Guilty: a Plea against the Price of Justice

Justin Shaw

October 4, 2017

There aren’t any official figures available on how many people appear without a lawyer at the Melbourne Magistrates’ Court. Police Prosecutors don’t record them, and ‘unrepresented’ isn’t a field that the aging Courtlink system processes.

But spend a day shuffling between the Mention Courts and you’ll see more than enough to make you question the system. Sometimes it’s simply a case of cash-strapped people saving on an appearance fee and asking for their own adjournments until their lawyer is ready. But all too often people fall through the cracks of Victoria Legal Aid’s stringent requirements for representation.

Sometimes it works out as well as can be expected, as it did for Janice. She had no defence to the charges and no choice but to plead guilty. What if you do have a case though? What if you know you didn’t do what you’ve been charged with, but can’t afford a lawyer and simply don’t have the time or resources to keep coming back to court?

Contest Mentions are hearings where issues around charges are teased out in front of the Magistrate and the case either resolves into a plea of guilty or withdrawal of charges, or it is booked off for a contested hearing where witnesses give evidence and another Magistrate decides guilt or innocence on the facts.

Cedric Chenefront came to court on his own charged with Careless Driving. He’d initially approached a law firm and been told the cost of each appearance, including the fee if he took the matter all the way to contest. Like most of us in the gig economy he both couldn’t raise the money and couldn’t afford the lost future income for coming to court again and again.

Cedric pleaded guilty, despite telling Magistrate Elizabeth Lambden that he believed there had been no collision and he had evidence to support this.

‘I didn’t want to spend a huge amount of time, lawyers would have charged sixteen hundred bucks a go, and their advice was to just put it behind me, even though I had evidence to the contrary,’ he told me outside court.

His fine without conviction was a quarter of what his legal bill would have been. Similar decisions are quite rightly made in civil disputes all the time: parties agree to settle, on the basis that a trial would cost more.

But this was a criminal charge (Section 65 of the Road Safety Act 1986). It’s on Cedric’s record now. If he’s ever before a court on another driving charge, he will have a ‘prior’. There will be forms for visas or company directorships or employment that will require him to admit this offence. If he’s ever checked by police they will see it and that prior may change the way they view him.

It’s not possible to assess whether Cedric’s ‘evidence to the contrary’ would have been enough to give a Magistrate reasonable doubt, but that’s not the point. The onus is on the prosecution to prove its case against an accused person and he therefore had the right to force that. But the time and expense of defending a minor charge for a minor alleged car accident were beyond him, as they are for so many others.

There are many deleterious effects of people representing themselves in court. Magistrates have to take the time to explain charges and sentences in far greater detail. Police prosecutors face the ethical dilemma of explaining the law and the strength of the police case, but without directly advising the person to plead guilty. Court lists blow out because of these delays and the extra adjournments that are sometimes necessary.

Worst though, is the actual and perceived injustice in people admitting guilt for the simple reason that they can’t afford to force the state to prove it.