Committals: Report

1. Introduction

Terms of reference

1.1 On 24 October 2018, the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission, under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), to review and report on Victoria’s committal system.

1.2 The terms of reference are set out on page ix.

Scope of the reference

1.3 The Commission is asked to recommend any legislative, procedural or administrative changes to the committal system that could:

• reduce trauma experienced by victims and witnesses

• improve efficiency in the criminal justice system

• ensure fair trial rights.

1.4 The committal system incorporates all pre-trial criminal procedures conducted in the Magistrates’ or Children’s Courts (the lower courts[2]) in respect of indictable offences.[3] The elements of committal proceedings are set out in chapter four of the Criminal Procedure Act 2009 (Vic) (CPA) and described in Chapter 2 of this report. They include various court events such as filing and committal hearings, and other procedural requirements such as disclosure by the prosecution of relevant materials.

1.5 Each year around 3000 cases commence in the committal stream of the Magistrates’ Court and pass through some or all parts of a committal proceeding.[4] Of these cases:

• roughly 30 per cent are heard and determined summarily[5]

• another 30 per cent are committed to the County Court for sentence[6]

• another 30 per cent are committed to the County Court for trial[7]

• roughly four per cent are committed to the Supreme Court for sentence or trial.[8]

Purposes of committal proceedings

1.6 The purposes of committal proceedings are listed in the CPA:

• To determine whether a charge for an offence is appropriate to be heard and determined summarily.

• To determine whether there is evidence of sufficient weight to support a conviction for the offence charged.

• To determine how the accused proposes to plead to the charge.

• To ensure a fair trial, if the matter proceeds to trial, by—

– ensuring the prosecution case against the accused is adequately disclosed in the form of depositions

– enabling the accused to hear or read the evidence against them and to cross-examine prosecution witnesses

– enabling the accused to put forward a case at an early stage if the accused wishes to do so

– enabling the accused to adequately prepare and present a case

– enabling the issues in contention to be adequately defined.[9]

1.7 To those unfamiliar with indictable criminal procedure in common law jurisdictions, the practice of commencing proceedings in a lower court before conducting a trial or sentencing an offender in a higher court may appear complicated and inefficient.

1.8 The practice has roots in a different historical context—a time when citizens could accuse fellow citizens of serious crimes and when independent police forces and prosecution agencies did not exist.[10] Having an independent arbiter review the evidence in the case was designed to act as a filter,[11] ensuring that people accused of serious crimes were not faced with the cost and stress of defending themselves in the higher courts against prosecutions that were ‘wanton or misconceived’.[12]

1.9 The purposes of committal proceedings have evolved over time and are now more various.[13] Each of the purposes currently listed in the CPA represents an important objective of pre-trial indictable procedure, although their relative value and how they should be realised is debated.

1.10 A review of these purposes is implicit in the terms of reference, which request the Commission to consider, among other things, ‘whether Victoria should maintain, abolish, replace or reform the present committal system’.

Objectives of pre-trial indictable procedure

1.11 Numerous submissions to this reference identify the most important objectives of pre-trial criminal procedure as being to:

• achieve early resolution where possible, including by securing appropriate early guilty pleas

• provide disclosure and thereby to ensure the accused understands the prosecution’s case and can present a defence, which is essential for fair trial rights

• narrow the issues in dispute and ensure the case is ready for trial, if it goes to trial

• minimise trauma for victims and witnesses.[14]

1.12 These objectives are central to Victoria’s criminal justice system, whether they are achieved under the rubric of committal proceedings or in the jurisdiction of the lower or higher courts. The objectives are reflected in the terms of reference.

1.13 The Commission has interpreted the terms of reference broadly to include review of all pre-trial indictable criminal procedure including committal proceedings and procedures conducted prior to trial in the higher courts. Higher court pre-trial procedures are relevant because they are designed to achieve the same underlying objectives as committal proceedings. Moreover, many of the submissions to this reference advocated for reforms that would affect pre-trial procedures in the higher courts.

The value of committal proceedings

1.14 There has been long-standing debate in all common law jurisdictions about the value of committal proceedings in modern criminal justice systems. Some consider committal proceedings to be a ‘vital cog in the machinery of the criminal law’,[15] essential to a fair trial,[16] and central to achieving early resolution of cases.[17] Others view committal proceedings as a source of delay and unnecessary duplication between the lower and higher courts.[18]

Reforms in other Australian jurisdictions

1.15 In recent decades, all Australian jurisdictions have made changes to their committal systems. No two systems are perfectly comparable, but there are common elements.[19] In all states and territories, an indictable criminal case commences in the lower courts. In some instances, these cases are moved quickly into the higher courts[20] while in others they go through a more involved process in the lower courts before being transferred to the higher courts.[21]

1.16 Some jurisdictions require a magistrate to consider the evidence in a case before committing the accused to a higher court[22] while in other jurisdictions the test for committal has been abolished.[23]

1.17 The availability of cross-examination during committal proceedings also varies between jurisdictions. Some have abolished or severely restricted it[24] while in others it is available but is not often requested or permitted.[25] In Victoria, leave to cross-examine witnesses at committal hearings is granted relatively frequently.[26] In all jurisdictions, there is a prohibition on cross-examining witnesses during committal proceedings who may be particularly vulnerable and there are additional protections for some other witnesses (see Chapter 11).

