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20 Aust. & N.Z. J. Criminology 1 (1987)

handle is hein.journals/anzjc20 and id is 1 raw text is: AUST & NZ JOURNAL OF CRIMINOLOGY (March 1987) 20 (1-2) EDITORIAL Pre-Trial Decision Making The pre-trial area in the criminal justice process covers the events between criminal investigation and the trial or court hearing. It commences with the decision to charge and includes such matters as the committal hearing, plea-bargaining and pre-trial disclosure. It is an area of obvious importance in the criminal justice process. Despite its importance, it has until recently received comparatively little attention in Australia. In 1980 the Australian Law Reform Commission in its Report, The Sentencing of Federal Offenders (at p 6) described the process of prosecution in Australia as probably the most secretive, least understood and most poorly documented aspect of the administration of criminal justice. Over the last few years, however, the situation has changed considerably and much of the pre-trial phase of the criminal justice process has come under close scrutiny. There are many reasons for this new interest. It is, no doubt, part of the overall examination of the whole criminal justice process which has been occurring in Australia over the last decade or so. It is also an area which offers scope for cost-saving and efficiency measures to governments and criminal justice administators. In addition, there has been of late a number of highly public cases which have focused public interest on the pre-trial area. The trials of the late Lionel Murphy, a High Court judge, and of Norm Gallagher, a prominent union official, provoked considerable discussion about the appropriate criteria for laying criminal charges. Developments and changes have occurred and are occurring in this area. For example, in 1982 the Commonwealth Attorney-General published a set of guidelines entitled Prosecution Policy of the Commonwealth. These guidelines dealt with such issues as the criteria to be used in determining the charges to be laid; the granting of indemnities or pardons to witnesses; and plea-bargaining. These guidelines have since been replaced by the 1986 guidelines prepared by the Commonwealth Director of Public Prosecutions. However, the 1982 guidelines opened up the whole area of prosecution policy and brought a number of sensitive and rarely discussed issues (such as plea-bargaining) into the public arena. The creation in some jurisdictions of the position of Director of Public Prosecutions has been an acknowledgement of the importance and often sensitive nature of pre-trial prosecutorial decisions. In 1985, the Victorian Shorter Trials Committee, whose brief was to consider and make recommendations concerning methods of shortening criminal committals and trials and of rendering such proceedings less expensive, devoted over half of its Report on Criminal Trials to the pre-trial area, with separate chapters on the decision to prosecute, pre-trial disclosure, the sentencing discount for pleading guilty, and plea-bargaining. In December 1986, the New South Wales Law Reform Commission produced a Discussion Paper entitled Procedure From Charge To Trial: A General Proposal For Reform. The Discussion Paper outlined a number of problems which it saw in the pre-trial area. These included: the absence of comprehensive rules governing disclosure of information by the prosecution; problems in determining whether a case should be heard summarily or on indictment; the failure of committal hearings; 1

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