6. Reforming pre-trial indictable case management: outline of a new system
6.1 This chapter sets out the main elements of the Commission’s proposed system for pre-trial indictable case management, designed to address negative features of the present system. A key initiative is the creation of a single issues hearing to replace committal mention hearings and committal hearings.
6.2 Some reform proposals—such as that the Director of Public Prosecutions (DPP) should have formal conduct of indictable stream matters from the filing hearing—are referred to briefly in this chapter because of their centrality to how indictable stream cases will travel through the courts, but the rationale for their adoption is discussed separately in subsequent chapters. These chapters add detail about specific areas in which additional reform is required, in relation to charging practices, disclosure, and cross-examination. The current chapter concludes by discussing the need to resource more active case management in all courts, and the resourcing implications of the proposed system.
6.3 With some modifications where appropriate, the case management proposals in this chapter could be adopted by the Supreme Court if the Commission’s recommendation to file Supreme Court charges in that Court is implemented.
New pre-trial procedures
6.4 The reform proposals below are set out in order of the chronology of the pre-trial process.
Commencing indictable proceedings
6.5 While it should remain the informant’s responsibility to file charges, the DPP should assume formal prosecutorial responsibility for all indictable stream matters from the time of the filing hearing onwards. The rationale for this is discussed in Chapter 7 on the role of the DPP and Chapter 8 on charging practices.
8 The Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions to assume formal prosecutorial responsibility in cases involving indictable offences from the filing hearing onwards.
Figure 2: Proposed pre-trial case management system
Service of hand-up brief
6.6 Currently, the hand-up brief must be served within five months of the commencement of proceedings, or within two months if a sexual offence is involved, except where the Magistrates’ Court decides it is in the interests of justice to extend this time frame. In practice, the magistrate at the filing hearing will usually order earlier service of the hand-up brief. In straight-forward cases, service is typically required within six weeks of the filing hearing.
6.7 The time frames for service of the hand-up brief in the Criminal Procedure Act 2009 (Vic) (CPA) allow for a degree of flexibility and a case-by-case approach. The Magistrates’ Court of Victoria suggests this is appropriate, given that:
An extended period for service of the [hand-up brief] is often required for certain charges, eg. murder. However, this should be considered on a case-by-case basis, be properly justified, and not become a standard for any category of offending. It is often quite realistic for an incomplete brief to be served within [a] 6-week period with the remainder served prior to committal mention.
6.8 While the current approach allows the court to be appropriately responsive to the varying circumstances of each case, magistrates should be encouraged to closely scrutinise the case at hand, and to allow only the minimum time necessary for service of the hand-up brief.
6.9 A consequence of the Commission’s recommendation that the DPP has formal prosecutorial responsibility for indictable stream matters from filing hearing onwards is that the DPP will be responsible for filing the hand-up brief and serving it on the accused. Preparation of the hand-up brief should remain the informant’s responsibility, but the DPP should assist and advise the informant in this regard. This is discussed further in Chapter 9 on disclosure. Here it is only necessary to note that the informant should provide progressive disclosure to the DPP, so that the DPP is aware of the contents of the brief and able to file and serve it within the time frame set by the court.
Contents of the hand-up brief
6.10 Recommendations for expanding the materials that must be included in the hand-up brief are made in Chapter 9 on disclosure. Chapter 9 also discusses the need to clarify how to identify in the hand-up brief items that the informant objects to disclosing on grounds such as public interest immunity.
Case direction notice
6.11 Currently, the parties must engage in discussions at least 14 days before the committal mention hearing. The purpose of these discussions is to explore early resolution of the case and, where resolution cannot be achieved, to identify the issues in dispute and any witnesses whom the accused will seek leave to cross-examine. A case direction notice recording the outcome of these discussions must be filed jointly by the parties seven days before the committal mention.