1.18 Recent changes to committal proceedings in New South Wales and South Australia are of particular interest.

1.19 In 2018, New South Wales introduced reforms designed to encourage appropriate early guilty pleas.[27] The reforms abolished the test for committal and established a new case management process and sentencing discount scheme. Funding was provided to the Director of Public Prosecutions (New South Wales) and Legal Aid New South Wales to ensure continuity of legal representation in criminal matters, allowing senior lawyers to act from the start of proceedings until finalisation.[28]

1.20 The New South Wales reforms also introduced disclosure and charge certification requirements.[29] The disclosure requirements involve informants initially preparing a simplified brief of evidence. This should include all relevant material in the possession of the informant but the evidence does not need to be in admissible form.[30] The informant and their senior officer must both sign a disclosure certificate confirming the investigation is complete and that the informant’s disclosure obligations have been complied with.[31] A senior prosecutor must then review the evidence and file a charge certificate in the Local Court (the equivalent of Victoria’s Magistrates’ Court) confirming the charges that will proceed to trial and identifying any charges that should be withdrawn.[32] Until a charge certificate is filed, the accused is not able to enter a plea.

1.21 Also in 2018, South Australia introduced reforms to facilitate early resolution of major indictable matters[33] and reduce delay.[34] The reforms provide for a tiered disclosure process, with South Australia Police providing a preliminary brief of evidence to the South Australian Director of Public Prosecutions.[35] The Director must make a charge determination before the commencement of committal proceedings.[36] The charge determination requirement was designed to reduce the number of charges withdrawn at a late stage in proceedings.[37] Until a charge determination is made by the Director of Public Prosecutions, South Australia Police have conduct of a case and advise magistrates of the time required to compile the brief of evidence.[38] Statutory time frames for providing the brief of evidence have been abolished to create a more flexible system with fewer hearing dates.[39] As well as these procedural reforms, South Australia established a sentencing discount scheme.[40]

Recent reforms and reform proposals in Victoria

1.22 The terms of reference ask the Commission to report on Victoria’s committal system in light of ‘legislative reforms, public consultations on an early case management model, and other efforts in recent years to address challenges in the committal system’.

1.23 Since the introduction of the Magistrates’ Court Act 1989 (Vic) and the CPA in 2009, amendments to pre-trial criminal procedure in Victoria have focused on reducing delay and on providing better protections for victims and witnesses. Throughout this period, although the value of committal proceedings generally has been debated, two central elements have been retained: the ability to cross-examine some witnesses, and the test for committal.

1.24 Recently, the desirability of allowing cross-examination during committal proceedings was considered by:

• the Commission’s inquiry, The Role of Victims of Crime in the Criminal Trial Process, which recommended restricting cross-examination during committal proceedings[41]

• the Department of Justice and Community Safety (DJCS) 2017 review that sought input from criminal justice stakeholders on reforming criminal procedure to minimise trauma for victims and witnesses and to reduce delay.[42]

1.25 The Role of Victims of Crime in the Criminal Trial Process inquiry prompted the most significant reform of committal proceedings in recent years—the expansion of section 123 and the introduction of section 198A of the CPA[43] (see Chapter 11). Section 123 now prohibits cross-examination during committal proceedings of any witness in cases involving a sexual offence where the complainant was a child or person with a cognitive impairment when proceedings commenced. Section 198A allows for pre-trial cross-examination in the higher courts of witnesses other than the complainant in these cases.

1.26 In 2017, the Supreme Court proposed reforms to allow it to manage cases within its jurisdiction from the point of charge, or shortly thereafter, through to trial. The Supreme Court claimed that ‘a rigid separation between the committal process and pre-trial management [in a higher court], no longer accords with modern case management practice’.[44]

Terminology

The definition of ‘committals’

1.27 ‘Committal proceedings’ are a species of pre-trial procedure. They are distinguished from other pre-trial procedures because they occur only in the lower courts, and before the accused has been ordered (‘committed’) to stand trial in a higher court. A ‘committal’ is the decision by a magistrate to commit an accused for trial or sentence in a higher court.

