Nick Gadd & Gemma Walsh
Michael McKiterick, team leader, Committals, Victorian Law Reform Commission
Brianna Proud, research and policy officer, Committals, Victorian Law Reform Commission
Gemma Walsh: Welcome to Old Law, New Law, a podcast by us at the Victorian Law Reform Commission. I’m Gemma Walsh …
Nick Gadd: And I’m Nick Gadd. It’s great to have you with us. In these podcasts we will be asking what’s wrong with the law? How can we fix it? And how can we make the law clearer, more up-to-date and fairer?
Gemma Walsh: Today, we’re looking at the Victorian pre-trial process, in particular, committal hearings, which is the focus of a VLRC inquiry. We are talking to Michael McKiterick, the team leader, and Briana Proud, Senior Policy and Research Officer with the Committals Inquiry.
Gemma Walsh:Many people in the community might not realise that there are a lot of steps to go through before someone is put on trial. So, let’s talk about committals and other pre-trial proceedings. What was the original purpose of committals? Michael?
Michael McKiterick: So, a committal proceeding is a process in which indictable criminal charges, which are serious criminal charges, are transferred from a lower court – that’s where the charges are filed – up to a higher court, which, in Victoria, that’s the County or Supreme Courts. But what the original purpose of the committal proceeding was is to act as a filter, so to ensure that unfounded criminal charges were not pursued to trial. And the rationale was that an accused person should not have to go to the expense and also the stress of a criminal trial in relation to charges that would seem to be wanton or misconceived. So, one of the things about the committal process at the moment in Victoria is that the magistrate commits the charges for trial, commits the matter for trial. And what that means is that the magistrate says that there is enough evidence to support a conviction for a particular charge.
Nick Gadd:That’s what the term committal actually means? It’s a magistrate deciding, yeah, this person can go to trial, there’s enough evidence?
Michael McKiterick: Yes, so the magistrate can still, for example, determine that there isn’t enough evidence for a particular charge to go forward and so that matter isn’t committed to trial.
Gemma Walsh: What else are committal proceedings used for?
Michael McKiterick: As they developed, they came to serve a number of really, really important purposes. One of those was to ensure that an accused person knew the nature of the case against him or her, and that case being made by the prosecution was fully disclosed to an accused person. One of the things they do is to give an accused person the opportunity to test evidence before that goes to trial.
Nick Gadd: So, let’s imagine an example. Let’s say, Charlie got into a fight outside a pub. Someone got hurt. Charlie was arrested by the police, charged with a number of offences, some of them serious or indictable offences, some of them less serious charges, and he’s been brought to court to face the music. Bree, what happens next, can you take us through the steps?
Briana Proud: If, for example, in the fight, Charlie caused another person relatively serious injury, the police officer might charge him with an offence called Intentionally Causing Serious Injury. That is an indictable charge, which the law says has to be dealt with by the County Court. It is too serious a charge to be dealt with by the Magistrates’ Court. So, Charlie’s case, when he arrives in court in custody, is going to be in what’s called the ‘indictable stream’ of the Magistrates’ Court.
Nick Gadd: And the first hearing is called the Filing Hearing. What is that and what happens?
Briana Proud: It is the first hearing where magistrates outline a number of important dates for Charlie’s lawyers, prosecution lawyers and police to do certain things. The main thing is for the police officer who charges Charlie with this charge of Intentionally Causing Serious Injury to prepare what is called a ‘brief of evidence’. A brief of evidence contains all the information that the police rely upon to prove the charges against Charlie. And in his case, it might include witness statements from people who saw the fight; it might include CCTV footage; and it could include also some really important medical evidence from a doctor about what type of injury the victim in Charlie’s case sustained.
Gemma Walsh: So, the parties receive this brief of evidence. They can then start to negotiate the charges before returning to court for the next step, the committal mention. What could happen there?
Briana Proud: In Charlie’s case, if the parties arrived at a committal mention hearing and the prosecution agreed, based on the evidence in the case, that the injury to the victim wasn’t so serious as the police originally thought, then Charlie could make what’s called an Application for Summary Jurisdiction. Now, what that means is that a magistrate could hear Charlie’s case, but only if the more serious indictable charge is taken away by the police. So, if that is agreed to by the magistrate, the police, the prosecution and the defence, then a magistrate can deal with Charlie’s case in the Magistrates’ Court. And that can often happen relatively quickly.
However, if Charlie decides that he is happy to plead guilty to the more serious charge, being Intentionally Causing Serious Injury, for example, that case would need to be dealt with in the County Court.
Nick Gadd: And have they called any witnesses by this stage? Anything like that?
Briana Proud: So, not at this point, when we are still talking about the brief of evidence disclosure, [where] police, prosecution and defence all having conversations around what material should be provided. But after the committal mention hearing, it might be that there isn’t actually going to be any agreement in Charlie’s case. And the defence lawyers for Charlie might be saying that they would like to test some evidence, and they might also be saying that they haven’t got all of the evidence yet from the police or the prosecution.
Nick Gadd: So, there could be some delays in all this process?
