Committals: Report

Recommendations

Chapter 3 Committal system and indictable case data

1 The Magistrates’ and Children’s Courts should collect detailed data about pre-trial

cross-examination.

2 The case management systems used by the Magistrates’ and Children’s Courts should be linked with the higher courts’ case management systems to enable the creation of a single electronic case file for indictable cases.

Chapter 4 The test for committal

3 The test for committal, which involves a magistrate assessing if the evidence is of sufficient weight to support a conviction for an indictable offence (referred to in chapter 4, part 4.9 of the Criminal Procedure Act 2009 (Vic) as the committal determination) should be abolished.

4 In place of an order for committal, the mechanism for transfer of indictable charges from the lower courts should be an order of the Magistrates’ or Children’s Court that the accused either:

(a) appear for plea and sentence in a higher court on a date to be determined, or

(b) stand trial in a higher court on a date to be determined.

5 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the accused may apply to the Magistrates’ or Children’s Court for an order that the accused be discharged and to empower the Magistrates’ and Children’s Courts to discharge the accused on the relevant indictable charge or charges if satisfied that there is no reasonable prospect of conviction.

Chapter 5 Should the lower courts conduct indictable case management?

6 The lower courts should retain a case management function for indictable stream matters that will be heard in the County Court.

7 The Criminal Procedure Act 2009 (Vic) should be amended to require that matters within the exclusive jurisdiction of the Supreme Court are filed in the Supreme Court, aside from Children’s Court matters.

Chapter 6 Reforming pre-trial case management: outline of a
new system

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.

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.

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.

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.

14 The courts should be adequately funded to support any changes to their case management role.

Chapter 7 Role of the DPP and defence practitioners

15 Experienced practitioners should be engaged at an early stage in proceedings and have continuing responsibility for the case until trial or resolution.

16 The Director of Public Prosecutions and Victoria Legal Aid should be provided with additional funding to ensure experienced practitioners have oversight of committal proceedings from the outset and are responsible for the conduct of matters until final resolution, including in the higher courts.

17 Fee structures at Victoria Legal Aid and the Office of Public Prosecutions should provide for the early involvement of counsel and to ensure continuity of representation.

18 Victoria Legal Aid and the Office of Public Prosecutions should regularly and publicly report, preferably in their annual reports, on:

(a) measures used to ensure legal practitioners acting in indictable matters retain responsibility for those matters for the lifetime of the prosecution

(b) the success of these measures.

Chapter 8 Charging practices

19 Victoria Police officers should receive regular and up-to-date charging training.

20 In cases where indictable charges are filed immediately following apprehension, the Director of Public Prosecutions should review the charges within seven days of receipt of the hand-up brief from the informant.

21 In cases involving a suspected indictable offence that has been the subject of an ongoing investigation prior to arrest, the investigating agency should prepare an ‘initial charge brief’. This should be provided to the Director of Public Prosecutions before any charge sheet is filed.

22 The Director of Public Prosecutions should review any ‘initial charge brief’ received and provide charge instructions to the informant. Charge instructions should be binding on the informant.

23 The Criminal Procedure Act 2009 (Vic) should be amended to give the Director of Public Prosecutions the power to withdraw, amend or file charges in the Magistrates’ and Children’s Courts.

Chapter 9 Disclosure

24 While the informant should be required to prepare the brief of evidence, the Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions (DPP) to file and serve the brief and assume all obligations of disclosure to the accused currently imposed by the Act on the informant. The DPP should ensure the existence of material that the informant objects to producing is communicated to the accused.

25 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the Director of Public Prosecutions’ disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.

26 The Public Prosecutions Act 1994 (Vic) should be amended to empower the Director of Public Prosecutions to make enquiries of the informant in relation to disclosure, and to require the informant to respond to those enquiries.

27 Additional resources should be provided to the Office of Public Prosecutions to allow it to manage its increased disclosure obligations.

28 Part 4.4 of the Criminal Procedure Act 2009 (Vic) should be amended to make it clear that the informant has a continuing obligation of disclosure to the Director of Public Prosecutions (DPP). This obligation commences at the filing hearing and includes preparation of the hand-up brief, which must be provided to the DPP before the date specified by the Magistrates’ Court at the filing hearing for service of the hand-up brief on the accused.

29 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the informant’s disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.

30 The Criminal Procedure Act 2009 (Vic) should be amended to specify that informants have an obligation to retain potentially disclosable material for as long as their disclosure obligations continue.

