6. The role of victims in committal proceedings

Introduction

  1. 6.1 Before serious indictable charges are heard during a trial at the Supreme or County Courts, the case progresses through the key preliminary step of committal proceedings in the Magistrates’ Court.
  2. 6.2 The way in which committal proceedings are run can impact on victims’ subsequent experience of the trial.
  3. 6.3 This chapter examines the role of victims in committal proceedings in Victoria, other Australian jurisdictions and New Zealand, and in preliminary hearings in inquisitorial systems. It then discusses victim-centred reform issues and proposals, before posing a series of questions.
  4. 6.4 While the evidence of victims, eye-witnesses, experts, police and other witnesses may be tested during committal hearings, this chapter will focus on the role of victims in committal proceedings. The wider question of whether committal hearings should be abolished altogether in Victoria is not addressed in this consultation paper.
Purposes of committal proceedings
  1. 6.5 The central purposes of committal proceedings are:
  • to determine whether there is enough evidence against the accused for him or her to stand trial
  • to ensure that the prosecution has disclosed to the accused the evidence against him or her
  • to identify early pleas
  • to clarify issues prior to the trial.1
  1. 6.6 Australian courts have repeatedly affirmed the importance of committal proceedings in the criminal trial process.2

The current system in Victoria

  1. 6.7 In Victoria, when an accused is charged with one or more indictable offences, the case must proceed through committal proceedings3 before it can be heard in the County or Supreme Court.4 The exceptions are indictable offences specifically identified in the Criminal Procedure Act 2009 (Vic) as capable of being heard summarily and commenced in the summary procedure stream of the Magistrates’ Court, and cases where the Director of Public Prosecutions files a direct indictment in a superior court.
  2. 6.8 For cases that progress through committal proceedings, there are two options for an accused:
  • to elect to proceed at committal mention hearing by way of hand-up brief
  • to elect that a committal hearing be held.

Hand-up brief at committal mention

  1. 6.9 An accused may waive the right to a committal hearing and may be committed to stand trial on the basis of the evidence contained in the brief of evidence. In such cases, at the committal mention hearing the prosecutor submits (hands up) to the magistrate the evidence against the accused, which is contained in the brief of evidence and includes witness statements and exhibits. After the evidence has been handed up to the magistrate, the accused may do one of two things:
  • enter a plea of guilty. If the magistrate is satisfied there is enough evidence to support a conviction, the magistrate will commit the accused to either the Supreme or the County Court for a sentence hearing.5
  • enter a plea of not guilty and elect to stand trial.6 If the magistrate is satisfied the accused understands the nature and consequences of the election, the accused is committed for trial in the Supreme or County Court.7