1.28 During this inquiry, stakeholders commonly used the expression ‘committals’ as shorthand for the entire committal proceedings. The term ‘committals’ was also used to refer to an event within a committal proceeding such as the committal hearing.[45]

1.29 In order to avoid ambiguity, the Commission uses the term ‘committal’ on its own solely with reference to the magistrate’s decision to commit the accused for trial or sentence. Specific court events such as the committal hearing are referred to in full, and where the Commission is referring to committal proceedings in their entirety, it uses the expression ‘committal proceedings’.[46]

1.30 A consequence of the Commission’s recommendation that the test for committal be abolished (see Chapter 4), is that the language associated with pre-trial indictable procedure in the lower courts will need to change. References to ‘committal’ and ‘committal proceedings’ will be redundant. Many component parts of current committal proceedings will, however, remain in somewhat different form.

1.31 A benefit of changing the terminology associated with pre-trial indictable procedure in the lower courts will be to remove language that is opaque to people who do not have experience in the criminal justice system.

The term ‘victims’

1.32 For some survivors of criminal attacks or criminal offending, the word ‘victim’ is a pejorative.[47] As the Commission stated in The Role of Victims of Crime in the Criminal Trial Process: Report, the word:

can connote strength, fortitude, resilience and dignity, yet its use is commonly avoided on the basis that it can reduce a person to their experience of victimisation and connote weakness rather than the attributes of a survivor.[48]

1.33 The law attaches its own meaning to the word, generally using it to refer to the subject of alleged offending only after a finding of guilt in respect of that offending has been made. Before this, the term ‘complainant’ is used to refer to the person whom the prosecution claims is the victim of an alleged offence. The word ‘complainant’ also has derogatory associations for many survivors of crime.[49]

1.34 Despite its negative associations for some, the Commission has decided to follow the Judicial College of Victoria and use the word ‘victim’ in this report:

as a single term to cover any person who has, or is alleged to have, suffered harm as the result of unlawful action…[50]

1.35 The word ‘complainant’ is used occasionally where necessary for consistency with the CPA and other legislation.

The approach of the Commission

Commission Chair

1.36 This reference was commenced under the leadership of the Hon. Philip Cummins AM, who was Chair of the Commission from 1 September 2012 until his death on 24 February 2019.

1.37 On 4 March 2019, Bruce Gardner PSM was appointed Acting Chair of the Commission. Mr Gardner led the reference until the appointment of the Hon. Anthony North QC as Chair of the Commission on 30 August 2019.

Committals Division

1.38 In accordance with section 13(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic), a Division was constituted to guide and oversee the conduct of the reference. Bruce Gardner PSM and Dan Nicholson have been members of the Division throughout the reference. The Hon. Frank Vincent AO QC was a member until his resignation from the Commission in October 2019. Liana Buchanan was a member until she stepped down from the Division in December 2019.

Commission process

1.39 The Commission requested and received data from the Magistrates’ Court of Victoria, the County Court of Victoria, the Supreme Court of Victoria, Court Services Victoria and the Office of Public Prosecutions. An overview of the available data and a discussion of its limitations is provided in Chapter 3.

1.40 An issues paper was published on 24 June 2019.[51] The Commission sought submissions on 21 questions included in the paper. It received 27 submissions, listed in Appendix A.

1.41 The Commission engaged in consultations in Melbourne, Geelong, Bendigo, Shepparton and Morwell with, among others, representatives of courts, prosecuting agencies, Victoria Legal Aid, legal practitioners, forensic agencies, victims, and witnesses and victims’ advocacy groups. The consultations are listed in Appendix B.

1.42 The Commission had the opportunity to observe several committal mentions, committal case conferences, and committal hearings in the Melbourne Magistrates’ Court and Bendigo Magistrates’ Court.

1.43 The Commission examined reforms conducted in other jurisdictions and consulted with members of the justice sectors in New South Wales and South Australia.

Reform objectives

1.44 The terms of reference ask the Commission to recommend changes that could:

• reduce trauma experienced by victims and witnesses

• improve efficiency in the criminal justice system

• ensure fair trial rights.

1.45 These objectives are interconnected and may be mutually reinforcing, although there is potential for tension between them. The recommendations in this report provide strategies for reducing trauma for victims and other witnesses while also promoting efficiency and fair trial rights.

Reducing trauma experienced by victims and witnesses

1.46 Although victims and witnesses are not parties to criminal proceedings, they are important participants.[52] They have an inherent interest in the criminal justice system’s response to crime and should be treated with courtesy, respect, and dignity.[53]

1.47 The Victims’ Charter Act 2006 (Vic) (Victims’ Charter) recognises the impact of crime on victims and seeks to reduce the likelihood of secondary victimisation by the criminal justice system.[54] It applies to all agencies that investigate and prosecute crimes and that provide victims’ services.[55] These agencies should take into account the particular needs of victims, including with respect to their:

• age

• racial or religious background

• sex or gender identity

• disability

• location in regional or rural areas.[56]

1.48 The Victims’ Charter states that all victims should be provided with information about and referrals to relevant support services.[57] They should be kept informed about the course of an investigation and prosecution and about the court process.[58] In some instances their views about a prosecution must be sought and taken into account.[59]