31 Systems should be established at investigating agencies to ensure that:

(a) informants are made aware of, or able to obtain information concerning, potentially disclosable material that exists or is known about within other parts of the agency

(b) potentially disclosable material is retained and not destroyed.

32 The Criminal Procedure Act 2009 (Vic) should be amended to require the informant, unless excused by the court, to appear at the issues hearing and provide evidence that:

(a) all available relevant material has been disclosed to the Director of Public Prosecutions

(b) all reasonable enquiries have been made by the informant to determine if there is any additional relevant material in existence.

33 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the informant’s disclosure obligations to the Director of Public Prosecutions (DPP) apply regardless of claims of privilege, public interest immunity, or statutory immunity, but where such claims are made, the material that is the subject of these claims need not be produced to the DPP. The informant must indicate to the DPP the grounds on which the objection to production is made.

34 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to require reference in the hand-up brief to the general existence of material that the informant objects to producing and the grounds for the objection.

35 The Magistrates’ Court Rules 2019 should be amended to clarify that the list of contents that must accompany the hand-up brief and be signed by the informant (currently Magistrates’ Court Form 30) includes a field noting the existence of material, if any, that the informant objects to producing.

36 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include a section explaining that a hand-up brief must disclose all relevant material, including all information, documents or other things obtained during the investigation that are exculpatory or might reasonably be expected to:

(a) undermine the case for the prosecution or

(b) assist the case for the accused.

37 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include, in addition to the other materials that a hand-up brief must contain, a list of the materials contained in the list of ‘Standard Disclosure Material’ currently set out in Magistrates’ Court Practice Direction No 3 of 2019.

Chapter 10 Forensic reports and delay

38 Funding for forensic service providers should be increased to support faster preparation of forensic reports.

39 Forensic service providers should publicise current turnaround times for the provision of reports and the courts should have regard to these when setting dates for the service of reports.

40 Forensic case conferencing between forensic experts and the prosecution, based on the existing model used in clandestine laboratory drug cases, should be adopted in all cases where forensic evidence is in issue.

41 Forensic case conferencing between forensic experts and defence practitioners should be encouraged in cases where forensic evidence is in issue.

Chapter 11 Pre-trial cross-examination

42 Section 123 of the Criminal Procedure Act 2009 (Vic) should be amended to prohibit cross-examination in the lower courts of any witnesses in cases where the complainant was a child or person with a cognitive impairment when the proceedings commenced and where the conduct constituting the offence involves family violence within the meaning of the Family Violence Protection Act 2008 (Vic).

43 Any amendments to expand section 123 to include family violence offences should be accompanied by appropriate resourcing of the Courts, the Office of Public Prosecutions, Victoria Police and Victoria Legal Aid.

44 There should be a formal evaluation of the operation of the scheme created by sections 123 and 198A of the Criminal Procedure Act 2009 (Vic) to determine if it is operating in the best interests of victims and witnesses, and its broader resource implications.

45 Section 124(5) of the Criminal Procedure Act 2009 (Vic) should be amended to require that the considerations in the section also apply to applications for leave to cross-examine witnesses with a cognitive impairment, and victims in cases involving sexual or family violence.

46 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to require a magistrate to provide written reasons why, with reference to sections 124(3) – (5), leave was granted to cross-examine witnesses.

47 The Criminal Procedure Act 2009 (Vic) should be amended to allow for an intermediary to be appointed to assess any witness with communication difficulties following an application by a party or on the court’s own motion.

48 Division 4 of part 8.2 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the court may make directions for alternative arrangements for taking the evidence of any witness where the interests of justice so require, and taking into account the need to minimise trauma for victims and witnesses.

Chapter 12 Children’s Court

49 The Children, Youth and Families Act 2005 (Vic) should be amended to require applications for summary jurisdiction be made prior to, or at, the issues hearing. Applications for summary jurisdiction should only be made after an issues hearing in exceptional circumstances.

50 The Children, Youth and Families Act 2005 (Vic) and the Criminal Procedure Act 2009 (Vic) should be amended to permit issues hearings to be held jointly in cases involving child and adult co-accused.

51 The Children, Youth and Families Act 2005 (Vic) should be amended to allow the Children’s Court to transfer related indictable offences for hearing and determination in the County or Supreme Courts, in cases that are uplifted from its jurisdiction.

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