The preparation for trial of indictable offences through the committal process is a most significant matter for the system of criminal justice. The efficient and fair management of that process impacts not only on the direct participants in the criminal proceeding, the accused and the prosecution, but also on victims, witnesses, and the wider circle of citizens who are linked to them. About 3000 indictable cases are initiated each year so the committals process affects many people, and it is critical to get the process right. Minimising the trauma to victims of crime, enhancing the efficiency of the criminal justice system, and maintaining the rights of the accused to a fair trial were critical elements in the terms of reference; the Commission has sought to achieve these goals.
As the Commission explored the issues raised by the reference, several conundrums emerged. The first was the lack of data about the way the committal process was working, whether positive or negative. For instance, it is accepted that in most cases witnesses find it stressful and distressing to be cross-examined more than once during criminal proceedings. Yet there is no data available to show how often this happens. The Commission adopts an evidence-based approach to law reform, so this lack of data presents a barrier to proper consideration for the need for reform, or the direction of it.
The second conundrum arose over the role of the Magistrates’ Court in the present committal system. Even though there was a lack of comprehensive data, the Commission has come to the view that the Magistrates’ Court has demonstrated that it is able to administer the committal system effectively, particularly if certain suggested improvements are made. However, for the Magistrates’ Court to continue to manage indictable offences is contrary to the prevailing notions of optimum case management, according to which view it is generally accepted that cases are best managed by the judge who will hear the trial.
So the question for the Commission was how to make a choice between a system which might be ideal and a system which already functions effectively in the real world. The Commission favoured the existing system, essentially for two reasons. One: the present system is known and working; and two: the cost of change is likely to be significant. The course taken by the Commission shows that law reform is a complex exercise in balancing the ideal with the pragmatic; and there are times when law reform is best achieved through evolution rather than revolution.
Having said this, the Commission has recommended a number of creative reforms which have the potential to make fundamental improvements to the system. To mention a couple: the Commission suggests the abolition of the test for committal and its replacement with the power of the Magistrates’ Court to discharge an accused, on an application made by the accused, on the ground that there is no reasonable prospect of conviction. Another innovation is the requirement that an informant give sworn evidence to a magistrate that the disclosure obligations of the prosecution have been met. Both these innovations would act as safeguards of fair trial rights.
The report of the Commission is the product of very hard work by Emma Larking and Briana Proud. The research and policy team was led by Michael McKiterick. Jonathan O’Donohue and Michael Hepworth also contributed. I thank the Commissioners for their diligent work, in particular Bruce Gardner PSM and Dan Nicholson, who constituted the Division on this inquiry. Bruce led the reference until my appointment as Chair in August 2019. The Hon. Frank Vincent AO QC and Liana Buchanan were also members of the Division until October and December 2019 respectively. I acknowledge too the important contribution of the Hon. Philip Cummins AM who was Chair of the Commission from the commencement of this reference until his death in February 2019.
The team benefited from input from a large number of written submissions and from consultations with the wide range of bodies and people involved in and affected by the committal system. Those who made submissions and participated in consultations provided the Commission with the foundations on which the report is based. I express my appreciation for the assistance provided by all of those people and by the bodies for whom they spoke.
The draft report was scrutinised in detail for editorial flaws by Nick Gadd and Gemma Walsh in their usual meticulous way. These acknowledgements would not be complete without a generous thank you to Merrin Mason, the CEO of the Commission, who along with keeping the Commission running smoothly, ensured the wellbeing of staff and kept the team going as a happy committed and functioning group.
The Hon. Anthony M. North QC
Chair, Victorian Law Reform Commission