Briana Proud: Yes, of course, and there’s naturally going to be time between each court hearing for really basic reasons, such as the fact that there are lots of different cases going through the court. Lots of different things have to happen between the court dates, such as e-mails being sent between the parties, documents being provided, courts having physical courtrooms available to hear cases, courts having magistrates available to hear cases, lawyers being available. There’s lots of different things that go into when a court date will be next heard, when there’s a next court date in a case.
Nick Gadd: Okay, we know that in the great majority of cases the accused person pleads guilty at some point, but let’s say that Charlie and his lawyer decides to defend the matter and plead not guilty. What happens then?
Briana Proud: If Charlie is saying, ‘No, I’m not guilty of that charge’ and the prosecution don’t agree to change the charge in a way that Charlie would accept, then the parties can ask the magistrate to adjourn the case to what’s called a ‘committal hearing’. And that’s the main event, where a witness would come to court, possibly, and give evidence before a trial.
Nick Gadd: So, before the Committal hearing, the court has to decide which witnesses will be called to give evidence. How does the court decide who gives evidence?
Briana Proud: In Charlie’s case, there might be ten witnesses who saw what happened. There might be two different medical experts and there might be seven different police officers who were all involved in some aspect of the investigation and arrest. Not all of those people are going to be relevant to what ultimately happens in the case. And also, they might not be able to give evidence about the critical issues that the defence and the prosecution lawyers are disagreeing about.
So, at a committal mention hearing, in order to have a witness show up to a committal hearing to give evidence, a Magistrate must first grant what’s called a ‘leave to cross-examine’ that witness. And the defence lawyer must argue to the magistrate about why they want to cross-examine that witness. And there is a set of rules around and parameters around whether a magistrate will grant that leave and also, if the leave is granted, about what that witness can be questioned at the committal hearing. So once those things are determined, then the case is adjourned to a committal hearing, and that, again, might be another few months in the future.
Gemma Walsh: So, what happens to Charlie while all this is going on? Is he down in some cell somewhere?
Briana Proud: Most people facing indictable charges, because of the seriousness of them are in custody while this is all happening. He wouldn’t just be in a cell beneath the Magistrates’ Court; he’d be in a remand centre somewhere.
Gemma Walsh: Okay, so now we get to the committal hearing. How long does that take?
Briana Proud: Often they are set down for one day or maybe two days, depending on how many witnesses the Magistrate has said the defence can cross examine. And all those witnesses then come to court and the defence can ask them particular questions that the magistrate at the committal mention has said that they are allowed to ask. Once the evidence has been called – if there is evidence being called – the magistrate, as Nick spoke about earlier, will make a decision whether to commit this case to a higher court for trial – or for sentence, if Charlie decides to plead guilty after hearing this evidence against him.
Nick Gadd: And how long does this whole process take from when Charlie’s arrested up until – if we go through all those steps, Bree, that you have just outlined – how long will it have taken until you get the final decision and the magistrate says, Yeah, this guy is going to trial?
Briana Proud: We don’t specifically know. What we have been given by the court is a median number of days. And for cases that have been committed after a committal hearing, which is where evidence is given, it is 223 days between filing of charges and when the case is being committed to a higher court.
Nick Gadd: So about seven or eight months?
Briana Proud: Correct, but that’s the median number. Once the case is moved from the lower court to the higher court that it will ultimately be determined in, there is again another set of procedures which must be followed before the case goes to trial.
Gemma Walsh: It sounds like delays are a critical challenge to the court’s processes.
Michael McKiterick: One of the things to think about with court process is the notion of delay, and there is ‘good delay’ and ‘bad delay’. ‘Good delay’ is the time it takes to do things: so the time it takes for a brief of evidence to be prepared; the time it takes for a lawyer to be able to have a look at the brief and the evidence against the client and properly advise the client; and then the time it takes for the lawyer and the prosecution to have meaningful discussion about the matter.
The delay that we are interested in this reference is what we call the ‘bad delay’, which is where you have to wait for things to happen. So, where you have to wait to get your hearing date in the Magistrates’ Court. And then you might have to adjourn the matter, so you have to adjourn it off for another hearing date. There’s also delay in getting things like forensic reports – so medical reports or DNA reports. And we know there is a fairly significant delay with that. And that might cause the matter to be delayed for a further three months. Once the matter is committed for trial and you go into the higher court, there is more delay there, because your trial has to be listed and it joins the queue of trials which are waiting to get on before a judge. If you are in the country, for example, we know that that delay is exacerbated up there because the Supreme and County Courts don’t sit up there all the time. The court facilities are limited, so therefore it will take a while for your matter to get up in the country.
Gemma Walsh: What specific factors cause delay?
Michael McKiterick: The main thing for delay that we ‘ve heard, apart from – well, there’s two things: there’s getting forensic reports done. All the people we’ve spoken to say that causes significant delay. But the other thing is – and I’ll say it again – there’s structural delay, because the court system doesn’t have the capacity to deal with all the matters in an efficient way.
Briana Proud: And unfortunately, you can’t just press pause on crime being committed.
