PERSPECTIVES ON THE CHANGING ROLE OF THE JUDICIARY IN COORDINATING CRIMINAL JUSTICE
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PERSPECTIVES ON THE
CHANGING ROLE
OF THE JUDICIARY
IN COORDINATING
CRIMINAL JUSTICE
Warwick Soden
THROUGHOUT AUSTRALIA, THE ROLE OF THE JUDICIARY IN COORDINATING
criminal justice is changing. In addition to undertaking the usual judicial
functions, the judiciary is becoming increasingly involved in coordinating
matters concerning the administration of criminal justice and that involvement
leads into areas which traditionally have been the responsibility of others.
Historically, when a procedure, policy or practice of a criminal justice organisation
has been found during the course of proceedings before the court to be in need of
change, comments concerning the desirability for change have been made by the
judiciary, either during the proceedings or in a judgment and those comments were
made with the expectation that some appropriate authority would consider the
suggestions. Whilst some matters received immediate attention (particularly if the
comments attracted the attention of the media and involved issues currently on the
political agenda), not surprisingly, the majority of comments disappeared into
bureaucratic processes, most never to surface again.
In the past, it was not expected by the judiciary that a reporting system concerning
the suggestions would occur as it was considered that the matters raised were the
responsibility of others.
Apart from the traditional consultation between the Executive and either the Chief
Justice or the heads of jurisdiction in respect of policy proposals that affected the
courts, the judiciary has not usually been involved in any coordinating role. The
traditional scenario has changed and is changing in parts of Australia.
This paper discusses the extent of the increasing involvement of the judiciary in
coordinating criminal justice and considers some of the reasonsCriminal Justice Planning and Coordination
for the changing role. It concludes with perceptions about the likely future role of the
judiciary in coordinating criminal justice.
The Driving Force Cost And Delay
Delay in criminal proceedings, particularly in the higher courts, still is at the top of the
agenda for all organisations involved in criminal justice. In courts, delay in criminal
trials and initiatives to overcome those delays has been the driving force behind the
increasing involvement of the judiciary.
In most states of Australia and in most higher courts, special delay reduction
programs have been implemented. A comprehensive analysis of those initiatives and
programs will be found in Sallmann (1992), Managing the Business of Australian
Higher Courts.
The United States Management Model
Many publications concerning delay reduction program and case-flow management
emanate from the United States. Much attention has been given to the problems of
delay in the United States and organisations involved in supporting courts or providing
consultancy assistance to courts, have designed and published information about the
elements of delay reduction programs.
The leading publication (American Bar Association 1986, Defeating Delay,
Developing and Implementing a Court Delay Reduction Program) has been used as a
guide in some courts in Australia, including, in particular, the Supreme Court of NSW
and the District Court of South Australia.
In this publication guidelines concerning building the design team, designing the
delay reduction program planning for implementation, and sample delay reduction
plans are included.
In relation to building the design team, the following principles are recommended:
n The first important concept for the delay reduction programming is that the
court must control the pace of litigation;
n The key to an effective delay reduction program is committed leadership; and
n Since it is the judges who must be responsible for the pace of litigation, it is
the judges who must be the formal leaders of the reform effort.
In relation to the agenda for any delay reduction program design team, the
following principles are recommended in Defeating Delay:
n Time standards, which are the goals of a delay reduction program, must be
adopted. Achieving substantive justice in individual cases must be a stated
goal of the program;
124Perspectives on the Changing Role of the Judiciary
n An in depth analysis of the current caseload must be completed;
n After statistical analysis identifies the location of delays, then the specific
reasons for the delays may be determined (Weatherburn 1993);
n Although many techniques exist to attack delay, the heart of all programs is
active caseflow management (the term caseflow management denotes
management of the continuation of processes and resources necessary to
move a case from filing to disposition whether that disposition is by
settlement, guilty plea, dismissal, trial or other method. It is concerned with
active attention by the court to the progress of each case once it has been
filed with the court);
n A monitoring system must be established which is as simple as possible while
still providing the information needed for management of the caseflow;
n Date certain scheduling of cases is necessary. Counsel must believe that the
cases will be heard when scheduled;
n A firm adjournment policy is required for high productivity.
The recommendations in Defeating Delay concerning the planning for
implementation of a delay reduction include matters relating to administration, lines of
communication with system organisations, specific responsibilities for system
participants, training programs and education initiatives.