1.49 Despite efforts to improve their experience,[60] many victims and witnesses continue to find their involvement in criminal proceedings unpleasant and stressful. For victims and witnesses who have experienced trauma, involvement in the adversarial criminal justice system can be a particularly difficult and damaging experience.[61] The criminal process may require them to relive traumatic events that they wish to leave behind and that trigger distress and anxiety.[62] Some describe it as more distressing that the crime itself.[63] CASA Forum told the Commission that for victims of sexual assault:

[their] general experience of engagement with the criminal justice system is that it is confusing, disempowering, and re-traumatising.[64]

1.50 The submissions received by the Commission converge in acknowledging that the criminal process can be traumatic for victims and witnesses.[65] Cross-examination is a particular concern, but delay and failures by the prosecution to communicate what is happening in a case are also described as frequent problems.[66]

1.51 A trauma-informed approach was recommended as a way of mitigating the harm that victims and witnesses may suffer as a result of their involvement in the criminal justice process.[67] Domestic Violence Victoria describes a trauma-informed approach as:

processes that don’t place victims in a position of being re-traumatised and don’t treat them as objects of blame or instruments of evidence. Currently, the process often doesn’t deliver a sense of justice … this doesn’t necessarily require a conviction.[68]

1.52 The concept of trauma is expansive and the word is variously defined.[69] As well as physical harm, it can encompass a psychological wound or injury caused by very frightening or distressing events.[70] This may result from directly experiencing or witnessing distressing events; learning that someone close is affected; or repeated or extreme exposure to details of the events.[71]

1.53 A trauma-informed approach recognises the barriers that witnesses and victims who have been through traumatic events may confront during their participation in criminal proceedings, such as difficulties discussing the traumatic events, impaired recollection, fear of being blamed or not believed, and distrust of authority figures.[72] If judicial officers and court staff are aware of these barriers and trained to assist victims and witnesses to navigate them, this may limit the potential for further trauma.[73] The Judicial College of Victoria’s guide for judicial officers provides strategies to reduce trauma for victims and witnesses (see Chapter 11 of this report). The Commission has sought to adopt a trauma-informed approach in its discussion and recommendations.

Improving efficiency

1.54 Criminal processes should be streamlined, avoid duplication and delay, and be cost-efficient. This is consistent with the rights of the accused to trial without undue delay[74] and assures victims and witnesses that they will not be caught up in overly long proceedings.

1.55 Efforts to increase efficiency in the criminal process must not be at the cost of the rights of those involved. Not all delay is ‘unreasonable delay’ and any reforms must ensure that measures to speed up the process do not undermine the rights of the accused. In particular, the rights of the accused to be informed in detail of the nature and evidentiary basis for the charge and to have adequate time to prepare their defence must be respected during pre-trial proceedings.[75]

1.56 This report focuses on avoidable delay and makes recommendations to reduce the time that cases spend ‘queuing’ for various court events, including trial hearings.[76]

1.57 As requested in the terms of reference, the Commission has considered the resource implications of its recommendations. It has identified areas where existing capacity and resource constraints need to be addressed and when recommendations to change the system require additional funding.

Maintaining the right to a fair trial

1.58 Everyone accused of criminal offending is entitled to a fair hearing.[77] In Victoria, the right to a fair trial in the Charter of Rights and Responsibilities Act 2006 (Vic) recognises that the accused has, among other things, rights to:

• be informed promptly and in detail of the nature of the charge

• be tried without unreasonable delay

• be provided with legal aid in some instances

• examine witnesses unless otherwise provided for by law.[78]

1.59 Criminal cases necessarily involve the power of the State being deployed against an individual.[79] Procedural rules have been developed that:

reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious.[80]

1.60 The inherent potential for imbalance between the State and the accused in the criminal justice system is exacerbated by the profile of many alleged offenders. Victoria Legal Aid funds over 80 per cent of all criminal trials in the state. To be eligible for legal aid, strict means tests apply and only the most disadvantaged in the community qualify.[81] Victoria Legal Aid describes those it assists as ‘the most disadvantaged people in Victoria’.[82] In addition to many of its criminal law clients having ‘themselves been the victims of crime, trauma or abuse’, Victoria Legal Aid states that in 2017-18:

• five per cent of its clients were of Aboriginal or Torres Strait Islander background

• 22 per cent were from culturally and linguistically diverse backgrounds

• 26 per cent disclosed having a disability or mental illness

• five per cent were experiencing homelessness

• 29 per cent had no income.[83]

1.61 Some stakeholders urged the Commission to keep the potential vulnerability of accused people in mind. Professor Felicity Gerry suggested there was a need within the criminal justice system to recognise that ‘everyone is vulnerable to some degree’ and ‘the starting point [has to be] protecting everyone in the system—how can we ensure everyone trusts the integrity of the system?’[84] Professor Gideon Boas explained:

I act for both the accused and for victims and both feel very similar [about their participation in the crimiminal trial]—they feel as if they are not involved in the process, that they are not well informed, that it is not meaningful to them.[85]

