JUDGES should gag lawyers who go on for too long and courts should sit at night to help reduce “extraordinary” legal backlogs, the director of public prosecutions, Jeremy Rapke, QC, said yesterday.
He also suggested that some long, complex criminal trials might be better tried by judge alone than by juries.
The current criminal justice system “simply cannot cope with today’s demands”, he said, with the number of pleas and trials waiting to be heard at an all-time high.
Mr Rapke said the days of lawyers being permitted to run their cases with minimal intervention by judges must pass: “Unrestrained cross-examination must be stopped. Inordinately lengthy opening and closing addresses should be interrupted and halted. Interminable and pointless legal submissions should be curtailed …
“If we don’t solve this problem, we will see more sudoku-distracted juries, and more verdicts open to challenge because of the length and complexity of the cases.”
Mr Rapke was speaking last night at a gala dinner attended by legal and political figures at State Parliament House to celebrate the 25th anniversary of the Director of Public Prosecutions.
He said that in cases that were legally or factually complex, a system where it was open to both sides to agree to trial by judge alone would probably “be quicker and cheaper and less prone to error than if heard by a jury”.
He said the court system should also sit outside the standard six hours a day: “Outside of these hours, millions of dollars of courts are sitting idle.”
He suggested a day shift that would run between 9am and 3pm and an evening shift that would sit between 3.30 and 9.30pm: “Court usage would instantly double.”
Mr Rapke said reasons for the delays included more cases coming before the courts, the law becoming more complex and a record number of appeals.
Acquittals on appeal had risen from 5% of appeals five years ago to 29% so far this year: “Clearly something very serious is amiss with the manner in which criminal trials are being conducted.
“The number of retrials that run not only drains resources but also creates enormous burdens for victims and witnesses and accused persons – not to mention the courts. The cost and length of trials has increased almost exponentially in the last decade.”
Mr Rapke said the first DPP in 1983 had a budget of $5.5 million and a staff of 45 legal officers who handled 6000 matters. “Today, I have 300 staff, which includes 190 lawyers, a budget of over $50 million and, in the last financial year, the OPP handled 72,633 matters.”
He said he and his staff suffered “heartache” when confronted by victims of crime who had been worn down by delays.
“I have heard the cries and pleas of victims and their families to put an end to prosecutions to allow them to close that chapter in their lives and move on. They plead with me (knowing full well) that if I accede to their request, their tormenters will escape justice.”
Attorney-General Rob Hulls told the gathering that Government action to clarify the law and reduce delay included committals reform, a sentence indication scheme and an unprecedented $198.3 million in this year’s budget targeted directly at easing delay.

First published in The Age.