Committal hearing with cross-examination

  1. 6.10 To proceed to a committal hearing with cross-examination, the accused must first make an application at the committal mention hearing for leave to cross-examine witnesses, including the victim.8 In sexual assault matters there is an absolute prohibition on cross-examination of child victims and cognitively impaired victims.9
  2. 6.11 In seeking leave to cross-examine a witness at the committal hearing, the accused must identify:
  • what issues will be canvassed in cross-examination
  • the reason why the evidence of the witness is relevant to the issue
  • why cross-examination on the issue is justified
  • whether the prosecution consents to or opposes the cross-examination.10
  1. 6.12 The magistrate must not grant leave unless satisfied that cross-examination of the witness is justified.11 In determining whether cross-examination is justified, the magistrate must have regard to whether the informant consents,12 and the need to ensure that:
  • the prosecution case is adequately disclosed
  • the issues are adequately defined
  • the evidence is of sufficient weight to support a conviction
  • a fair trial will take place (including that the accused is able to prepare and present a defence)
  • matters relevant to a potential plea of guilty are clarified
  • matters relevant to a potential discontinuance of prosecution (withdrawing the charges) are clarified
  • trivial, vexatious or oppressive cross-examination is not permitted
  • the interests of justice are otherwise served.13
  1. 6.13 Victims are not provided with a right to participate in the committal mention hearing. There is no obligation on the prosecution to consult with the victim prior to deciding whether to consent to or oppose an application to cross-examine witnesses.
  2. 6.14 If the magistrate grants all or part of the accused’s application to cross-examine a witness or witnesses, a committal hearing is held and the relevant witnesses are required to attend court.14
  3. 6.15 Ordinarily, witnesses are only cross-examined. Their written statements are received as evidence-in-chief. Further, witnesses can only be cross-examined about the issues the magistrate has permitted.15 The magistrate may allow additional lines of questioning during the committal hearing, on application by the accused.16 The magistrate may disallow any question that does not relate to an issue for which leave has been granted, or if it appears to the court that the question is not justified.17
  4. 6.16 If the committal hearing involves a sexual offence, the only people permitted to be present in court while the victim is giving evidence are the police officer, the accused, a support person, the lawyers for the prosecution and the accused, specified court officials and anyone authorised by the court.18 Protective procedures for the taking of evidence from vulnerable victims and victims of sexual and family violence offences, which are reviewed in Chapter 8, also apply during committal hearings. They include the use of remote witness facilities and closed circuit television; a prohibition on asking victims about their reputation for chastity; limits on when defence lawyers can ask questions about victims’ sexual history and access victims’ medical and counselling records; and obligations on the magistrate to prevent improper questions and questioning.
  5. 6.17 All the evidence of witnesses at the committal hearing is audio-recorded.19 At the conclusion of the evidence for the prosecution, which includes the statements of any witnesses not cross-examined and exhibits, the accused may make a submission that there is not enough evidence to support a conviction.20 If this submission is accepted, the court must discharge the accused.21 If the submission is rejected, the magistrate must commit the accused to stand trial in the Supreme or County Court. At this point, the accused must enter a plea of guilty or not guilty to any charges which he or she is committed to stand trial for.22
  6. 6.18 Once an accused is committed for trial, the case is transferred to either the County Court or Supreme Court. The transcript of the evidence from the committal and all witness statements and exhibits are provided to the defence, the prosecution and the trial court.
  7. 6.19 There is no provision in the Criminal Procedure Act for an available witness’s recorded committal evidence to be played to the court as evidence at the trial; they must appear in person in court and give evidence again.23 Thus, during the criminal trial process, a victim (other than a child or cognitively impaired victim of a sexual offence) may be required to give evidence and be cross-examined at least twice.

Application for summary jurisdiction

  1. 6.20 Not all indictable offences must proceed through a committal hearing.24 For some indictable offences, there is an opportunity between the charge(s) being filed and the conclusion of the committal hearing for the accused or the prosecutor to apply to the magistrate for the offence to be heard in the summary proceedings of the Magistrates’ Court.25 The magistrate may grant the application if it is appropriate for the matter to be heard in the Magistrates’ Court, having regard to a range of factors.26
  2. 6.21 At a summary hearing the magistrate, sitting without a jury, determines whether the accused is guilty. Because the matter is being heard in the Magistrates’ Court, a more restricted sentencing range applies on a finding or plea of guilty than in the higher courts.27
  3. 6.22 In determining an application to proceed by way of summary hearing, the court is not required to take into account the views or interests of the victim. In addition, there is no obligation on the prosecution to consult with the victim prior to a summary jurisdiction application.

Alternative processes and procedures

Australia

No right to cross-examine witnesses at committal hearing

  1. 6.23 In 2004, Western Australia removed the right of the accused to cross-examine victims and witnesses at committal hearing, following a review by the Law Reform Commission of Western Australia.28 The Commission recommendation that ‘the preliminary hearing should be abolished’29 was based on the small number of matters that actually went to preliminary hearing (10 per cent of all indictable matters), concerns about delays and costs, and the desirability of limiting the number of times victims and witnesses are required to give evidence.30
  2. 6.24 The Criminal Procedure Act 2004 (WA) obliges the prosecution to disclose all evidence to the accused at the time the matter is listed in the Magistrates’ Court. A disclosure hearing may be held, in which the magistrate must be satisfied that the prosecutor’s disclosure obligations have been met before committing the accused for sentence or trial in a superior court.31Alternatively, the accused may consent to being committed by the magistrate to a superior court, without any hearing or need even to appear in court.32
    In neither circumstance are witnesses called or is evidence led or tested, and the magistrate does not have the power to discharge an accused due to lack of evidence.
  3. 6.25 In Tasmania, there is no provision for evidence to be tested before an accused is committed for trial to the Supreme Court.33 Once the case is before the Supreme Court, the accused or the prosecutor may seek an order from the Supreme Court for a witness to give evidence on oath in a preliminary proceeding.34 The Supreme Court may only make such an order if it is in the interests of justice to do so, and, if the order is for a victim of a sexual offence to give evidence and be cross-examined, in exceptional circumstances.35 Preliminary proceedings occur in the Magistrates’ Court before justices of the peace.36
  4. 6.26 All other Australian jurisdictions have committal hearings which are similar in purpose and procedure to those in Victoria.

