Shannon Deery: Backlog of court cases a political nightmare for state govt

Senior judicial figures have been lobbying for extra money and resources to clear a backlog of cases. And unless something is done, it will be bail for all.

For months senior judicial figures have been quietly lobbying the government for extra money and resources to help clear the build-up of 200,000 cases now waiting to be heard.

The backlog of court cases plaguing Victoria’s criminal justice system is turning into a political nightmare for the state government.

For months senior judicial figures have been quietly lobbying the government for extra money and resources to help clear the build-up of 200,000 cases now waiting to be heard.

But a warning shot was fired very publicly last week in the state’s top court: do something or even those accused of serious crimes will start walking free.

In the Supreme Court last week, three alleged crooks tried to use the COVID-19 pandemic as their get-out-of-jail card.

It didn’t work for the 15-year-old facing serious assault and affray charges who was picked up while on bail for a string of other offending. Nor for the 16-year-old charged over a terrifying carjacking and remanded in custody. But it did work for the man accused of commercial drug trafficking who had already breached bail once.

And on the back of the stunning judgment, you can bet the two teens, and potentially countless other prisoners on remand, will now seek their shot at freedom.

In granting bail Justice Lex Lasry, by far one of the state’s most experienced judges, cited the “inordinate” delay in bringing the matter to trial. And he said such a delay would “demonstrate exceptional circumstances in almost every case”.

A plan to send County Court judges to the suburbs is a part of an idea to fast-track cases.

Judges must refuse bail to anyone facing serious charges unless they can establish “exceptional circumstances” that justify the granting of bail.

If satisfied they exist, judges must then make a risk assessment and determine whether or not the risk to public safety is acceptable.

Getting over the exceptional circumstances test is generally the bigger hurdle for those chancing their luck at freedom.

In this case Justice Lasry admitted he harboured “serious reservations about the applicant’s ability to comply with conditions of bail given his history.” But he imposed a range of strict bail conditions on the man, including that he live in a drug rehab facility, satisfying him the risk was mitigated to an acceptable level.

It’s one thing when alleged crooks are holed up in prison awaiting their day in court. It’s a different ball game when they are being bailed because of unprecedented delays in the system. Particularly when judges are lining up to offer solutions on how to fix the problem.

They want money, more judges, and space. Space is critical, particularly in trial courts that have been reduced to half their capacity because of COVID-19 distancing requirements.

One bold plan was to convert unused office space across the city into temporary court rooms. A massive exercise, but one judicial figures expected would slash the backlog.

Trimming juries and giving bigger sentence discounts for early pleas are among other ideas that have been floated.

A proposal to build new courts has also been raised, as has a plan to send County Court judges to the suburbs to fast-track cases.

Extra funding for courts will inevitably lead to fierce debate.

Attorney-General Jaclyn Symes has said money alone won’t fix the problem.

She’s also pointed to $80m in funding to help more matters be resolved outside of court, support remote hearings and fast-track matters. It includes $12.47m for initiatives to resolve more matters earlier, and $44.21m to support the digital transformation of courts.

Another $24.15m went to initiatives including expanding the Online Magistrates’ Court.

But clearly whatever has been invested so far just isn’t enough.

And unless something changes, it will be bail for all.

AND ANOTHER THING

On the subject of courts, a proposal to alter Victoria’s sex offender register scheme has sparked widespread panic. Not least among the government who were quick to rule out any changes to the sex offender register last week, fearing a looming public backlash.

Under a proposal by the County Court, backed by a raft of legal bodies, judges would be given the discretion to exclude or remove offenders from the register.

The proposal has been put to the Victorian Law Reform Commission, a statutory authority that is the central agency for law reform in Victoria.

That the government has already ruled out any changes to the sex offenders registration scheme appears to undercut its whole reform process.

But it seems to be just the latest of many examples of the government’s willingness to run roughshod over the separation of powers.

Daniel Andrews has more than once raised eyebrows with his willingness to cut across the judicial process. In 2019 he urged the Director of Public Prosecutions to consider appealing a decision not to jail a man who had assaulted emergency workers.

Comments he has made around other high-profile cases, including those of George Pell and Malka Leifer, have also sparked concern among senior judicial figures.

Yet the government is just as quick to deflect to due process or shield behind inquiries when the heat is on.

There exists a separation of powers for a reason.

To undermine a reform process in the middle of an inquiry seems to do little more than undermine the government’s own work.

SHANNON DEERY IS HERALD SUN STATE POLITICS EDITOR