Nick Gadd: So do we need more courts? Is that what you’re saying? We need more courts and we need more magistrates and we need more judges.
Gemma Walsh: Or we need to look at ways to stop people reoffending, perhaps.
Michael McKiterick: Well there is that, but one of our terms of references is to make recommendations about resourcing. So, we’re asking our stakeholders, like the courts, like Victorian Legal Aid, to tell us what they think, and that will inform the recommendations we make to the Attorney-General.
Gemma Walsh: So how can we make that process more efficient?
Michael McKiterick: Well, there’s a number of things that we’re looking at. So, one of the things we are looking at is whether we should keep the test for committal itself, the fact that a magistrate has to commit the charges for trial and whether that test is still relevant, whether that test still has some utility. What we are learning so far is that the process of committals has lots of utility, because, as we mentioned, it brings parties together; it makes them think about the issues and talk about the issues; it makes an accused person think about whether they should enter a plea of guilty or not. So, they’re the good parts of the current committal system. What we want to do is to retain those good parts, but also make sure those things are operating in the best way they can be and in an efficient way. So, that might be getting the higher courts involved at an earlier stage, so that that court, the County Court, is actively case-managing the matter, and asking, more or less, what is happening? Making directions as to evidence and the like. Or it could be that senior prosecution lawyers are involved at an earlier stage to make sure that the right charges are filed, for example. And what that means is that, if an accused person has a very clear expectation of what the charges are that he or she are facing, then they might enter a plea at an early stage. And that means that the prosecution, the accused and the system doesn’t have to go to an expensive and lengthy trial.
Nick Gadd: How do they do committals in other states and other countries? What has changed and is the VLRC looking at similar options here?
Michael McKiterick: To start with the last part of that question: we are looking at all options, Nick. We are looking at the system from the filing of charges through to it going to trial. From the point of view of looking at other jurisdictions: yes, we are looking at other jurisdictions. So, we’re looking at: New South Wales have gone through a very significant reform of its pretrial process, in the respect that New South Wales got rid of its committal decision last year and have moved to what’s called the Early Appropriate Guilty Plea Scheme. We are going to be talking to South Australia, because it changed its pre-trial proceeding in indictable matters and is now reviewing that process, because it has experienced significant delay and backlogs. Also, in England, for example: England got rid of committal hearings probably four or five years ago now. What they have done is brought in the involvement of very senior prosecutors very early in the matter, which means that better charges are laid at the outset – which means that what they’re finding is that guilty pleas are being made at an earlier stage, which means the court system is operating in a more efficient manner.
Nick Gadd: So, what’s to stop Victoria from, say, taking those reforms that have been made in New South Wales and other states and applying them here.
Michael McKiterick: What works in New South Wales, Tasmania and England won’t necessarily work well in Victoria. We’ve got really different criminal law cultures and practices. In New South Wales it’s a much larger state – you’ve got many more regional courts, for example. You’ve got a different way the bar operates; a different way the prosecutions operate; and a different way all the courts operate. And Victorian courts do not operate in the same way. So, what works up there, might look good on paper, but if we try to put that into our system down here, it might not work.
Nick Gadd: New South Wales and England have got these more streamlined systems, but, I suppose, a lot of people might say, What about a fair trial? How do we guarantee that the accused person is still going to get a fair trial? Aren’t you taking away some of the protections of the accused? Bree?
Briana Proud: So, the first thing is to separate out a magistrate’s decision to commit a case to trial with a witness being able to be cross-examined prior to a trial. And those two things are quite separate, especially when you think about how other jurisdictions have handled similar reforms to what we’re asked to look at. And while some states have removed a magistrate’s decision to commit a case, that hasn’t translated into witnesses no longer being cross-examined prior to trial. So, that still exists in states where there is no decision by magistrates to commit.
Nick Gadd: So, you can still test the evidence.
Briana Proud: Yes, you can still test the evidence, and there are other processes and procedures implemented in those jurisdictions which almost mirror the old committal-type procedures.
Michael McKiterick: So, from our point of view, when we are looking at this reference. We are trying to balance those two things. We are trying to balance the best way to support victims and witnesses, so they’re not traumatised any further than they have to be by the process. Because one thing we’ve also been told is the mere fact of going to court, the mere fact of giving evidence, is a traumatic process in itself. You might have to relive something that was very traumatic for you, particularly if you are a victim survivor.
On the other side, you have to balance the interests of the accused person and their right to have a fair trial and their right to ensure that what is happening during the court process is not biased, to make sure that the evidence was obtained properly, and to make sure that that person’s interests are looked after by the court process.
Nick Gadd: So, when are you reporting?
Michael McKiterick: So, our report is due to the Attorney-General on the 31 March next year, 2020.
Nick Gadd: If you want to know more about the VLRC Inquiry into Committals, please go to the Victorian Law Reform Commission website and check out the issues paper. Join us next time for more Old Law, New Law.
Old Law, New Law is a podcast by the Victorian Law Reform Commission. This discussion on the committals process was recorded in August 2019.
Parts of this transcript have been edited for clarity.