1.62 At common law, committal proceedings have been characterised as playing an important role in ensuring the rights of the accused. Forty years ago, in Barton v R, Chief Justice Gibbs and Justice Mason (with Justice Aickin agreeing) described the effects of depriving an accused person of committal proceedings:

In such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross-examining them; (3) the opportunity of calling evidence in rebuttal; and (4) the possibility that the magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial or that there is no strong or probable presumption of guilt.[86]

1.63 In Barton, the judges concluded that committal proceedings:

constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair.[87]

1.64 In the same case, Justice Stephen described committal proceedings as ‘an important part of the protection ordinarily afforded to an accused.’[88]

1.65 More recent decisions explain that any unfairness resulting from the absence of committal proceedings may be rectified by the trial court. Whether this is possible will depend on the particular circumstances of the case.[89] The measures available to trial courts to prevent unfairness where an accused is being tried without antecedent committal proceedings include voir dire hearings and the ability to grant leave to cross-examine witnesses under section 198B of the CPA (see Chapter 11).[90]

An overview of the Commission’s conclusions

1.66 In the following chapters, the Commission outlines the reasons for arriving at the conclusions which are now briefly summarised.

1.67 The Commission considered proposals from some stakeholders to abolish committal proceedings and replace them with pre-trial case management in the higher courts. It recognises the advantages of a ‘docket system,’ in which a single judge has oversight of a case from start to finish and is likely to have a keener interest in progressing the case than another judge who will not hear the trial.

1.68 However, aside from the test for committal, which should be abolished, many of the current elements of committal proceedings are essential to ensuring fair trials, promoting early resolution of cases, narrowing the issues before trial, and reducing trauma for victims and witnesses. Subject to some procedural changes, and putting to one side matters within the exclusive jurisdiction of the Supreme Court, the main elements of committal proceedings should be retained in the lower courts in Victoria.

1.69 Introducing a docket system in indictable criminal cases would require a substantial departure from current practice. With the exception of Supreme Court matters, such a radical change is not the most effective approach to advancing the objectives of this reference. Victoria’s lower courts currently filter indictable cases effectively, with around a third of all indictable stream cases resolving in the lower courts and another third committed to the higher courts following a plea of guilty.

1.70 The County Court hears most indictable cases in which an accused is committed for trial, with only around 100 cases committed to the Supreme Court each year. Transferring the bulk of pre-trial indictable case management to the County Court would be costly and there is a danger it would increase delay.[91]

1.71 While still costly, there is less danger of exacerbating delay by moving all pre-trial management of cases within the Supreme Court’s exclusive jurisdiction into the Supreme Court. Therefore, aside from Children’s Court matters, charges for indictable offences that fall within the Supreme Court’s exclusive jurisdiction should be filed in the Supreme Court.

1.72 Comprehensive information is not currently available about the impact of abolishing elements of committal proceedings in other jurisdictions. For example, New South Wales has invested heavily in the reforms discussed earlier, but it is too soon to say whether they have streamlined processes and reduced delay, had positive outcomes for fair trials or reduced trauma for victims and witnesses.[92]

1.73 While the outcomes of abolishing committal proceedings in their entirety are currently uncertain, the Commission’s recommendations address existing concerns about inefficiency and unnecessary trauma for victims and witnesses. The Commission’s recommendations include:

• Replacing the test for committal with a new procedure called a discharge application. The Court will be have the power to discharge charges where it finds there is no reasonable prospect of conviction. Such an application would be initiated by the accused.

• Earlier active involvement of the DPP in prosecuting indictable stream matters. This should include providing charging instructions or reviewing charges at an early stage and taking ultimate responsibility for disclosure to the accused.

• Earlier and continuing involvement of experienced practitioners.

• Replacing committal mention hearings and committal hearings with ‘issues hearings.’ While the opportunity to cross-examine witnesses in the Magistrates’ Court should—with some exceptions—be retained, the Court should more strictly apply the test for leave to cross-examine in accordance with its terms; apply additional criteria for leave to cross-examine in some cases; and carefully monitor the conduct of cross-examination. The issues hearing will allow for greater flexibility in the scheduling of cross-examination and reduce delay.

1.74 The Commission’s recommendations do not preclude future consideration of whether committal proceedings should be further reformed. Victoria should continue to study pre-trial systems in other jurisdictions and particularly the outcomes, when available, of evaluations such as that currently being undertaken by the Bureau of Crime Statistics and Research in New South Wales.[93]

1.75 The effectiveness of Victoria’s pre-trial criminal justice system should continue to be evaluated and data collection strengthened to inform future reform decisions.

Statutory sentencing discount schemes

1.76 The Sentencing Act 1991 (Vic) encourages early guilty pleas by requiring the sentencing court to have regard to whether the offender entered a guilty plea and at what stage in the proceedings this occurred.[94] The Act does not prescribe specific discounts linked to the timing of guilty pleas.