General limits on right to cross-examine witnesses at committal hearing

  1. 6.27 The test for granting leave to call a witness and/or cross-examine a witness at a committal hearing differs across the other Australian jurisdictions. In South Australia, the magistrate must be satisfied that ‘special reasons’ exist before granting leave for a witness to be called to give oral evidence.37
  2. 6.28 In the Australian Capital Territory, the test to be applied by the magistrate is whether ‘the interests of justice cannot be adequately satisfied by leaving cross-examination to the trial’.38 In both New South Wales and Queensland, the magistrate must be satisfied there are ‘substantial reasons why, in the interests of justice’, the witness ‘should attend to give oral evidence or be cross-examined’.39 However, if the prosecution consents to a witness being called to give evidence at the committal hearing, there is no need for either party to also seek leave of the court for the witness to be called.40
  3. 6.29 In the Northern Territory, if the prosecution consents, the magistrate must grant an application to cross-examine a witness unless ‘it would not be in the interests of justice’.41 Where the prosecution does not consent, the magistrate must consider matters very similar to those set out in the Victorian Criminal Procedure Act, and additionally, whether a witness has a ‘mental, intellectual or physical disability’.42

Prohibitions and limits on cross-examination of certain victims and regarding certain offences

  1. 6.30 As noted above, in Victoria, child and cognitively impaired victims and witnesses in sexual offence cases cannot be compelled to give evidence in a committal hearing. In the Australian Capital Territory this prohibition extends to all victims in sexual offence cases.43 In South Australia, a magistrate may only grant leave for a victim of sexual assault or child to be cross-examined if ‘the interests of justice cannot be adequately satisfied by leaving cross-examination to the trial’.44
  2. 6.31 In New South Wales, magistrates may only give leave for victims of a broad range of offences, including some sexual offences, attempted murder, grievous bodily harm, abduction, kidnapping and robbery,45 to be cross-examined at a committal if there are ‘special reasons why the alleged victims should, in the interests of justice, attend to give oral evidence’.46
  3. 6.32 In the Northern Territory, there is no blanket prohibition on certain witnesses being cross-examined, although for child witnesses, certain additional factors must be taken into account when determining whether cross-examination is justified.47
  4. 6.33 In contrast, Queensland does not prohibit any victim from being called to give evidence at a committal hearing.
New Zealand
  1. 6.34 New Zealand has abolished committal hearings.48 This occurred in 2011 after New Zealand conducted a lengthy and comprehensive review of its criminal justice system, which included re-categorising all criminal offences and then prescribing a suite of new procedures, which are contingent on offence-categorisation. Under these reforms, the use of jury trials has been substantially reduced: only the most serious offences, which include murder, infanticide and judicial corruption, automatically go before a jury.49 For most other serious offences, an accused person may elect to have a jury trial, otherwise the trial is held before a judge alone.50
  2. 6.35 New Zealand’s reforms are based on a formalised system of case management. Cases that must be dealt with in the higher courts proceed through a case review. Before the case review, the prosecution and the accused are expected to engage in discussions with a view to resolving the matter or determining whether the case will proceed to a trial.51 Following the case review, the matter is transferred to the appropriate higher court for sentence, or for trial before a judge or a judge and jury. There is no scope for witnesses to be cross-examined as part of the case review process.
  3. 6.36 If an accused seeks to examine a witness before the trial, the accused must apply directly to the judge that will hear the trial.52 This application is for an ‘oral evidence order’. Oral evidence orders for victims can only be made if the accused elects to have a jury trial, and only if the victim’s evidence is necessary to determine a pre-trial issue, or otherwise required in the interests of justice.53 For victims of sexual offences, the judge must also consider the vulnerability of the victim and the impact on the victim of giving evidence before it makes an order for pre-trial examination.54
  4. 6.37 This set of reforms was designed to reduce ‘disruption’ caused to witnesses and victims by giving evidence multiple times (and to reduce delays and costs). 55

