Appendix C: Supreme Court proposal: flexible early case management
The following information was provided to the Department of Justice and Regulation in 2017 by the Supreme Court of Victoria.
The Supreme Court proposal is as follows.
Justice is best served by bringing criminal proceedings to a conclusion within the shortest possible time consistent with fairness:
• time which may be spent on remand is minimised for the accused;
• events are fresher in the mind of witnesses and therefore the quality of their evidence is not diminished by delay;
• the experience of victims is substantially improved; and
• for those convicted and sentenced, access to rehabilitative programs is brought about sooner.
Minimising delay in the criminal justice system should therefore be the aim of all components of, and participants in, the criminal justice system.
Reforms have been introduced in the recent past which seek to reduce the length of trials (e.g. Jury Directions) and to encourage early resolution (e.g. sentence indication and statements under section 6AAA of the Sentencing Act 1991). However, some of the largest periods of delay in the system are attributable to awaiting a hearing date, effectively “queuing”.
This occurs in both the Magistrates’ Court during the committal process and then again in the higher court. The fact that this occurs twice within the course of a criminal proceeding significantly contributes to the overall time it takes to bring the matter to a conclusion.
The Supreme Court has therefore suggested that reforms be introduced to allow matters to be managed from the point of charge or very shortly thereafter, through to trial in the Supreme Court as a means of reducing delay (avoiding double queuing) and providing continuity of management, whilst maintaining the important processes of disclosure and testing the sufficiency of evidence to proceed to trial.
In every case, a certain amount of time is required for information to be compiled and considered by the prosecution and defence. However, beyond this time period matters are awaiting the next available court listing date.
The Supreme Court recently extracted a sample of the 84 cases finalised in 2015/2016.
The average time from charge to committal for these matters was 7.3 months. The average time from committal to final disposition for the same sample was 10.2 months.
Data provided by the Magistrates’ Court to the Victorian Law Reform Commission shows that only 46% of completed committals involved cross-examination of one or more witnesses. It is rare for a committal hearing which does involve cross-examination to take more than one or two days.
This points to there being considerable scope to reduce delays.
Changes in Criminal Case Management
Over the past decade there has been a significant increase in pre-trial management of cases in the higher courts. Once committed for trial, a post committal directions hearing is immediately listed and held in the higher court (usually within 24 hours) and a timetable set for the preparation of the matter for trial, including the subpoenaing of evidence, resolution of pre-trial legal and evidential issues.
There is considerable overlap between these activities and the current committal process. Each court familiarises itself with the case and each engages in a process of facilitating disclosure of relevant materials. There is therefore a duplication of effort.
A rigid separation between the committal process and pre-trial management, no longer accords with modern case management practice which aims to reduce double handling and promote continuity of management through to trial.
The recent appointment of a Judicial Registrar for the Criminal Division of the Supreme Court provides capacity for the Court to take on management of at least a proportion of cases from the point of charge.
The Western Australian model
This proposal is informed by the process which exists in Western Australia whereby the committal process is integrated within the Supreme Court. The Magistrates’ Court Stirling Gardens is located within the Supreme Court building and Registrars of the Supreme Court are appointed as Magistrates to form the Court at that venue. All persons charged with indictable Supreme Court matters appear before the Magistrates’ Court Stirling Gardens and these cases are managed through the disclosure and committal process through to trial.
This process, introduced in 2007, has been successful in reducing delay.
Although the above measures are relatively simple reforms they have some very beneficial outcomes. Defended matters are resolved much earlier and accused have a better opportunity of obtaining their counsel of choice. More importantly, accused who are in custody spend less time on remand, and alleged victims and secondary victims gain earlier closure. The efficiencies that flow from these reforms result in significant savings in public expenditure.
While the committal process in Western Australia is different to that in Victoria, there is reason to believe that there is scope for similar beneficial outcomes from management of cases by the Supreme Court from the same early stage.
The Tasmanian model
It is also noted that in Tasmania amendments commenced in 2008 which altered the nature of the conduct of indictable matters. While there remains a committal process to the Supreme Court, this is essentially a formality. The essential function of the committal process in relation to examining witness has been replaced by a ‘preliminary proceeding’. This occurs after the formal committal and is ordered by the Supreme Court to take place before a Magistrate or Justice of the Peace. The Supreme Court determines which witnesses may be examined in accordance with the legislative criteria and the preliminary proceeding is then conducted in accordance with that order.
Nature of the proposal
The proposal is to amend the Criminal Procedure Act to allow:
• the uplift of matters from the Magistrates’ Court to the Supreme Court once charges are filed by order of the Supreme Court . This could occur at the request of a party or at the Supreme Court’s own motion
• the option to file a charge directly in the Supreme Court with the leave of the Supreme Court.
• case management by the Supreme Court encompassing all the usual powers of the Magistrates’ Court during the committal process, with concurrent powers to exercise the functions of the trial court under Chapter 5, and
• the ability to remit matters to the Magistrates’ Court if necessary for the conduct of a committal.
The power of the DPP to file a direct indictment “at any time” as provided for in section 159(2) of the Criminal Procedure Act will remain.
The process of providing an accused with access to all relevant information held by the prosecution, the evidence to be presented at trial and the ability to test whether that evidence is sufficient for the matter to proceed, are important aspects of our justice system. Nothing in this proposal detracts from that proposition. However, the proposal does allow for this process to be carried out in different ways.