1.77 New South Wales and South Australia have introduced statutory sentencing discount schemes as part of their recent reforms. The schemes specify the amount by which a sentence should be reduced, depending on the timing of the plea.[95]

1.78 In its report on statutory sentence reductions for early guilty pleas, Tasmania’s Sentencing Advisory Council cited arguments that legislated sentence reductions are contrary to the presumption of innocence because they penalise offenders who proceed to trial. The Council continued:

Concerns have also been expressed that [prescribed sentence reductions] may place undue pressure on an innocent [person] to enter a plea of guilty, particularly when a custodial sentence would follow a guilty finding at trial, but a guilty plea would result in a non-custodial sentence.[96]

1.79 Legal Aid New South Wales shares these concerns, telling the Commission in the course of the current reference that strict statutory sentencing discount schemes are:

unfair in ways that you can’t always predict. The [NSW] scheme is incredibly complicated because it tries to incorporate every single matter … none of the debates have been had yet about how it will play out.[97]

1.80 In the report cited above, Tasmania’s Sentencing Advisory Council endorsed Victoria’s sentencing regime.[98] There were no stakeholders who advocated during the current reference for introduction of legislatively prescribed sentence discounts in Victoria. The Commission is not recommending any changes to the existing sentencing discount scheme.


  1. Throughout this report, the Magistrates’ and Children’s Courts are collectively referred to as the lower courts, and the County and Supreme Courts are referred to as the higher courts.

  2. See Chapter 2 and glossary for an explanation of what constitutes an indictable offence.

  3. Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). Statistics for the past five years are available at Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 15 [3.24]. For data on the number of cases dealt with in the committal stream of the Children’s Court, see Chapter 12.

  4. Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). In order for indictable stream matters to be determined summarily in the Magistrates’ Court, the prosecution must withdraw all indictable charges with the approval of the Magistrates’ Court: Criminal Procedure Act 2009 (Vic) s 30.

  5. County Court of Victoria, Case Data Requested by VLRC (October 2019).

  6. County Court of Victoria, Case Data Requested by VLRC (October 2019).

  7. Supreme Court of Victoria, Case Data Requested by VLRC (September 2019). The percentages cited in this paragraph do not total 100% because they are a rough approximation only.

  8. Criminal Procedure Act 2009 (Vic) s 97.

  9. See Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 6–7 [2.4]–[2.8].

  10. Originally the evidence was reviewed by ‘grand juries’ of citizens whose role was to decide if the alleged conduct constituted a criminal offence, and if there was enough evidence to justify requiring the accused to stand trial for that offence: Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 6 [2.5].

  11. Patrick Devlin, The Criminal Prosecution in England (Oxford University Press, 1960) 92.

  12. For a discussion of some of the changes, see David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals (Australian Institute of Criminology, January 1991).

  13. Submissions 9 (Australian Lawyers for Human Rights), 11 (Criminal Bar Association (Victoria)), 12 (Neville Rudston), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria), 19 (Victorian Aboriginal Legal Service), 20 (County Court of Victoria), 22 (Supreme Court of Victoria), 24 (Law Institute of Victoria); Consultation 18 (Academic roundtable).

  14. John Coldrey, Report of Advisory Committee on Committal Proceedings (Victorian Government Printer, February 1986) 2; Submission 11 (Criminal Bar Association (Victoria)).

  15. Submissions 9 (Australian Lawyers for Human Rights), 11 (Criminal Bar Association (Victoria)), 14 (Magistrates’ Court of Victoria), 15 (Liberty Victoria), 19 (Victorian Aboriginal Legal Service).

  16. Submissions 9 (Australian Lawyers for Human Rights),11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria), 15 (Liberty Victoria), 19 (Victorian Aboriginal Legal Service), 24 (Law Institute of Victoria).

  17. Submissions 4 (Director of Public Prosecutions (Victoria)), 7 (knowmore), 10 (Rape and Domestic Violence Services Australia), 18 (Name withheld), 20 (County Court of Victoria) (but note that the County Court is divided in its evaluation of committal proceedings), 22 (Supreme Court of Victoria), 23 (Victims of Crime Commissioner), 25 (Victoria Police); Consultations 3 (CASA Forum) , 31 (Supreme Court of Victoria).

  18. See the comparative table in Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 74.

  19. Western Australia and Tasmania.

  20. Victoria, South Australia, Queensland and New South Wales.

  21. Victoria, South Australia, Queensland, Northern Territory and Australian Capital Territory.

  22. New South Wales, Tasmania and Western Australia.

  23. Western Australia and Tasmania.

  24. South Australia and New South Wales.

  25. See paragraph 11.34 of this report.

  26. See Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (NSW), containing amendments to the Criminal Procedure Act 1986 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW). The reforms implemented many of the recommendations from New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014).