The author's purpose in highlighting the elements included within a delay
reduction program is to emphasise the extent of involvement by the judiciary in such
programs and to show how the programs involve in principle the need to coordinate
matters and the organisations involved in the administration of criminal justice.
There are many examples from the United States of how courts can succeed in
reducing delay in criminal proceedings (see Hewitt, Gallas & Mahoney 1991). Earlier
empirical work in the United States established common elements in those courts
which successfully reduced delay (Mahoney 1988). Those elements were:
• Leadership;
• Goals;
• Information;
• Communications;
• Caseflow management procedures;
• Judicial responsibility and commitment;
• Administrative staff involvement;
125Criminal Justice Planning and Coordination
• Education and training;
• Mechanisms for accountability;
• Backlog reduction inventory control.
In relation to communication Mahoney states:
Delay reduction and delay prevention programs are not undertaken in a vacuum. If
there is any one lesson from the research and experimentation of the past decade, it
is that good communications and broad consultation within the court (including
both judges and staff), between the trial court and state level leaders, and with the
private bar and key institutional actors such as the prosecutor and public defender
are essential if a program is to succeed (Mahoney 1988).
The later research in 1991 mentioned above confirmed elements for successful
courts:
The ten elements are interdependent and, except for leadership goals, without an
implied hierarchy. Leadership and goals are the hub of an eight-spoked wheel,
signifying the centrality of these elements within the synergistic character of the
whole (see Hewitt, Gallas & Mahoney 1991).
Figure 1
Common Elements of Successful Programs: A Synergistic Relationship
Source: Hewitt, Gallas & Mahoney 1991
126Perspectives on the Changing Role of the Judiciary
In the courts studied in the publications mentioned, the coordination of criminal
justice agencies arose, amongst other things, as a result of the element of
"communication".
The point I wish to make is that there is a need to coordinate to be successful.
That need results in communication between the judiciary and other justice agencies.
The Australian Models
Whilst empirical research is yet to be conducted in Australia in relation to the elements
of successful courts, there is evidence of success for the same reasons identified in the
United States studies and, not surprisingly, the United States models of success, have
been adopted.
The District Court of South Australia has adopted the United States model.
The Caseflow Management rules are almost identical for the Supreme Court and
the District Court and, for ease of reference, are set out below:
Caseflow Management
5.01 These Rules are made for the purpose of establishing orderly procedures for
the conduct of the business of the Court in its criminal jurisdiction and of
promoting the just and efficient determination of such business. They are not
intended to defeat a proper prosecution or to frustrate a proper defence of a person
who is genuinely endeavouring to comply with the procedures of the Court and
they are to be interpreted and applied with the above purpose in view.
5.02 With the object of:
(a) promoting the just determination of the business of the Court;
(b) disposing efficiently of the business of the Court;
(c) maximising the efficient use of the available judicial and administrative
resources; and
(d) facilitating the timely disposal of business at a cost affordable by the parties
and the community generally;
proceedings in the Court will be managed and supervised in accordance with a
system of positive caseflow management. These Rules are to be construed and
applied and the processes and procedures of the Court conducted so as best to
ensure the attainment of the above objects.
5.03 The system of caseflow management is directed towards achieving the
disposal of the business of the Court in accordance with the following standards:
(a) That 90 per centum of the cases of persons committed for trial should be tried
to verdict within 90 days of that person's first appearance in the Court.
127Criminal Justice Planning and Coordination
(b) That 98 per cent of the cases of persons committed for trial should be tried to
verdict within 180 days of that person's first appearance in the Court.
(c) That all of the cases of persons committed for trial should be tried to verdict
within 365 days of that person's first appearance in the Court.
(d) That 90 per centum of all persons committed for sentence should be
sentenced within 60 days of that person's first appearance in the Court.
(e) That all persons committed for sentence should be sentenced within 90 days
of their first appearance in the Court.
In the Supreme Court of New South Wales, the United States model has been
applied, but not to the same extent as the District Court in South Australia.
Whilst most of our efforts have been devoted to civil proceedings in the Common
Law Division, we have some plans in relation to crime and, in that regard, it will be
similar in many aspects to the South Australian approach. Our system will be known as
Differential Case Management and early discussions have taken place with other
criminal justice agencies. It will include the same principles as applied in South
Australia.
