Is objective and keeps their emotions in check.

Example cases

To give an example, our client of sudanese background was riding a motorbike without a licence. A drunk Australian rules footballer illegally walked across our client’s path and he came off the bike.

Our client sustained injuries that left him in hospital for two days. Our client was charged and forced to front court, the footballer was given a fine (with the full PR machinery of his club in action).

We alleged that there was a bias in the charging police to providing leniency to a well known sports person. When explaining the situation to the prosecutor, all they said was that it had nothing to do with fairness.

We raised the issue with the magistrate who was sympathetic to our client and fined him, did not interfere with his drivers licence. However he gave him a driving conviction for riding unlicensed.

In another example, another client of sudanese background was charged with assault. On examining CCTV footage the alleged victim is shown pushing our client. The police recommended Diversion, however our this would have jeopardised our client’s desire to work in the security industry.

We rejected Diversion and informed prosecutors we will contest the charge. Ultimately the charge was withdrawn but on the condition of our client not seeking costs. While this was a good outcome for our client, he still had to bear the unfair cost of challenging what should never have been charges brought upon him in the first place.

Bringing fairness back into the system

We emphasise that there are many excellent police and prosecutors. At the same time, for the accused person, the stakes are high. Criminal records are lifelong and most employers now undertake police checks which can affect the employability of convicted persons.

Prosecutors need to be a greater check and balance on the police who lay the charges, too often they side with the charging officer.

There needs to be a process at the prosecutor level where there can be an appeal against the charges being laid in the first place. This should be only for people who have been charged with lesser crimes in arguable circumstances where fairness is an issue. And where it is highly likely that they will never be a return customer to the court system.

The appeal should be considered by a third party prosecutor (at a different location to the court hearing the charges) with the discretion to withdraw charges on the basis of fairness and where the accused is of good character.

The discretion should be allowed where there is no victim, or the victim negatively contributed to the offence faced by the accused. The prosecutor should be highly skilled in the law and the social impact of criminal convictions for different classes of accused persons.

The net effect

Such a reform would lead to a reduction in the casework before magistrates and court prosecutors, and lead to greater faith in the criminal justice system by society at large.

The net effect will result in better decision making at the police and prosecutor level in knowing that their decisions are under scrutiny by an overriding influence. But this is before the “all or nothing” stage of running a contested hearing which leads to many people pleading guilty even when they do not believe they should.