WA legal system groaning as shortages of silk, courtrooms bite

It is now taking on average 64 weeks for criminal matters to get to trial in WA’s District Court, as lawyers say delays are coming at a significant cost to taxpayers.

A push by WA Attorney-General John Quigley to bolster the state's number of judges has contributed to a shortage of defence lawyers.

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Western Australia’s criminal justice system is coming under acute pressure as a shortage of experienced defence lawyers and the rising complexity of cases blow out the wait time for trials.

It is now taking on average 64 weeks for criminal matters to get to trial in WA’s District Court – double the target of 32 weeks – while Supreme Court criminal matters are taking more than 40 per cent longer than aimed for.

Multiple lawyers who spoke to The Australian said the delays in bringing cases to trial were coming at a significant cost to taxpayers, given the increased amount of time that accused defendants are having to spend on remand.

The delays were laid out in the latest annual report from WA’s Department of Justice, which attributed them to the “limited availability of accused counsel for trials”, the complexity of cases, an increased number of pre-trial hearings and a shortage of criminal jury trial facilities.

A push by WA Attorney-General John Quigley to build out the ranks of judges and magistrates in the state to help address the rising number of cases in the state has also had a knock-on effect on the number of senior counsel available to handle complex criminal cases. Much of the state’s criminal silk are now sitting on the other side of the bar table, leaving a diminished pool of experienced defence counsel available.

The pressures have also reignited debate about the rates offered by the state’s Legal Aid service, which is paying only a sliver of the rates typically available in the private market.

The issues in the west come amid an ongoing crisis in the Northern Territory justice system, with Legal Aid NT having warned that it would stop accepting new adult clients from January due to insufficient funding.

The 64-week wait time in the WA District Court compares to the average 46.5 week wait in the same court in NSW.

Senior Perth criminal lawyer Tony Elliott, who is also the president of the Criminal Lawyers Association of WA and who is on the criminal committee of the Law Society of WA, told The Australian that finding defence counsel in Perth with three decades or more of experience was now “almost impossible”.

“It’s making life exceptionally difficult,” he said. “Because you’ve got a full rank of judges and magistrates, they’re trying to push things along. They’ve got the capacity to do things, but we don’t.”

The low rates offered by Legal Aid meant there was a significant financial cost to take on those cases. The delays in progressing matters to trial, he said, was not in the interest of taxpayers.

“If you’re on remand waiting to have your court date, and there aren’t lawyers who can do the work, you might be in prison for two years waiting for that to happen,” he said.

“Most people are going to go, ‘Well, he did the crime, we don’t care’. But a number of these people are going to be found not guilty, and those two years in custody are a lot more expensive than paying lawyers.”

Mr Quigley said the District Court was taking a number of steps to address the wait times, including overlisting matters, allocating longer circuits in regional areas, and prioritising matters involving accused in custody or vulnerable witnesses.

Judges handling civil matters are reallocated to criminal trials, while the Supreme Court is helping the District Court with criminal trials “where possible”.

“Clearing the backlog of criminal trials is a matter of great importance to me as the State’s first law officer,” Mr Quigley said.

Veteran Perth lawyer Tom Percy KC – who along with Mark Trowell KC and Simon Freitag SC is one of only three silk listed on the Legal Aid WA panels for sex offences and serious indictable offences – said technological advances meant modern criminal trials take far longer to hear.

Tom Percy KC. Picture: Chris Kidd

The arrival of DNA evidence, CCTV footage and records of interview mean modern cases are longer and more complicated, he said, while the time it takes judges to address juries before they begin their deliberations has also blown out.

“The average direction from a judge to a jury is half a day. I mean, we used to do entire cases in half a day,” he said.

The “minuscule” discount of 25 per cent offered to offenders for early guilty pleas, he said, also meant more accused were willing to “roll the dice” on a trial.

Barrister Claire Bass said many of the issues linked back to the state of Legal Aid, with both “woeful” pay rates and the organisation’s rules around who is eligible to accept Legal Aid work adding to the pressures.

“The rates have fallen behind inflation at a pretty strong rate, such that a lot of people simply don’t have capacity to take on as much legal aid work as they otherwise would if it was comparable to the private market rates that they can enjoy,” she said.

In her role at a previous firm, she would frequently encounter people who had been sitting in jail without having a bail application made on their behalf. Securing bail for them would often be a simple exercise, sometimes with the consent of prosecutors.

New eligibility rules introduced in 2014 required lawyers to be able to show they had at least five years of criminal experience, including conducting jury trials, before they could be added to the panel of lawyers available to do legal aid work on sex crimes or other serious offences.

The changes were made after a review of similar arrangements in New Zealand uncovered significant systemic abuse across the system, and raised concerns about the amount of complex legal aid work being taken on by inexperienced juniors.

Some lawyers, however, believe the changes have slowed the development pipeline by making it far more difficult for those earlier in their careers to gain experience.

Ms Bass says she has heard young lawyers complain about the difficulty in convincing clients to take them on for private work when they haven’t even done a legal aid jury trial.

“They can’t get the experience to get on the panel without somebody trusting them to run their first jury trial, and therefore have to wait until the private market trusts them before the Legal Aid panel can trust them. That’s incredibly inflexible,” she said.

“And for the people that are on the panels, they often end up feeling really overwhelmed by the amount that they’re asked to do, because there’s not enough people that can share the load.”

A spokeswoman for Legal Aid WA said the eligibility rules were important to maintain public confidence in the system and ensure that both prosecution and defence could present a competent case at trial.

“Legal Aid WA also has an obligation to ensure that when spending public funds on the provision of legal services, the practitioner engaged has the necessary skills and experience to undertake the work,” the spokeswoman said.

“Failure to ensure practitioners undertaking legal aid work have sufficient experience relevant to the complexity of the matter could potentially lead to more retrials and appeals on the basis of incompetent counsel and increase the potential for miscarriages of justice.”

The pressure in the WA system has been accentuated by a shortage of suitable court facilities.

Criminal trials are expressly prohibited within the Supreme Court’s David Malcolm Justice Centre, which opened in the Perth CBD in 2016, under an agreement struck by the previous Liberal government.

It means Supreme Court criminal matters are frequently heard inside the District Court building. One judge’s office inside the District Court building has been set aside to accommodate Supreme Court judges who have to hear matters there.

Mr Quigley said the government had inherited a “critical” shortage of criminal courtrooms in the Perth CBD.

“It was a flawed decision to build the multi-32 level building, which is not fit for purpose and can only accommodate civil matters,” he said.

“Resolving the challenges around court accommodation in the Perth CBD remains a priority for this government,” he said.