Preliminary proceedings in inquisitorial systems

  1. 6.38 There is no equivalent of the committal hearing process in jurisdictions with inquisitorial criminal trial processes. Rather, the preliminary examination phase of the proceedings, which is more like an investigation than a court hearing, dominates the criminal trial process. This preliminary examination phase is overseen by a judicial officer, who examines witnesses and gathers evidence. The prosecutor, the accused’s lawyer and the victim are involved in this phase, which is not a public process. Witnesses, including victims, are often examined by the judicial officer in his or her office, at which time the accused’s lawyer and the prosecutor have the opportunity to ask questions.
  2. 6.39 The evidence gathered as part of this preliminary investigation forms the record of evidence (also described as the case file or dossier) which goes before the judge making the ultimate decision about the accused’s guilt. In the Netherlands, Belgium, some Swiss regions and Austria, the judge relies heavily on the case file.
  3. 6.40 From the perspective of victims, the emphasis on preliminary examination processes in inquisitorial criminal trials has several distinct advantages:
  • Witnesses, and in particular victims, are rarely required to give evidence during the trial phase.
  • Victims are not required to give evidence in a public forum, but in the more informal environment of the examining magistrate’s office.
  • Victims can give evidence in the absence of the accused.56

 

  1. 6.41 Witnesses are also questioned more informally, there are fewer rules of evidence, and the examination of witnesses, including victims, does not involve cross-examination. In Austria, witnesses, including victims, can refuse to answer questions if doing so would ‘disgrace’ the witness, or, in the case of victims of sexual violence, if the question concerns his or her private life or details of the offence that they do not want to describe.57 In Zurich, Switzerland, victims of sexual offences can:
  • request that the court examining their case have at least one member of the same sex
  • request that a person of the same sex conduct the questioning
  • refuse to answer questions about their private life.58

Discussion and options for reform

  1. 6.42 The Commission encourages consideration of whether some or all of the procedures canvassed above for committal proceedings in other jurisdictions should be adopted in Victoria.
  2. 6.43 Victim-oriented reform proposals specific to the committal phase of the criminal trial process tend to focus on increasing victim participation (other than as a witness); reducing the number of times victims are required to give evidence; and protecting victims from the more traumatic aspects of giving evidence. Reforms directed towards protecting victim-witnesses are discussed in Chapter 8.

The victim as participating or prosecuting witness

  1. 6.44 Reforms to increase victim participation in committal proceedings might involve requiring the prosecutor to consult with victims before making certain decisions, and perhaps imposing a complementary obligation on the magistrate to ensure, when making a ruling, that victims have been consulted. Consideration could be given to which prosecutorial decisions should include victim consultation, and which ones should not. Arguably, decisions such as whether to oppose an application to cross-examine a witness are core prosecutorial decisions. As such, decisions of this nature should be made in accordance with prosecutorial duties to be fair, impartial and act in the public interest, rather than based on victims’ views or wishes.
  2. 6.45 In contrast, an application to cross-examine the victim at the committal hearing has clear, and potentially distressing, implications for the victim if granted. Given the substantial personal interest that victims have in such an application, the view of the victim could be given greater prominence in determining the prosecutor’s position, and the magistrate’s decision.
  3. 6.46 As discussed in Chapter 5, an obligation to consult with victims when negotiating a plea already exists in the policy of the Victorian Director of Public Prosecutions and a court certification process supports a similar obligation in New South Wales. A decision by the prosecutor to make or consent to an application for charges to be dealt with by way of summary procedure has some parallels to a decision to accept a plea, because of the difference in the way charges are dealt with and the restricted sentencing range available.
  4. 6.47 An additional or alternative measure could be to include the views of victims, or matters personal to the victim, as part of the test the magistrate must apply when determining applications to cross-examine victims or to grant summary jurisdiction.
  5. 6.48 A more radical participating-witness reform could involve granting victims standing to put their views or interests before the magistrate in relation to an application for the victim to be cross-examined at committal. Consideration might be given to whether victims should be allowed to make submissions or submit evidence, for example that they should not have to give evidence at the committal hearing because of a particular vulnerability. Such a proposal has the potential to lengthen and complicate committal proceedings and impose a greater burden on the accused to respond to both the prosecution and victim’s submissions. Equity concerns also arise. Some victims may be unable to afford legal representation, which could compromise their ability to participate meaningfully.59
  6. 6.49 If the role of victims should include introducing prosecuting-witness rights, similar to those afforded to the victim in inquisitorial trials and the International Criminal Court, this might involve giving victims the right to be heard in relation to an accused’s application to cross-examine any witness. It might also involve victims having the right to ask questions of witnesses at the committal hearing and make submissions on matters of law and evidence. As with the more limited proposal for victim participation above, consideration should be given to whether a prosecuting-witness role for victims would have unacceptable consequences for the fair trial of an accused, the cost and length of committal hearings, and impose undue obligations and burdens on victims.