6.12 The case direction notice may also be used to indicate that the accused will apply for a summary hearing. The Victorian Aboriginal Legal Service told the Commission that when an Aboriginal accused makes an application for summary jurisdiction, he or she will often at the same time make an application for Koori Court determination. This means the magistrate must determine at the committal mention hearing both whether the case is suitable for summary determination and if it meets the criteria for a Koori Court hearing. A concern raised by the Victorian Aboriginal Legal Service is that if this decision is not made by a Koori Court magistrate, its suitability may be challenged by the Koori Court magistrate when the case appears in the Koori Court.
6.13 Current provisions for early discussions between the parties and the joint filing of a case direction notice should be retained, although the prescribed timeframe for discussions should be set with reference to the proposed issues hearing, discussed below, rather than the committal mention hearing. A revised case direction notice should support the same purposes as current case direction notices, to promote early resolution discussions, and contain the same fields for identification of the issues in dispute, such as applications for leave to cross-examine witnesses. If an application for summary jurisdiction includes an application for a Koori Court hearing, this should also be stated in the revised case direction notice, allowing the Magistrates’ Court registrar to list the issues hearing before a Koori Court magistrate.
9 The Criminal Procedure Act 2009 (Vic) should be amended to require that a case direction notice is filed before an issues hearing rather than a committal mention hearing.
10 If an application for summary jurisdiction includes an application for a Koori Court hearing, this should be stated in the case direction notice and the Magistrates’ Court registrar should list the issues hearing before a Koori Court magistrate.
Court-supervised case conferences
6.14 Although the Magistrates’ Court may direct the parties to appear at a committal case conference conducted by a magistrate, conferences are currently confined to matters involving offences against the person, robbery, armed robbery or aggravated burglary.
6.15 The conferences provide an opportunity for magistrates to question parties about failures to engage actively in early resolution discussions and to identify and narrow the issues in dispute. The parties can raise disclosure issues and the court can provide its views regarding the strength of the prosecution case, the suitability of the charges, and how the issues could be narrowed.
6.16 A significant minority of indictable stream cases resolve summarily at committal case conferences: ten per cent in 2016–17 and seven per cent in 2017–18. These results could be improved through more consistent and engaged case management in the Magistrates’ Court. The Commission recommends extension of court-supervised conferences to all indictable stream matters.
6.17 The conferences should be conducted on the same day as the issues hearing (discussed below). If the Commission’s recommendation to abolish the test for committal is implemented, magistrates will have more scope to actively engage parties about resolving or narrowing the issues in the case.
11 Section 127 of the Criminal Procedure Act 2009 (Vic) should be amended to require that a case conference be conducted during an issues hearing in all indictable cases, regardless of offence type.
6.18 Generally speaking, committal proceedings do not themselves contribute to undue delay—other factors such as failure to obtain forensic evidence promptly and inadequate preparation by the parties are the main causes of delay. How committal hearings are currently conducted can, however, cause delay. If a committal hearing is adjourned, the challenge of finding a new court date when the magistrate and parties are available can be exacerbated by the need to accommodate witnesses and to combine witness cross-examination with submissions from counsel and the magistrate’s determination of the test for committal.
6.19 Abolishing the test for committal, as recommended in Chapter 4, will allow the committal mention and the committal hearing to be combined into a single ‘issues hearing’.
6.20 The notion of an issues hearing to replace committal mention hearings was advanced by the DPP in 2018, along with other reforms such as fast-track procedures for certain categories of cases. The Commission is not recommending the adoption of those other reforms and its proposed issues hearing will function differently to that envisaged by the DPP.
6.21 The Court should determine applications for leave to cross-examine witnesses at the issues hearing. If leave to cross-examine is granted, the issues hearing could be adjourned, with cross-examination scheduled in a flexible manner—rather than being tied, as is currently the case, to a single committal hearing that culminates with the Magistrates’ Court determining the test for committal. This will remove the potential for delay caused by having to schedule witness cross-examination for a dedicated hearing where the magistrate also takes submissions from the parties.