  27. Consultations 33 (Director of Public Prosecutions (New South Wales), 34 (Legal Aid New South Wales).

  28. Criminal Procedure Act 1986 (NSW) ch 3 divs 3, 4.

  29. New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, 7 (Mark Speakman, Attorney-General); Criminal Procedure Act 1986 (NSW) ss 61, 62. The legislation does not refer to a ‘simplified brief’ but specifies that the material need not be in admissible form (s 62(2)).

  30. Director of Public Prosecutions Act 1986 (NSW) s 15A.

  31. Criminal Procedure Act 1986 (NSW) ch 3 div 4.

  32. With some exceptions, major indictable offences are those offences that attract a maximum term of imprisonment exceeding five years: Criminal Procedure Act 1921 (South Australia) ss 4, 5(3).

  33. South Australia, Parliamentary Debates, Legislative Council, 2 March 2017, 6235–6247 (Kyam Maher). See also Brian Ross Martin, Review of the Major Indictable Reforms—Criminal Procedure Act 1921 (As Amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (Report, 13 September 2019) 2–4.

  34. South Australia, Parliamentary Debates, Legislative Council, 2 March 2017, 6235–6247 (Kyam Maher).

  35. South Australia, Parliamentary Debates, Legislative Council, 2 March 2017, 6235–6247 (Kyam Maher); Criminal Procedure Act 1921 (South Australia), s 106. The preliminary brief must be also provided by the police to the accused as soon as practicable: Criminal Procedure Act 1921 (South Australia) s 106(1)(c).

  36. South Australia, Parliamentary Debates, Legislative Council, 2 March 2017, 6235–6247 (Kyam Maher).

  37. Criminal Procedure Act 1921 (SA) ss 105(5) and 106. This is also the case in New South Wales.

  38. Brian Ross Martin, Review of the Major Indictable Reforms—Criminal Procedure Act 1921 (As Amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (Report, 13 September 2019) 3 [4].

  39. Sentencing Act 2017 (SA) s 40.

  40. Recommendations 37 and 38: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 213.

  41. Department of Justice and Regulation (Vic), Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims—Criminal Law Review (Discussion Paper, 2017).

  42. Justice Legislation Miscellaneous Amendment Act 2018 (Vic).

  43. The Court’s ‘flexible early case management proposal’ was not published independently but is summarised in the DJCS Discussion Paper: Department of Justice and Regulation (Vic), Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims—Criminal Law Review (Discussion Paper, 2017) 10. The mention of ‘public consultation on an early case management model’ in the current terms of reference relates to the Supreme Court’s proposal as it is canvassed in the DJCS Discussion Paper.

  44. The expression is used in this way by David Brereton and John Willis in their article, ‘Evaluating the Committal’, which begins, ‘…the future of the committal hearing is now under something of a cloud’. Throughout the article the authors tend to conflate references to committal hearings and committal proceedings more generally: David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1–2 May 1990 (Australian Institute of Criminology, January 1991) 5.

  45. In instances in which the term ‘committal’ is employed differently by a stakeholder, it is retained regardless of this for the purposes of direct quotes.

  46. Consultation 3 (CASA Forum).

  47. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 3 [1.9].

  48. Consultation 3 (CASA Forum).

  49. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 1.

  50. Victorian Law Reform Commission, Committals (Issues Paper, June 2019).

  51. Victims’ Charter Act 2006 (Vic) s 4(1)(ba), see also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 12 [2.4], 15 [2.21]–[2.34].

  52. Victims’ Charter Act 2006 (Vic) ss 4(1)(ba), 6(1), 7A(a). See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 24 [3.20]–[3.21].

  53. Victims’ Charter Act 2006 (Vic) s 4(1). The objects of the Victims’ Charter are based on United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN Doc A/Res/40/34 (29 November 1985); Victims’ Charter Act 2006 (Vic) s 4(2).

  54. Victims’ Charter Act 2006 (Vic) s 1(a).

  55. Ibid ss 6, 7A, 7B.

  56. Ibid s 7.

  57. Ibid ss 8, 9, 9A, 11.

  58. Ibid s 9B.

  59. See Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September 2016) 11, 76; Victims and Other Legislation Amendment Act 2018 (Vic), containing amendments to: Victims Charter Act 2006 (Vic), Victims of Crime Commissioner Act 2015 (Vic), Sentencing Act 1991 (Vic), Jury Directions Act 2015 (Vic), Children, Youth and Families Act 2005 (Vic).

  60. Consultations 2 (Victims of Crime Consultative Committee), 3 (CASA Forum), 5 (Victims of Crime Commissioner), 14 (Domestic Violence Victoria); Submissions 7 (knowmore), 9 (Australian Lawyers for Human Rights), 10 (Rape and Domestic Violence Services), 13 (Victoria Legal Aid), 19 (Victorian Aboriginal Legal Service), 23 (Victims of Crime Commissioner); Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 4; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 25 [3.24], 33 [3.75], 34 [3.78], 196 [8.1].