Reducing the number of times victims have to give evidence

  1. 6.50 As noted in Chapter 2, research has shown that the process of cross-examination can be distressing for victims and can lead to re-traumatisation or secondary victimisation.
  2. 6.51 The Commission encourages consideration of whether the number of times victims are required to be cross-examined should be restricted, and how this might be achieved. Potential approaches include:
  • expanding the prohibition on cross-examining child and cognitively impaired victims in sexual offence matters at committal to all victims, victims with particular vulnerabilities, or victims of particular offences
  • placing greater limitations on the accused’s right to cross-examine victim-witnesses
  • removing committal hearings from the Magistrates’ Court.
  1. 6.52 The Commission notes that prohibiting the cross-examination of any witness or the testing of any evidence at committal hearing is a significant step. In Western Australia and New Zealand, committal hearings were only abolished after reviews of each jurisdiction’s criminal justice system. In New Zealand, the elimination of committal processes was accompanied by an integrated set of reforms across the entire criminal justice system.60 In contrast, reviews in both Queensland and the Northern Territory recommended that rather than committal hearings being completely abolished, they should be retained in a more limited form.61
  2. 6.53 Not only can cross-examination cause victims trauma, committals can also delay the criminal trial process, adding to victims’ stress and uncertainty. However, removing committal hearings, or completely prohibiting the cross-examination of all victims at committal hearings, could result in these issues having to be dealt with by the trial judge, with increased applications for pre-trial cross-examination and more complicated pre-trial hearings.62
  3. 6.54 Removing committal hearings, or completely prohibiting cross-examination of victims at committal hearings, may increase the risk that trials will have to be abandoned part way through if evidence that could have been discovered at a committal hearing, and which has consequences for the conduct of the trial, is uncovered when witnesses give evidence before the jury. Arguably, any such reform would need to be accompanied by significant structural reforms, which would allow trial judges to case-manage a greater range of pre-trial matters, including assessing the sufficiency of evidence against the accused and whether pre-trial examination of victims or other witnesses should be permitted.

Use of video-recorded statements and evidence

  1. 6.55 More modest proposals to reduce the number of times a victim has to give an account of the offending and be cross-examined relate to the way in which evidence is gathered, and the use of pre-recorded evidence. For example, video-recording the evidence of victims of rape before the trial has been proposed as ‘the measure most likely to provide courts with the best evidence and to meet the needs of vulnerable and intimidated witnesses’.63 In a similar vein, in New South Wales, video statements taken from domestic violence victims by police as soon as possible after the incident has occurred are admissible as the evidence-in-chief of the victim (at committal and trial). This is considered further in Chapter 8.
  2. 6.56 Reforms such as these involve changes to the way evidence is collected during the investigatory stage of proceedings, and have clear implications for committal and trial processes. Witness statements taken in this form may satisfy a key rationale for committal hearings, which is to allow the accused (and the prosecution) an opportunity to evaluate the victim’s evidence prior to trial, thus supporting proposals to remove victim cross-examination from the committal process.
  3. 6.57 A possible adaptation of this proposal is that, if victims are to be cross-examined at the committal hearing, this evidence be recorded and played during the trial. Any such procedure would need to adequately safeguard the accused’s fair trial rights.
  4. 6.58 For these types of reform, consideration should be given to whether the cogency, impact and effect of direct presentation of victims’ evidence before a jury may be substantially reduced by the use of recorded statements and pre-recorded evidence.

Questions

Consultation
  1. 13 Should the prosecution be required to consult with victims before taking a position on a summary jurisdiction application or an application to cross-examine a witness, including the victim?
  2. 14 Are measures required to ensure that the prosecution fulfils consultation obligations?
The role of the victim in proceedings
  1. 15 Should victims have a role in relation to applications for summary jurisdiction or applications to cross-examine witnesses at a committal hearing?
  2. 16 Should victims have a role during the committal hearing? If so, what should this role be?
  3. 17 Should victims’ views be a relevant factor in the magistrate’s determination of an application to cross-examine the victim, or other witnesses? If so, how might victims’ views be communicated to the magistrate?
Protected-witness measures
  1. 18 Should the prohibition on child and cognitively impaired victims giving evidence at committal hearings in sexual offence matters be extended to all, or certain other, victims? If so, what criteria should this be based on?
  2. 19 Should the evidence of victims at committal hearings be video-recorded so that it can be played at the trial instead of victims giving oral evidence?
  3. 20 Should cross-examination of victims and other witnesses at committal hearings be replaced by earlier transfer of serious indictable offences to superior courts, with the examination of witnesses taking place in advance of the trial and before a trial judge?

 

Footnotes

Main menu

Back to top