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Case Dismissed! Failures of the Major Indictable Criminal Law System

It’s opinion piece time from that “lawyer with the beard”

A constant battle we as lawyers are having right now is explaining to our clients who have been charged with Major Indictable offences why there are continuing delays in their matters.Major Indictable offences are more serious crimes where a defendant has a right to a trial by jury. In 2018 there were major amendments to the way we process Major Indictable offences in South Australia – many would say that this new system is not working.

For some time now it has seemed that the MIBU (Major Indictable Brief Unit) – a special branch of South Australian Police tasked with managing Major Indictable charges and the DPP (Director of Public Prosecutions) have no respect for time frames imposed by the courts. This was a submission made to the local Magistrate on Monday 20 May 2019 prior to charges being dismissed.

A Mount Gambier matter has made headlines in the local newspaper today after five men charged with multiple drug trafficking offences had their charges dismissed and walked from court free men. Some of these men were arrested and charged roughly 12 months ago. It is unclear how long each of these men spent in custody nor is it clear how long each man spent on restrictive Home Detention bail conditions. What is clear is these men have unfortunately been subjected to the significant flaws of the Major Indictable reform.

Under the current system, at the time of arrest, the prosecution ask for an adjournment of several months (between 4-9 months at present in our experience) from the court to enable a Preliminary Brief of evidence to be compiled and provided to a defendant. The next court appearance is known as a Charge Determination. At this court hearing the DPP are supposed to attend and notify the court whether the charges will proceed as laid, whether changes to the charges are required or whether the matters are to be withdrawn. The DPP are supposed to receive a copy of the Preliminary Brief at least 4 weeks prior to the Charge Determination hearing to enable them to consider the evidence and make decisions. If police don’t act diligently and compile the Preliminary Brief on time, then the whole process is delayed. If this delay continues, the Court can dismiss the charges against a defendant.

This local matter making headlines, is just one example of hundreds of matters across the state, waiting months on end for Preliminary Briefs to be compiled by the MIBU and a Charge Determination made by the DPP. Increasingly Magistrates across the State are starting to dismiss charges after undue delay. Monday’s events here in Mount Gambier are the first occasion this has occurred locally and may be a sign of more to come.

It is an expectation that matters progress through the court as expeditiously as possible. The decision made by the Magistrate on Monday may encourage MIBU and the DPP to respect the office of the Court and the timelines set by Magistrates that should be complied with.

What are your thoughts about delays of 2 – 3 years before matters reach trial? My opinion is that this not only affects defendants, but also victims who are expected to recall evidence accurately years after the event. In an already underfunded area, delays by police and the DPP are making the issue far worse.

If you have questions about Major Indictable charges or the Major Indictable Committal system, you can contact one of our helpful staff to discuss what might be right for you.

Dylan Walsh – Solicitor

Dylan graduated with a Bachelor of Laws from Deakin University and is admitted to the Supreme Court of South Australia.

Dylan specialises in the areas of criminal law, police custody matters, divorce, debt recovery and wills and estates. Dylan is a member of the general panel of the Legal Services Commission of South Australia.

Contact: dylan@bersee.com.au
(08) 8725 6969

Legal Secretary: Ms Mikaela Horrigan
Contact: admin@bersee.com.au