6.22 As discussed earlier, the court should conduct a case conference at the issues hearing in order to encourage resolution where possible, or to identify and narrow the issues for trial.
6.23 At the issues hearing, the Magistrates’ Court could also:
• hear an application for summary jurisdiction, conduct a summary hearing, or list a matter for summary hearing
• hear an application for Koori Court
• hear a discharge application
• hear and determine any objection to the production of material, or order the matter be transferred to the County Court for consideration of an objection to the production of material
• order the accused appear for plea and sentence in the County Court on a date to be determined
• order the accused stand trial in the County Court on a date to be determined.
6.24 The attendance of the informant at the issues hearing should be obligatory. Informants will be required to confirm on oath that they have disclosed all relevant material in their possession or knowledge, and that they have made all reasonable enquiries about the existence of such material (see Chapter 9).
6.25 Currently, the higher courts have inadequate information about what happened in cases before them while those cases were in the lower courts.
6.26 This issue would be partly remedied by more effective and integrated court data management systems. The Commission also recommends introducing a requirement that magistrates complete an ‘issues hearing report’ for transmission to the higher court.
6.27 The proposed issues hearing report will include details of:
• any issues raised before the magistrate
• if the informant objected to production of material, the grounds for the objection and the court’s determination in relation to it
• any outstanding disclosure items sought by the accused, or disclosure issues that are likely to arise
• any other matter that the Magistrates’ Court regards as relevant to the higher court.
6.28 The issues hearing report should also include brief reference to key depositional material, including:
• whether or not the informant confirmed on oath that all relevant material had been fully disclosed
• if leave was sought to cross-examine witnesses; if leave was granted; and if witnesses were cross-examined (including details of the witnesses in question).
6.29 The issues hearing report may also include details of any failure by the parties to adequately complete the case direction notice or make concerted efforts to resolve the matter or narrow the issues in dispute.
6.30 Preparation of the issues hearing report need not be overly time consuming. A template could be used allowing some fields to be quickly populated. Copies of the report should be provided to the parties.
12 The Criminal Procedure Act 2009 (Vic) should be amended to replace committal mention hearings and committal hearings with an issues hearing.
13 Magistrates should be required to prepare an issues hearing report for transmission to the County Court.
Specialist lists in the County Court
6.31 At the initial directions hearing, a judge will categorise matters as suitable for management in one of the County Court’s specialist lists. The County Court’s current specialist lists are:
• sexual offences
• general crime (including the pilot Active Case Management System)
• long trial list
• Koori Court.
6.32 In addition to the existing lists, it may be appropriate to add a separate family violence list, or to create a joint family violence and sexual offences list, as the Commission’s recommendations in relation to pre-trial cross-examination require special protections for complainants in family violence matters to supplement the existing protections in sexual offence matters. It may also be appropriate to add a specialist Children’s Court list.
Case management in the Supreme Court
6.33 The main elements of the case management procedures proposed for the lower courts should be adopted, with appropriate modifications, in the Supreme Court. In particular, early discussions between the parties, joint completion of a case direction notice, and court supervised case conferences should be mandated.
6.34 While an issues hearing may take a somewhat different form, it should allow for disclosure issues to be raised and for informants to confirm on oath that they have discharged their disclosure obligations. The accused should be entitled to seek leave to cross-examine witnesses, and to have leave granted if the same conditions are met as apply in other cases.
Resourcing more active case management
6.35 Civil litigation reforms in the United Kingdom in 1999 represented ‘radical, arguably revolutionary, procedural change putting greater emphasis on settlement and giving greater control of litigation to the judiciary.’
6.36 While the benefits of the reforms continue to be debated, what became clear after their introduction was the importance of ensuring the courts were adequately resourced to meet the increased burden of case management. As the chairman of the Law Society’s Civil Litigation Committee noted:
Case management under Woolf has greatly increased the burden on the courts in driving the pace of litigation … If the civil justice reforms are to succeed they must have the support of an adequately resourced court infrastructure.
