1 This report is about improving committal and other pre-trial indictable procedures to reduce trauma for victims and witnesses, improve efficiency in the criminal justice system, and ensure fair trial rights.
The present committal and pre-trial system
2 Most indictable criminal cases start in the lower courts. They progress through the ‘committal stream’ until either:
i) the accused is committed by order of the Magistrates’ or Children’s Court for trial or sentence in a higher court
ii) the matter resolves summarily, or
iii) the prosecution is discontinued.
3 The Criminal Procedure Act 2009 (Vic) sets out the role of the lower courts in managing indictable cases. This includes ensuring a fair trial through disclosure of evidence and cross-examination of witnesses; narrowing the issues in contention; determining how the accused proposes to plead and resolving matters where possible.
4 This culminates with a magistrate determining if the evidence is of sufficient weight to support a conviction (the test for committal or committal determination).
5 The case management conducted by the lower courts and the committal determination together constitute ‘committal proceedings’.
6 Pre-trial case management also occurs in the higher courts after the accused has been committed for trial.
7 The flow chart on page 17 illustrates the main components of the present system.
Committal system and indictable case data
8 Each year, approximately 3000 criminal cases go through some form of committal proceeding. Around 30 per cent of these resolve in the Magistrates’ Court. Around 60 per cent are committed to the County Court, around half of these for trial, the other half for sentence following a plea of guilty in the Magistrates’ Court. A further four per cent are tried or sentenced in the Supreme Court.
9 Gaps in the data make it difficult to tell how common it is for victims and other civilian witnesses to be cross-examined more than once before trial, or both before trial and again at trial.
10 Inadequate data collection also makes it difficult to identify when and why avoidable delay occurs.
11 Data collection systems should be improved so that the performance of the criminal justice system can be better understood and evaluated.
12 Notwithstanding the limitations in the data, it appears that:
i) delay in indictable matters is no worse in Victoria than in other Australian states and territories, and Victoria compares favourably to most other jurisdictions
ii) late guilty pleas are not more of a problem in Victoria than elsewhere.
The test for committal
13 Currently, magistrates must consider the evidence to determine if it is of sufficient weight to support a conviction for an indictable offence (the test for committal or committal determination).
14 While the rationale for applying a committal test is sound—to provide independent scrutiny of an indictable prosecution—requiring it in all indictable stream matters is unnecessary; therefore the test should be abolished. The lower courts should, however, be empowered to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction.
Should the lower courts conduct indictable case management?
15 It is now generally accepted that best practice case management requires the trial judge to deal with pre-trial case management. That has not, however, been the practice historically in Victoria for indictable matters. Further, the evidence suggests that the lower courts manage committal proceedings effectively and it would not be prudent to change the system at present. The same considerations do not apply to the Supreme Court. It is appropriate for the Supreme Court to deal with indictable offences within its exclusive jurisdiction from inception, consistent with modern case management principles.
16 Apart from Children’s Court cases, cases within the exclusive jurisdiction of the Supreme Court should be filed in and managed by that Court, but only if this change is accompanied by adequate resourcing.
17 There is scope to improve pre-trial procedure in the lower courts. As well as abolishing the test for committal, changes should be made to other procedures to improve efficiency while also ensuring fair trial rights and reducing trauma for victims and witnesses. These changes are set out in Chapters 6–12.
Reforming pre-trial indictable case management: outline of a new system
18 A single issues hearing should replace committal mention hearings and committal hearings. When cases are transferred to the County Court by order of a magistrate (assuming the test for committal is abolished and Supreme Court matters are filed in the Supreme Court), they should be accompanied by an issues hearing report so that judges in the County Court know about issues that arose in the lower court.
19 The Director of Public Prosecutions (DPP) should assume formal prosecutorial responsibility in indictable matters at the filing hearing.
20 The flow chart on page 65 illustrates the main components of the proposed system.
Role of the DPP and defence practitioners
21 To address issues related to charging and disclosure, the DPP should be actively engaged in the conduct of indictable proceedings in the lower courts.
22 Measures should also be taken to ensure the early and continuous involvement of prosecution and defence practitioners.
23 Overcharging involves unnecessarily filing more charges than are ultimately indicted or pleaded. To address this, the DPP should provide binding charging instructions to informants in cases where there has been an investigation prior to apprehension of the alleged offender. In other cases, the DPP should review the charges within seven days of being provided with the brief of evidence.
24 Other measures to reduce overcharging include providing training to Victoria Police officers.
25 The prosecution should ensure that victims are informed about and consulted in relation to decisions to withdraw charges or discontinue a prosecution.
26 Inadequate early disclosure is a problem. A range of measure should be taken to address it, including making the DPP responsible for disclosure to the accused, and the informant responsible for disclosure to the DPP.
27 Other measures include clarifying that the prosecution must disclose the general existence of material that the informant objects to producing in the hand-up brief; further expanding the list of material that the Criminal Procedure Act 2009 (Vic) specifies must be included in the hand-up brief; and requiring the informant to give disclosure evidence at an issues hearing.
Forensic reports and delay
28 Achieving timely disclosure of forensic evidence is difficult and the provision of forensic reports is a major source of delay. Some of this delay may be unavoidable given the time required to conduct some forms of forensic analysis, but better funding of forensic service providers and case conferencing between the parties and forensic analysts should reduce delay.
29 Pre-trial cross-examination often contributes to early resolution and better disclosure but it can also be stressful or traumatising for victims and other witnesses. The current test for leave to cross-examine at a committal hearing should be applied more strictly in accordance with its terms, and additional criteria for leave should apply in some cases.
30 Existing prohibitions on cross-examination should be extended to include all cases involving family violence where the complainant was a child or person with a cognitive impairment when the proceedings commenced.
31 The intermediaries pilot program should be expanded to assist all witnesses with communication difficulties, and alternative arrangements for giving evidence should be used wherever necessary to reduce trauma for victims and witnesses.
32 As a specialist jurisdiction the Children’s Court should continue to manage committal proceedings, including cases within the exclusive jurisdiction of the Supreme Court.
33 The Children Youth and Families Act 2005 (Vic) should be amended to clarify certain processes in the Children’s Court.
Percentages do not add up to exactly 100 because they are approximate only.