The above amendments, combined with rule amendments would allow the Supreme Court to:
• manage the initial disclosure process, conduct committal proceedings before a judicial registrar and, if appropriate, commit the accused to trial. Being familiar with the matter the Court can at the same time set out the timetable for trial preparations with provision having been made for a trial date immediately following an accused being committed for trial.
• manage the initial disclosure process, and if no committal hearing is required and no contest arises as to committal, allow the matter to proceed by direct indictment with a timetable for pre-trial preparation and listing of hearings to determine preliminary issues.
• following filing of the charge, list and determine a preliminary legal issue by way of ruling which will determine the scope of the charges proceeding to trial or focus the preparation of the matter for trial.
Key to the proposal is that the Supreme Court is in a position to manage the case from the perspective of the ultimate trial court. This will avoid two separate case management processes and allow for a single case management process from the perspective of the ultimate trial court.
The case management processes of the Supreme Court often results in the resolution of a matter via a plea of guilty to the most appropriate charge. By allowing that process to begin at an earlier stage, the prospects of early resolution are increased.
Bringing proceedings into the Supreme Court
An amendment is proposed to allow for the Supreme Court to order of its own motion that a charge for an indictable offence which is not triable summarily filed in the Magistrates’ Court be uplifted/removed to the Supreme Court. This would be similar in some respects to the provision in section 167 of the Criminal Procedure Act which allows the Court to uplift a matter for trial from the County Court.
A further amendment would allow for charges to be filed in the Supreme Court. This would be subject to a leave requirement to ensure that the process was not used vexatiously by individuals.
Conscious of the fact that this would be a significant change in the criminal justice system, this approach would allow the piloting of the procedure with a smaller number of cases. The success of the pilot and the resources available within the Court would then determine the extent to which the procedure was expanded to, for example, all homicide cases.
The initial selection of cases would be based on matters which would ordinarily proceed to trial in the Supreme Court. It would be open to the prosecution or defence to request that the Court consider uplifting a matter. However, the Court would also seek to proactively identify suitable cases for uplift through liaison with State and Federal prosecutors, defence practitioners including Victoria Legal Aid, Victoria Police and the Magistrates’ Court.
The Court would, as a starting point, seek to establish a process whereby it is notified of all murder and manslaughter charges upon filing. Whilst not all cases may be subject to uplift initially, this process would allow case volumes to be monitored and improved capacity for forward planning for all homicide cases as these cases fall within the exclusive criminal jurisdiction of the Supreme Court.
Once a matter is uplifted or charges filed, the proposal is that cases proceeds in accordance with the provisions of the Criminal Procedure Act, but do so in the Supreme Court. The difference would be that there would be the option to exercise both the powers of the Magistrates’ Court in relation to committal proceedings and those of the Supreme Court in relation to pre-trial management concurrently or immediately following the committal of an accuses as appropriate. There would also be the option to remit matters to the Magistrates’ Court if this became necessary. For example:
• a charge may be uplifted at the request of the defence who have indicated an intention by the accused to plead guilty. The Court could give directions for the plea brief to be served, but it may be agreed that the prosecution will file a direct indictment. The plea in mitigation could be listed in the Supreme Court with directions for the filing of reports and submissions. This would substantially reduce the overall time taken to bring the matter to a conclusion.
• a charge may be uplifted to the Supreme Court, with the Supreme Court conducting a committal mention. The Court could determine whether leave will be granted to cross-examine witnesses and list the committal hearing either before the Supreme Court (most likely before the judicial registrar), or back before the Magistrates’ Court, if this was deemed more appropriate, to be conducted in accordance with the directions given at the committal mention. If the committal is undertaken in the Magistrates’ Court a Magistrate will be able to exercise the discretion under section 132A of the Criminal Procedure Act to grant leave to cross-examine a witness, in respect of whom leave exists to cross-examine, on an issue not earlier identified.
A charge may be filed by leave in the Supreme Court where the parties are seeking an initial ruling on a question of law before the matter proceeds through the committal process as this ruling may lead to the resolution of the proceeding through a plea process or a substantial change in how the matter proceeds
The intention is to provide flexibility to adapt to the needs of each case with continuity of management by the Supreme Court as the ultimate trial court. It is considered this will reduce the time each proceeding takes to reach a conclusion by eliminating the need to revisit issues in different courts, by resolving issues early in proceedings, and by eliminating listing delays, particularly for those matters which do not proceed to a full committal hearing.
In addition to provision for filing or uplifting charges, it is proposed that amendments by made to the Criminal Procedure Act to provide that:
• where a matter is filed in/uplifted to the Supreme Court it shall proceed in accordance with Chapter 4 of the Criminal Procedure Act – Committal Proceedings- subject to the below:
• the Supreme Court may give directions for the matters to be remitted to the Magistrates’ Court for the conduct of the committal hearing; and
• the Supreme Court may exercise powers under Part 5.5- Pre-trial Procedures- in relation to a matter before an indictment has been filed, if it would be appropriate in the interests of justice to do so. See the example above in relation to a pre-committal ruling by the Supreme Court.
Department of Justice and Regulation, Victorian Government, Proposed Reforms to Civil Procedure: Reducing Trauma and Delay for Witnesses and Victims—Criminal Law Review (Discussion Paper, 2017) 9–13.
Victorian Law Reform Commission, Report into the Role of Victims of Crime in the Criminal Trial Process, No. 34 (August 2016), 210.
Supreme Court of Western Australia website http://www.supremecourt.wa.gov.au/M/magistrates_court_stirling_gardens.aspx?uid=4946-0149-8167-1518, accessed 5 December 2016.
Criminal Code (Tas) s 331B.
Justices Act 1959 (Tas) s 61.