6.37 This comment applies equally to reforms promoting more active case management of criminal matters. Regardless of the jurisdiction in which case management occurs, active judicial oversight of proceedings imposes a burden on the court in terms of time and other resources. Examples of active case management by the courts include:
• careful scrutiny of applications for adjournment and a strict attitude towards granting them
• calling parties before the court to explain why they have not met procedural obligations
• more proactive use of costs orders to penalise delay
• mandated court-supervised case conferences, which require an understanding of the charges and issues.
Resourcing a system rather than its parts
6.38 The Supreme Court of Victoria pointed out that ‘Inefficiencies are created when one or more aspects of the system are not resourced to keep up with the processes of other parts of the system.’ As an example, it cites an increase in police resources leading to more investigations and arrests, and more charges being filed. A higher volume of prosecutions will necessarily place an additional burden on the courts that must hear and determine the charges.
6.39 The County Court attributes increased delays within its jurisdiction to—among other things—the ‘steady increase in initiations’ from 2014–15 to 2017–18.
6.40 If it is the case that prosecutions for indictable offences have been increasing and continue to do so, the entire criminal justice system should be adequately resourced to cater for this. More generally, reforms to specific elements of the criminal justice system will fail to deliver substantial and lasting benefits unless the flow-on effects of these reforms are catered for and resourced. For example, if indictable cases move more quickly through the jurisdiction of the lower courts, the overall time for their disposition will not improve if they simply swell existing backlogs in the higher courts—those backlogs must also be addressed.
Current personnel and infrastructure shortfalls
6.41 The Commission was told there are not currently enough magistrates to handle the committal stream caseload. This is said to be a particular problem in the regions, where other matters such as summary cases involving family violence offences are often given priority. The Commission also heard that the Magistrates’ Court does not have enough courtrooms with custody or video link facilities to hear indictable cases.
6.42 The Magistrates’ Court told the Commission a cause of delay in its conduct of committal proceedings is the need to adjourn committal hearings because of:
Lack of … resources both in magistrates and custody court rooms. More magistrates are required to be available to hear committal hearings. More court rooms are also required. Even with the Court’s lease of [two] court rooms in the County Court building, there is still a shortage of custody courts in the Melbourne Magistrates’ Court building.
6.43 The DPP told the Commission that magistrates ‘are under strain from ever-increasing work pressures.’
6.44 The Law Institute of Victoria pointed to under-resourcing of all courts, not just the Magistrates’ Court. It described this as a major contributor to delay:
The capacity of the three courts is limited by the number of suitable courtrooms, the competing uses for these courts (i.e. civil and criminal matters) and the number of judicial officers with relevant experience in criminal law to hear a matter.
6.45 The Law Institute calls for investment in court infrastructure, citing a claim in The Court Services Victoria Strategic Asset Plan that:
Current and historical funding for court asset management has been constrained and below levels that are required to maintain and develop appropriate court environments.
Resource implications of case management recommendations
6.46 If the Commission’s recommendation to abolish the test for committal is implemented, this should reduce the Magistrates’ Court’s workload in respect of indictable stream matters.
The Commission’s recommendation for more court-supervised case conferences will, however, add to that workload. Meanwhile, the opportunity to cross-examine witnesses at an issues hearing will continue to impose a burden on Magistrates’ Court resources.
6.47 Additional funding will therefore be required to redress existing shortages of magistrates and a scarcity of courtrooms in the Melbourne Magistrates’ Court.
6.48 Additional funding will be required to resource the Commission’s recommendation that charges within the exclusive jurisdiction of the Supreme Court are filed there.
Resource implications of abolishing committal proceedings
6.49 If—contrary to the Commission’s recommendations—the bulk of pre-trial case management is moved into the County Court, this will require large-scale funding.
6.50 Both the County and the Supreme Courts submitted that moving elements of committal proceedings into the higher courts would require additional funding for these courts. They argued that these additional resources would be offset by savings in the Magistrates’ Court.
