Test for committal should be abolished to help courts operate more efficiently

16 September 2020

The Victorian Law Reform Commission has recommended changes to pre-trial procedures, including abolishing the test for committal, in a report tabled in the Victorian Parliament and published today.

Pre-trial procedures include all the steps that occur before an accused person is put on trial for a serious crime (indictable offences). Roughly 3,000 indictable cases pass through the lower courts each year. The Commission was asked by the Attorney-General to review pre-trial procedures to make the system more efficient and less traumatic for victims of crime, while maintaining the right to a fair trial.

The Commission has recommended that the ‘test for committal’ should be abolished. This is the process by which a magistrate decides whether the evidence is strong enough to send a person charged with a serious crime for trial in a higher court. The Commission says this step is unnecessary because the accused is only discharged in one or two per cent of cases. Instead of applying the test in every case, the defence should have the right to apply for a discharge of the accused only when they consider that there is no reasonable prospect of conviction.

The report includes recommendations to make pre-trial procedures more efficient. It says that when matters fall within the jurisdiction of the Supreme Court, such as murder and treason cases, the pre-trial procedures should be dealt with by the Supreme Court from the start. However, pre-trial case management for matters that will be heard in the County Court should continue to be handled by the Magistrates’ Court – including rape and sexual assaults, serious assault, serious theft, and drug trafficking.

Other recommendations include:

  • reducing the number of hearings before trial
  • ensuring that experienced lawyers are involved at an early stage
  • reforms to the way charges are laid and evidence is disclosed
  • more involvement by the Director of Public Prosecutions (DPP) at an early stage
  • better protections to reduce trauma for victims and witnesses.

The Commission says that defence lawyers should still be allowed to cross-examine witnesses, including some victims of crime, during pre-trial hearings. But magistrates should strictly apply the test for when cross-examination is allowed, and encourage alternative arrangements for giving evidence such as video and intermediaries.

The existing ban on cross-examining witnesses in the lower courts in sexual offence cases where the victim is a child or person with a cognitive impairment should be extended to family violence cases.

The Chair of the Victorian Law Reform Commission, the Hon. Anthony North QC, said: “These proposed reforms would make the courts more efficient and reduce delay in the process of bringing people to trial. That would reduce distress to victims as well as protecting the fair trial of the accused, by ensuring they do not have to wait so long for trial.”  

The Committals report is available on the Victorian Law Reform Commission website, www.lawreform.vic.gov.au.

For more information or an interview with the Hon. Anthony North please contact:
Nick Gadd, Communications Manager, Tel: 0425 862 119 E: nick.gadd@lawreform.vic.gov.au

Voiced by Amazon Polly