Monday, 23 July 2012

Committals to go?

The issue of abolishing committals is back in the spotlight again. The proposal seems to have come around every few years for the past two decades, like Batman films.

The Australian Institute of Criminology ran a conference on committals back in 1990. It's interesting to read the papers, because the arguments for and against appear similar to those raised now.

Back in 2005 support for bypassing the Magistrates' Court came from an unexpected source. Government Ombudsman (and head of the OPI) George Brower stated publicly that the existence of direct presentment placed the necessity of the committal process in question. Direct presentment allows the Director of Public Prosecutions to present an accused directly for trial, and has been legislated since 1991. I haven't found the figures on how often that power gets exercised; if anyone knows, please post a comment.

Before that innovation, then-DPP John Coldrey QC produced a thoughtful review of committals that concluded that the case for change had not been made. Problems with committals resulted from their improper use, he said, not some inherent problem with their existence:

Those who seek to abolish or curtail the process which has formed an integral part of the criminal justice system for many years bear the onus not only of justifying the necessity for change but demonstrating that the new mechanisms which they advocate do not increase the possibilities of injustice. My present view is that they have failed to discharge that onus.

In conclusion, the current Victorian policies and legislation recognise the potential of the committal hearing to play a significant role in the operation of the criminal justice system. That potential will only be achieved, however, if all the participants in the system responsibly utilise this legal process for the purposes for which it was designed. Inadequate disclosure of the Crown case, shoddy or inept cross-examination and the inappropriate application of
the standard of proof are all practices with a capacity to erode the effectiveness of the committal and hence fuel arguments for its replacement by administrative techniques.

Coldrey quoted Barton v R (1980) 147 CLR 77, where the High Court had said,

It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair . . . To deny an accused the benefit of committal proceedings is to deprive him of a valuable protection uniformly available to other accused persons which is of great advantage to him, whether in terminating the proceedings before trial or at the trial.

But reliance on Britain's system of trial procedure is misplaced, even if it was the origin of much our own. My understanding is that the UK got rid of committals for indictable matters a decade ago, and committals for the equivalent of our IOTS matters ('either way' cases) earlier this year.

Today's local arguments seem to focus more on concern about efficiency rather than quality.

Former County Court judge (now acting chairman of the Victorian Law Reform Commission) David Jones is quoted as saying,

If there is a need to examine a witness as to any aspect of fairness, it could be done at that level. I would have some doubt about the value of committals now, bearing in mind pressures on the criminal justice system, and it seems to me appropriate to be looking at some change if not complete abolition.

The Age's opinion piece implies Chief Magistrate Ian Gray has said the test for a committal should be altered from whether a jury could convict, to whether they likely would convict. I don't see a direct quote to that effect amongst the Age's articles, and I haven't seen that reproduced elsewhere. If such a change was made that would surely result in more direct presentments - but whether that's a good thing or not is a separate question.

Another proposal, that the standard of satisfaction be raised but the calling of oral evidence be limited, is not dissimilar to a proposal made by Deputy Chief Magistrate Brian Clothier twenty years ago. He favoured streamlining the committal process into a presumption of a 'hand-up brief only' procedure, with witnesses to be called only in rare cases when leave has been sought and granted.

His extra-judicial argument was blunt and sincere:

All of this leads me to the view that there should be no right to a committal for trial hearing. I would advocate the serving of a 'hand-up brief' with no right to call witnesses except on application to a magistrate. A magistrate, on perusing the 'hand-up brief' would refer the matter to the Director of Public Prosecutions with a recommendation for a trial or order that the defendant be discharged.

I do not espouse any particular grounds for granting an application for witnesses. Contested admissions, contested identification evidence, assault in company type offences, and drunken brawls could be the type of cases when applications would be appropriate.

The time honoured justifications for retention of the committal proceedings are one thing, but the delay in bringing a person to trial is another. The time limits between committal and filing the presentment and the filing of presentment and trial can be 18 months (or more by leave) and, quite obviously, less. But where there are rules as to the time permitted for
taking a step in the prosecution process the tendency is for action to take place at that time.

What I espouse will do little to enable the Director of Public Prosecutions (DPP) to present for trial in a lesser time than he is able at the present time. What it will do is reduce the time between charge and commencement or preparation in the DPP's Office. Thus it will reduce the time between charge and trial.

It's difficult to assess the impact that removal of oral evidence in committal hearings could have, particularly given there already is a requirement to justify calling a witness for cross-examination. (Additionally, it doesn't seem terribly efficient to reduce the workload of the summary jurisdiction by increasing the number of preliminary Basha-style examinations going on in trials — especially since over 10% of matters are discharged at committal, and so would never have made it to trial if a committal had been held.)

I wonder if some of the commentators who believe that committals are 'doubling up' with trials truly appreciate what committals can achieve. Testing the Crown case and understanding how the case is put against the accused is fundamental for someone looking to defend serious charges against them. Sometimes, the result is to convince an accused they should plead guilty to some or all charges, or to convince the prosecution it can't make out some aspects of its case but should accept a plea to lesser charges. And every so often, it turns out that an accused person is shown to be not guilty, long before they get to trial.

Of all the 'efficiencies' that might be looked into, this area isn't the most promising. Ideally, to work well, it would require assigning the trial prosecutor right at the start, prior to disclosure to the accused, so that the way the case is put together and disclosed matches what is planned to happen at trial.


Anonymous said...

The proposal to increase the threshold test of committals from whether a properly instructed jury "could" convict, to "would be likely to" is, I understand, being advanced by the Magistracy. What I cannot understand however, is how that fits with reducing the availability to test the prosecution case by either limiting or removing cross-examination of witnesses at committal. If anything, the ability to "test" the case in light of a higher threshold test should be increased.
Also, the Chief Crown Prosecutor is quoted in the Sunday Age article as suggesting that Committals have "long been abused by solicitors wanting to delay court proceedings unnecessarily". Such accusation is not only totally unfounded, but non-sensical. There is in fact no benefit to a solicitor in delaying court proceedings. The accusation (which is trotted out each time the issue of abolishing committals is) is never supported by evidence or by examples of the "abuse". If such a practice is being utilised by solicitors, then name and shame Mr Chief Crown Prosecutor.
The reality is, as the DPP and Chief Crown prosecutor well know, many, many committals reveal fundamental defects in an investigation by the police or the reliability of prosecution witnesses. It even often reveals that people lie.
It is all very well for the government to introduce a "tough on crime agenda", but it must then ensure the justice system is as fair as it can be. The current proposal to abolish committals (be it true), in combination with the other legislative reform of this government truly does spell disaster, and innocent people will go to jail.

Anonymous said...

The United Kingdom is leading the way on this:-

Teddy said...

The chief magistrate went and the committals are still here.

Hmm ...