Committals: Issues Paper (html)

2. Committal proceedings

What are committal proceedings?

2.1 A committal proceeding is the process by which indictable criminal charges are transferred from a lower court, where the charges are first filed, to the jurisdiction of a higher court. In Victoria, they require an assessment by a magistrate of the evidence to determine if it is of sufficient weight for the charges to proceed to trial.

2.2 The proceedings commonly involve several steps or court events, such as filing and mention hearings, and cross-examination of witnesses.

2.3 While all jurisdictions in Australia and comparable common law jurisdictions overseas have some form of committal proceeding, the specific elements vary, and some jurisdictions have dispensed with procedures that historically formed part of the process.

The history and administrative nature of committal proceedings

2.4 The original purpose of committal proceedings was to act as a filter, ensuring that unfounded criminal charges were not pursued to trial. The rationale was that an accused person should not have to go through the expense and stress of a criminal trial in relation to charges that were ‘wanton and misconceived’.^[1]

2.5 Committal proceedings have a long common law history, pre-dating the creation of organised police forces and independent prosecution services.^[2] They date from a time when criminal complaints were brought by private citizens. Before putting an accused person on trial, the complaint was considered by a ‘grand jury’ of citizens whose role was to prevent frivolous or malicious prosecutions. The grand jury decided if the alleged conduct constituted a criminal offence, and if there was enough evidence to justify requiring the accused to stand trial for that offence.^[3]

2.6 Ultimately, the role of the grand jury was taken on by magistrates who now have the responsibility of assessing the evidence to determine if it is of sufficient weight to require the accused to stand trial for an indictable offence.

2.7 Despite the involvement of magistrates, committal proceedings are characterised as administrative rather than judicial.^[4] Committal to stand trial is not a factor that is considered when assessing the guilt or innocence of an accused person at trial.

2.8 In addition to their primary purpose of ensuring unfounded cases do not proceed to trial, committal proceedings came to be viewed as serving additional important purposes, including to inform an accused person of the nature of the case alleged against him or her, and to allow ‘the accused an opportunity to test the evidence of the prosecution witnesses.’^[5] Many of these purposes are now enshrined in the Criminal Procedure Act 2009 (Vic) (CPA), the primary legislation governing committals in Victoria. These purposes are set out in Chapter 3 of this issues paper.

Criticisms of, and calls to reform, committal proceedings

2.9 The role, benefits and costs of committal proceedings have been debated within Australia and overseas for decades.^[6] It has been suggested that the call to reform committal proceedings arises ‘almost as a tradition’ every few years.^[7]

2.10 While historically courts and commentators emphasised the importance of committal proceedings for protecting the right of an accused person to a fair trial,^[8] the Victorian Court of Appeal found recently that ‘a trial without an antecedent committal will not necessarily be unfair.’^[9]

2.11 Committal proceedings have been criticised for being used by the defence as a ‘fishing exercise’ and a means of gaining a tactical advantage.^[10] There is also concern that committal proceedings unduly inflate the costs of criminal justice and contribute to delays in finalising prosecutions.^[11] Another concern is that they are stressful or traumatic for victims and witnesses.^[12]

2.12 On the other hand, some commentators and criminal justice practitioners continue to defend the importance of committal proceedings for ensuring a fair trial.^[13] They point to other benefits, including assisting with the early resolution of matters.^[14]

2.13 These issues are discussed further in Chapter 5.

1. John Coldrey QC, ‘Committal Proceedings: the Victorian Perspective’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1-2 May 1990) 2, citing Lord Devlin, 1960.

   ↑

2. Grassby v The Queen (1989) 168 CLR 1, 11–12.

   ↑

3. See Nicolee Dixon, ‘Committal Proceedings Reforms: The Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 (Qld)’ (Research Brief 2010/14, Queensland Parliamentary Library, May 2010) 183; Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Report, 2008) 163-164; New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014).

   ↑

4. Grassby v The Queen (1989) 168 CLR 1, 11.

   ↑

5. Kerry Stephens, ‘Committals in Victoria—a Police Perspective’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1–2 May 1990) 158, citing Victorian Parliamentary Debates 1986.

   ↑

6. See, eg, New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014); Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Report, 2008); Standing Committee of Attorneys-General, Report of the Deliberative Forum on Criminal Trial Reform (June 2000).

   ↑

7. Criminal Law Committee of the Magistrates’ Court of Victoria, Magistrates’ Court Response to the DPP’s Proposed Reforms of the Committal Process (10 April 2019), 1.

   ↑

8. Barton v The Queen (1980) 147 CLR 75, 100.

   ↑

9. Cook v The Queen [2019] VSCA 87, [23].

   ↑

10. Kerry Stephens, ‘Committals in Victoria—a Police Perspective’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1–2 May 1990) 158.

    ↑

11. Department of Justice and Attorney-General, Queensland Government, Reform of the Committal Proceedings Process (Discussion Paper, 2008) 6 [5].

    ↑

12. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August, 2016), 207.

    ↑

13. See ‘The right to a fair trial’ in Chapter 5.

    ↑

14. Criminal Law Committee of the Magistrates’ Court of Victoria, Magistrates’ Court Response to the DPP’s Proposed Reforms of the Committal Process (10 April 2019) 1–2.

    ↑