Friday, 27 July 2012

Committals — raising the bar

So Victorian Attorney-General Robert Clark is considering abolishing committal hearings. At the very least, significant legislative reform is likely to avert what he calls the “unnecessary examination of cases” at committal.

What might those reforms look like? Victoria's chief magistrate Ian Gray has some interesting suggestions, which he outlined in my recent interview with him for The Sunday Age.

“There is a clear need for reform and change to the committal process” to improve efficiency, he told me. But he would prefer to fix the system rather than scrap it outright.

With this in mind, the Magistrates' Court has recently asked the Attorney-General for two significant legislative amendments to the Criminal Procedure Act 2009 – both aimed at cutting the time and cost of committals:

1. Cutting back on cross examinations

Mr Gray said there was a need to cut back on unnecessary, time-wasting cross examinations in contested committals. He argued that section 124 of the Act raises a presumption that leave to cross examine will be granted if the informant consents and should therefore be repealed. Instead, he said, leave to cross examine should be at the court's discretion for "special reasons" only.

This would reduce the instances when cross examination is granted, reduce the number of witnesses called and (most importantly) the length of contested committals, he argued. Such a reform would also reduce the burden on witnesses, he added.

Anecdotally, he said, the adoption of a "special reasons" test in South Australia — narrowly interpreted by the Supreme Court — had seen the length and number of contest committal hearings reduce dramatically.

The problem with committals in Victoria, as he saw it, was the emergence of a "very relaxed culture" in such proceedings. "There has been a tendency for the parties effectively to agree that cross examination should not be opposed in relation to witnesses where there is not necessarily a real dispute as to their evidence," he said.

"You can radically reduce the time taken in committals by tightening and controlling the issue of who is cross examined and on what issues and for what length of time…Far too much time is taken for witnesses being cross-examined through what is already in their statement. That is a complete waste of time."

"Special reasons" is a curious phrase. As examples, Mr Gray said leave to cross examine might be granted when there were identification issues or genuine forensic issues in dispute.

As a further reform in this area, he floated the idea of imposing time limits on the cross examination of witnesses. "I am looking at articulating time limits in cases where it is simply necessary to keep proper control and limit the scope of time," he said.

Of course, the notion of setting an egg timer on learned counsel may not go down well with some.

2. Toughening the test to commit

Mr Gray said the test to commit an accused to trial under section 141 of the Act should be toughened so the court has wider discretion to discharge a case when there is little prospect of a conviction.

Here’s the broad test he proposed:

"If the Magistrate is of the opinion that there is a reasonable prospect that a properly instructed jury would convict the accused person of an indictable offence, the Magistrate must commit the accused person to trial."

The key change here is the introduction of the word “would” — as opposed to "could convict". Mr Gray anticipated that toughening the test would increase the number of cases discharged at committal — in fact, that’s the whole idea.

Importantly, the prosecution's right to file an indictment in such cases under section 156 would be retained. It's likely the proposed change would see more cases would go to trial in this way - presently the section is rarely used (County Court statistics show that less than 8 per cent of matters discharged in the Magistrates' Court were then indicted in the County Court in the past two financial years).

Mr Gray said his proposed change to the test "would lead to a larger number of cases being efficiently discharged and thrown out at the committal stage, that's an efficiency in itself".

"It will winnow out a number of cases at the committal stage...that probably shouldn't go on to the County Court. There are definitely some cases where there is enough or just enough to commit but it is unlikely on any reasonable assessment that a jury is in fact going to convict or not a reasonable prospect they will," he said.

"It means we are not sending cases which are then going to occupy time, resources and cost on the County Court when they are in the end unlikely to be successful prosecutions."

Separately, the Magistrates' Court flagged a tougher approach to committals to help streamline such proceedings, including a more "concerted effort" to enforce the seven-day timeframe for filing the case direction notice. Last month, the court doubled the number of one-day committals listed for hearing (effectively overlisting certain matters) to reduce delays and time wasting caused by cases that are not ready for hearing or which have been effectively overbooked.

All up, it means that even if committals remain in Victoria they are likely to be leaner and tougher beasts than they are today.


Anonymous said...

The suggestion by the Chief Magistrate to impose "time limits" on cross-examination reveal ultimately the real issue behind the proposed changes to Committals - the aim to reduce the length of cases before the Court at any cost, including a cost to the interests of an accused.

Perhaps the Chief Magistrate might want to look at his own Magistracy as well. How many of us regularly experience Magistrates' strolling on to the bench at sometime between 10-15am (or later) when a case is listed to start at 9.30am. Or adjourn early at 3-3.30pm because they have other "commitments". The now continual blame on legal practitioners by the Court for undue delay in the system has become offensive and is always without foundation and not supported by evidence.

The cross-examination of a witness takes as long as it takes. Every single case is different. Every single witness is different. There is nothing generic in our criminal justice system.

Furthermore, the proposition that "Far too much time is taken for witnesses being cross-examined through what is already in their statement. That is a complete waste of time." lacks, with respect to the Chief, a fundamental understanding of conduct of a committal proceeding and the preparation of an Accused's defence at Trial. The fact that simple facts are alleged in a witness statement does not mean that the evidence should not be tested and scrutinised. People lie. Police influence the content of statements. How often have we experienced witnesses admitting to lying? How often has a witness said that the wording of a statement was not their own but that of the police officer who took the statement? There are many motives in operation that are often inconsistent with the truth. These motives cannot be revealed without an opportunity to scrutinise the evidence of a witness at a committal.

The Magistrates' Court wants on one hand the opportunity to "raise the bar" on the Committal Test for the prosecution, yet on the other hand prevent an Accused from being able to test the prosecution case for that very purpose.

The issue of delay in the system is currently far, far more problematic for the County Court than the Magistrates Court. The limiting of Committals will only increase tenfold the number of pre-trial issued ventilated in the County Court, and increase significantly the length of trial listings. An accused who is prevented from exploring relevant evidentiary issues at Committal will nonetheless pursue them at trial. If they had been explored at Committal then they may well not need to be argued at Trial. One would hope the Chief Judge of the County Court has realised the potential impact of the proposed changes to the Committal process to the length of trials and will have some input in the current proposals.

RM said...

I agree. Perhaps the CM should review the CJs comments (that he said at the time he agreed with) about justice not being about the manufacture of widgets. The concept that the "average" committal takes x amount of time, and a shorter one is a better one and a longer one is a failure, only has to be said aloud to be dismissed for the managerial nonsense that it is.