  61. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 3–4; Consultations 3 (CASA Forum), 5 (Victims of Crime Commissioner), 14 (Domestic Violence Victoria).

  62. Consultation 3 (CASA Forum), with reference to committal proceedings in particular; Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 3.

  63. Consultation 3 (CASA Forum).

  64. Submissions 4 (Director of Public Prosecutions (Victoria)), 6 (Office of the Public Advocate), 7 (knowmore), 9 (Australian Lawyers for Human Rights), 10 (Rape and Domestic Violence Services), 13 (Victoria Legal Aid), 19 (Victorian Aboriginal Legal Service), 23 (Victims of Crime Commissioner), 24 (Law Institute of Victoria), 25 (Victoria Police).

  65. Submissions 7 (knowmore), 10 (Rape and Domestic Violence Services), 23 (Victims of Crime Commissioner); Consultations 3 (CASA Forum), 5 (Victims of Crime Commissioner), 14 (Domestic Violence Victoria).

  66. Submissions 4 (Director of Public Prosecutions (Victoria)), 6 (Office of the Public Advocate), 7 (knowmore), 9 (Australian Lawyers for Human Rights), 10 (Rape and Domestic Violence Services), 13 (Victoria Legal Aid), 19 (Victorian Aboriginal Legal Service), 23 (Victims of Crime Commissioner), 24 (Law Institute of Victoria), 25 (Victoria Police). Consultations 3 (CASA Forum), 5 (Victims of Crime Commissioner), 14 (Domestic Violence Victoria).

  67. Consultation 14 (Domestic Violence Victoria).

  68. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 3.

  69. Australian Psychological Society, ‘Trauma’, Psychology Topics (Web Page, 2020) <https://www.psychology.org.au/for-the-public/Psychology-topics/Trauma>.

  70. Marie-Eve Leclerc et al, Assessing and Treating Traumatic Stress in Crime Victims (Research Brief, February 2017).

  71. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 4.

  72. Ibid. See also Jo-Anne Wemmers, ‘Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime’ (2013) 19(3) International Review of Victimology 221.

  73. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).

  74. Ibid ss 25(2)(a), (b).

  75. See Submissions 20 (County Court of Victoria), 22 (Supreme Court of Victoria).

  76. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14(1).

  77. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2).

  78. R v Carroll [2002] HCA 55, 6 (2002) 213 CLR 635, 643 (Gleeson CJ, Hayne J).

  79. R v Carroll [2002] HCA 55, 6 (Gleeson CJ, Hayne J).

  80. Victoria Legal Aid notes that some people who may not be able to afford private legal representation still do not qualify for legal aid. Victoria Legal Aid, ‘12—Means Test’, VLA Handbook for Lawyers (Online Handbook, 2 January 2020) <https://handbook.vla.vic.gov.au/handbook/12-means-test>. The means test requires an applicant to earn less than $360 per week and to have less than $1,095 worth of assessable assets in order for their case to be fully aided. Applicants who earn more than this or who have more assets will be required to contribute to the costs of their defence (ibid). To put this in perspective, the national minimum wage is currently $740 per week: Fair Work Ombudsman, Australian Government ‘Minimum Wages’, Pay (Web Page, 2020) <https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/minimum-wages#what-is-the-national-minimum-wage-order>.

  81. Submission 13 (Victoria Legal Aid).

  82. Ibid.

  83. Consultation 18 (Academic Roundtable).

  84. Ibid.

  85. Barton v The Queen (1980) 147 CLR 75, 99 (Gibbs ACJ and Mason J).

  86. Ibid 100 (Gibbs ACJ and Mason J).

  87. Barton v The Queen (1980) 147 CLR 75, 105 (Stephen J).

  88. R v Dupas [2006] VSC 481; (2006) 14 VR 228; Cook v The Queen [2019] VSCA 87.

  89. R v Dupas [2006] VSC 481; Cook v The Queen [2019] VSCA 87.

  90. See paragraphs 5.26–5.27 and 5.34–5.36 of this report.

  91. The Commission was told that the New South Wales Bureau of Crime Statistics and Research (BOCSAR) is undertaking an evaluation of the reforms: Consultation 32 (Local Court of New South Wales). The BOCSAR study has not been publicised. Professor Jeremy Gans urged the Commission to consider the impact of the New South Wales reforms before recommending ‘sweeping changes’ to Victoria’s committal system: Consultation 18 (Academic roundtable).

  92. See note 91, above.

  93. Sentencing Act 1991 (Vic) s 5(2)(e).

  94. Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D; Sentencing Act 2017 (SA) s 40.

  95. Sentencing Advisory Council Tasmania, Statutory Sentencing Reductions for Pleas of Guilty (Final Report No 10, October 2018) 82.

  96. Consultation 34 (Legal Aid New South Wales).

  97. Sentencing Advisory Council Tasmania, Statutory Sentencing Reductions for Pleas of Guilty (Final Report No 10, October 2018) 82.

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