It is important to note, however, that like all other models mentioned, the
Supreme Court is taking the lead and is involved in coordinating other agencies in
delay reduction initiatives.
Additionally, the establishment of the Department of Courts Administration in
New South Wales has resulted in an increased involvement by the judiciary in
committee work concerning criminal justice issues across agencies. For example,
committees are presently involved in matters relating to videotaping of police records
of interviews, and, a bail application video link between the Supreme Court and Long
Bay Gaol. Not surprisingly, the judges on the committees tend to take a leading role.
A Different Approach To Understanding The Changing Role
Where does the buck stop? Who or what is responsible for coordinating criminal
justice? Who does the community view as responsible for effective criminal justice?
Who is responsible for balancing the need to administer individual justice in individual
cases against the need to protect individuals from the arbitrary use of government
power?
The simple answer to all of these questions is government. But what is
government? Is it the Parliament, the Executive and the Judiciary? If one asked the
same questions of the different arms of government a variety of answers would be
received. The important and relevant consideration, however, is what the public thinks.
If the public were asked the same questions it is likely that the overwhelming view
would be that the courts (and therefore the judiciary) were responsible. The media also
plays a role in creating that understanding.
128Perspectives on the Changing Role of the Judiciary
If the proposition is accepted that the public at large perceives the courts as being
responsible for the administration of justice, how then do courts measure their
performance and how should they measure their performance?
Courts have been exposed to extensive scrutiny and publicity in recent years.
There have been inquiries into courts, the litigation process, the legal system, the legal
profession and administration supporting courts. With continuing concern about cost
and delay, further examination is inevitable.
In the Supreme Court of NSW, many representations were received directly from
litigants at the time when delays were at their worst and those representations asked,
what was the court doing about the problem? As it is well known, the court has taken
up the challenge.
The fundamental difference to the laissez-faire approach is the way in which, as a
matter of policy, the Court has taken control of the pace of litigation which involves
dealing with issues concerning coordination of agencies involved in the process.
Related to taking control for the purpose of managing is the extent to which and way
in which effort and resources are deployed.
In the United States models are available (for example, National Centre for State
Courts, 1990, Trial Court Performance Standards, with commentary) and standards
have been established for access to justice, expedition and timeliness, equality, fairness
and integrity, independence and accountability, and public trust and confidence. As
well as standards, performance measures have been developed which include measures
to evaluate public opinion concerning, for example, standards of public trust and
confidence.
Although the performance standards of the kind developed in the United States
have not been adopted, performance standards for courts in Australia are under
consideration (for example, 1992/3 Corporate Plan, NSW Department of Courts
Administration). The relevance of the issue of performance standards to the role of the
judiciary in coordinating criminal justice is related to the concept of courts taking
control of the pace of litigation. Courts and the judiciary are measuring performance
against expectations, particularly in relation to delay reduction, and the next step is not
far away. Greater measurement of performance against public expectations will lead to
greater involvement by the judiciary in coordinating other agencies. The United States
experience seems to be a good guide following the adoption in Australia of the delay
reduction program models mentioned above.
Conclusion
On a final note, changes to the way in which courts are managed will lead to greater
involvement of the judiciary into areas where the Executive has traditionally been
responsible. (See Sallmann and Church, 1991).
As the administration of courts changes, together with the case management
procedures implemented, it will be inevitable for the judiciary to become more involved
in coordinating criminal justice.
129Criminal Justice Planning and Coordination
References
American Bar Association 1986, Defeating, Delay, Developing and Implementing a
Court Delay Reduction Program, The Task Force.
Commission on Trial Court Performance Standards 1990, Trial Court Performance
Standards National Centre for State Courts, Williamsburg Virginia.
Hewitt, W.E., Gallas, G. & Mahoney, B. 1991, Courts that Succeed, National Centre
for State Courts, Williamsburg, Virginia.
Mahoney, B. 1988, Changing Times in Trial Courts, National Centre for State Courts,
Williamsburg, Virginia, p. viii..
Sallmann, P.A. 1992, Managing the Business of Australian Higher Courts, Australian
Institute of Judicial Administration.
Sallmann, P. & Church, T.W. 1991, Governing Australia's Courts, Australian Institute
of Judicial Administration, Melbourne.
Weatherburn, D 1993, "Grappling with court delay", Crime and Justice Bulletin, no.
19, NSW Bureau of Crime Statistics and Research.
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