The Penrith District Court approach to efficiency in trial management[1]

His Honour Judge S Hanley SC[2]

This article describes the manner in which the author conducted Penrith District Court as the List Judge and outlines lessons learnt in achieving efficient trial management. A number of judges who were to be sitting judges in regional courts spent time at the Penrith District Court to observe the running of a small court. These approaches to trial efficiency formed the basis of Practice Note DC (Civil) No 1.

Prior to arraignment

The chief means of achieving efficient trial management is to get the parties to begin communicating with each other at an early stage to identify the issues, resolve what can be resolved, and determine which witnesses will be required. Communication between the parties is essential.

This process is most effectively initiated by the judge reading the prosecution file or Crown case statement before the arraignment. At this point of the criminal trial process, the trial judge can identify what he/she thinks are the issues etc and direct the parties to address these and any other identified issues before the call over.

At arraignment

At arraignment, a timetable is set for the defence to advise the Crown in writing what (if any edits) they require to Electronically Recorded Interviews of a Suspected Person (ERISPS) or child interviews if they are to be led as evidence in chief at trial; when expert evidence or Notices are to be served by; to identify any outstanding Crown requisitions; and to set a timetable for that material to be served on the defence. The parties should confirm that these are timetables they believe can be realistically met.

Lead up to the call over

Thereafter and leading up to the call over, the parties should be in communication with each other to resolve or reduce these issues, agree on “Facts” that can be tendered, and determine which witnesses are required.

The ability to talk to your opponent requires knowing who your opponent is. The manager at the Penrith DPP office allocates briefs to the Crowns and Trial Advocates up to 6 to 9 months in advance. This ensures there is no excuse for the defence being unable to speak to their opponent.

Call over

Each trial is different and effective management requires a flexible approach to call over management, the timing in respect of the prospective trial date, and the need to have more than one call over to resolve the identified issues. The completion of s 143 forms by the defence does not seem to achieve this purpose.

Call overs are effective if both parties are aware that the judge has read the file and they come prepared to answer questions posed by the judge in respect of trial management and issue resolution. I may have several call overs for a particular matter if it appears to require staged control of the matters to be addressed, and to allow time for the realisation that a plea of guilty is the more appropriate course.

Only counsel or solicitors instructing in the trial are to appear on call overs. They can appear from anywhere at 9:30 am if they want to utilise virtual meeting rooms (VMR). Agents are a waste of time.

Improved trial efficiency at the Penrith District Court

This approach at Penrith District Court has resulted in:

  • pleas occurring earlier in the process after committal for trial

  • both sides being prepared before the trial date

  • an early resolution between the parties of prospective legal arguments

  • agreement as to the editing of ERISPS and witnesses interviews

  • agreement as to an “Agreed Facts” document to be tendered

  • reduction in the number of witnesses required, in particular expert witnesses. Some of those required to appear do so via VMR

  • a reduction in the late service of new prosecution material as requisitions by the DPP on the NSW Police Force are made at a timely and advanced stage in the process

  • trials start on Monday which is crucial as the Fridays List day cannot accommodate a trial also taking place. If there are any outstanding legal issues that the parties cannot resolve before the trial date they are usually limited and resolved by the trial judge on the trial day and in time for the trial to commence on Monday morning,

  • the original estimate of the trial has been significantly reduced so that most trials are completed in 4 days. This is qualified by the fact Penrith District Court does not list trials that are estimated to go on longer than 10 days.

[1] Paper presented at the District Court of NSW Annual Conference, 23–24 April 2019.

[2] Judge of the District Court of NSW