6.51 Neither higher court provided an estimate of the figures involved, although the Supreme Court outlined the range of resources it would require. The Supreme Court told the Commission the resources necessary would include:
• ‘judge resources to reduce [existing] trial backlogs and facilitate early management
• judicial registrar…resources for case management tasks including aspects of pre-trial cross examination
• staff support to maximise the capacity of judicial resources and undertake out of court management to reduce adjournments and the need for appearances
• consequential costs associated with the above reflective of having a greater number of matters running at a given time including jury and transcript costs and accommodation.’
6.52 The County Court submitted that ‘any transfer of pre-trial cross-examination to the County Court must be supported by appropriate resource allocation, prior to implementation.’
6.53 It added more generally:
a significant change in procedure must be accompanied by pre-emptive funding that meets the increased demand on the County Court …The Court is unanimously opposed to any reforms to committals without upfront and appropriate resource allocation.
14 The courts should be adequately funded to support any changes to their case management role.
This time frame is established by Criminal Procedure Act 2009 (Vic) ss 126, 108. Section 126 requires a committal mention hearing to be held within three months after the commencement of proceedings in cases involving a sexual offence and within six months in all other cases, unless the Magistrates’ Court fixes a longer period because it is satisfied it is in the interests of justice to do so. Section 108 requires a hand–up brief to be served at least 42 days before the committal mention hearing, unless the Magistrates’ Court fixes another period for service or the accused gives written consent to a lesser period.
Submission 14 (Magistrates’ Court of Victoria).
Magistrates’ Court of Victoria, Practice Direction 6 of 2013: Directions Concerning the Case Direction Notice, 10 October 2013.
Criminal Procedure Act 2009 (Vic) s 118.
Submission 19 (Victorian Aboriginal Legal Service).
Criminal Procedure Act 2009 (Vic) s 127.
Submissions 11 (Criminal Bar Association (Victoria)), 14 (Magistrates’ Court of Victoria), 15 (Liberty Victoria).
Submissions 20 (County Court of Victoria), 22 (Supreme Court of Victoria), 24 (Law Institute of Victoria).
Director of Public Prosecutions, Office of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018), appended to Submission 4 (Director of Public Prosecutions (Victoria)).
As is currently the case, the accused should provide details of any applications to cross-examine witnesses in the case direction notice: Criminal Procedure Act 2009 (Vic) s 119.
See further discussion in Chapter 9.
See the discussion in Chapter 3.
See Chapter 11.
Susan Moloney, ‘A New Approach to Civil Litigation? The Implementation of the “Woolf Reforms” and Judicial Case Management’ (2001) 2(1) Judicial Studies Institute Journal 98, 100.
Fraser Whitehead cited in Susan Moloney, ‘A New Approach to Civil Litigation? The Implementation of the “Woolf Reforms” and Judicial Case Management’ (2001) 2(1) Judicial Studies Institute Journal 98, 104.
Submission 22 (Supreme Court of Victoria).
Submission 20 (County Court of Victoria).
Submission 24 (Law Institute of Victoria).
Submission 13 (Victoria Legal Aid), Consultation 29 (Bendigo Magistrates’ Court).
Submission 14 (Magistrates’ Court of Victoria); Consultations 8 (Victoria Legal Aid), 16 (LaTrobe Valley practitioners).
Submission 14 (Magistrates’ Court of Victoria).
Submission 4 (Director of Public Prosecutions (Victoria)).
Submission 24 (Law Institute of Victoria).
Court Services Victoria, Strategic Asset Plan 2016-2031 (Report 2016) 10; Submission 24 (Law Institute of Victoria).
Submission 14 (Magistrates’ Court of Victoria).
Submissions 20 (County Court of Victoria), 22 (Supreme Court of Victoria).
Submission 22 (Supreme Court of Victoria).
Submission 20 (County Court).