Committals: Issues Paper (html)

4. Committal and pre-trial proceedings in other jurisdictions

Introduction

4.1 All Australian states and territories and comparable common law jurisdictions overseas have reformed committal and other pre-trial proceedings.^[1] This chapter describes a selection of these reforms and how they aimed to improve the efficiency of pre-trial procedure, advance fair trial rights or reduce trauma experienced by victims and witnesses.

4.2 The reforms considered here illustrate that while some jurisdictions have abolished the requirement that a magistrate assess the evidence in a case before deciding if it should be committed to a higher court, most have retained aspects of committal proceedings or have adopted other pre-trial procedures replicating procedures that were formerly part of a committals process.

Charging practices and the decision to prosecute

4.3 In all Australian jurisdictions, there tends to be some disparity between the criminal charges filed by police or other investigating agencies and those ultimately prosecuted on indictment. Reforms have been introduced to ensure better consistency between the charges originally filed and those that are prosecuted indictably, and also to encourage the settling at an early stage of those charges that will be prosecuted. The latter reforms are designed to facilitate early resolution discussions between the parties.

4.4 In 2018, wide-ranging changes were made to the pre-trial criminal system in New South Wales.^[2] One feature of the new pre-trial system is the requirement that senior police officers and prosecutors review, at an early stage, the evidence relating to indictable offences. The Director of Public Prosecutions (DPP) must then file a ‘charge certificate’ confirming the charges that will proceed to trial.^[3] The charge certificate must confirm that the evidence available to the prosecutor is capable of establishing each element of the offences that are charged.^[4]

4.5 The charge certificate process was introduced to address the issue of police ‘over-charging’ or filing many more charges than were ultimately prosecuted. This practice meant many accused did not offer early guilty pleas in the expectation that charges would be reduced as proceedings advanced.^[5]

4.6 Requiring the DPP to file a charge certificate aims to ensure the ‘prosecutor will perform a gatekeeping role earlier in the process by certifying which charges will proceed’.^[6]

4.7 Like New South Wales, in South Australia the DPP plays a central role in determining which charges are prosecuted. Committal proceedings may be commenced only once the DPP has reviewed the material in a preliminary brief and made a ‘charge determination’ as to the appropriate charge or charges to be prosecuted.^[7] Until a charge determination has been made, South Australian police appear in the Magistrates’ Court on behalf of the prosecution.^[8]

4.8 DPP policies have been adopted in most jurisdictions to ensure accurate and evidence-based indictments. The prosecution Guidelines adopted by Queensland’s DPP require early communication between police and prosecutors, including consultation with the arresting officer regarding such things as perceived deficiencies in the evidence or matters that have been raised by the defence.^[9]

4.9 The Australian Capital Territory’s DPP has adopted a policy of preparing a ‘case statement’ which is described by the DPP as:

…innovative and comprehensive, incorporating a reference to the elements of each offence on the indictment, and how those elements will be proved. This means that when an indictment has been signed, which is immediately after committal for trial, the Crown has considered whether there is sufficient evidence to justify the indictment, and how the case will be proved. That material is also available to the defence.^[10]

4.10 In England and Wales, Crown prosecutors, rather than the police, are responsible for deciding whether a person should be charged with a serious criminal offence, and which charges should be laid. Although they cannot direct the police or other investigators in their conduct of investigations, and are themselves independent of the police,^[11] prosecutors provide advice to police at an early stage in the investigation process. This advice may canvass issues such as ‘possible reasonable lines of inquiry, evidential requirements, pre-charge procedures, disclosure management and the overall investigation strategy’.^[12] A key responsibility of the prosecution is to ensure ‘accurate charging decisions’.^[13]

Disclosure obligations

4.11 Efforts to improve disclosure and ensure that it happens at an early stage in proceedings have been made in all jurisdictions. Obligations apply between the prosecution and the defence and also between the various prosecuting agencies.

Disclosure between investigating agencies and the DPP

4.12 It is the role of investigating agencies (often the police) in each jurisdiction to commence proceedings, prepare an initial brief of evidence and serve this on the accused. All jurisdictions have legislated requirements concerning the contents of the brief of evidence.

4.13 At the same time as the brief is served on the accused, it must be served on the DPP.

4.14 In New South Wales, police must include a ‘disclosure certificate’^[14] when providing the brief of evidence to the DPP. The disclosure certificate must confirm that all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person have been provided.^[15] According to a formal agreement between NSW Police and the NSW Office of the DPP, the brief of evidence must not be served on the ODPP until a senior police officer has certified that the investigation, brief of evidence and disclosure certificate are complete.^[16]

4.15 In South Australia, the Court of Criminal Appeal has emphasised that the decision about what material should be disclosed to the defence is to be made by the DPP rather than the investigating agency, which is obliged to disclose all potentially relevant material to the DPP:

It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director.^[17]

The DPP’s disclosure obligations

4.16 Like Victoria, other jurisdictions impose ongoing statutory disclosure obligations on the DPP. In Queensland the prosecution has an ongoing obligation to provide ‘full and early disclosure’ of evidence on which it intends to rely, as well as things in its possession that could help the case for the accused.^[18] In Western Australia the prosecution’s disclosure obligations commence as soon as an accused has had an opportunity to plead to an indictable charge and they are ongoing until the charge is finally dealt with.^[19]

4.17 All state and territory DPPs have adopted guidelines on disclosure. These are generally consistent with the Commonwealth DPP’s ‘Statement on Disclosure,’ which says that:

• The need to ensure that the accused receives a fair trial is the ultimate criterion for determining what material should be disclosed by the prosecution.

• In order to ensure that the accused receives a fair trial, he or she must have adequate notice of the evidence to be adduced as part of the prosecution case.

• In addition to fulfilling any local statutory obligations relating to disclosure, the prosecution must disclose to the accused any material which:

– can be seen on a sensible appraisal by the prosecution to run counter to the prosecution case (i.e. points away from the accused having committed the offence); or

– might reasonably be expected to assist the accused in advancing a defence; or

– might reasonably be expected to undermine the credibility or reliability of a material prosecution witness.^[20]

Consequences of non-disclosure

4.18 In most jurisdictions, a trial court may refuse to admit evidence in proceedings relating to an indictable offence if the party seeking to rely on the evidence has not complied with its pre-trial disclosure obligations.^[21]

4.19 In some jurisdictions, such as Queensland, the court has the power to make costs orders in favour of an accused person if certain disclosure obligations have not been complied with and the non-compliance was unjustified, unreasonable or deliberate.^[22]

4.20 Courts may also have the power to dismiss a charge for want of prosecution if there has been a failure to comply with a court order for disclosure in a timely manner, as is the case in Western Australia.^[23]

The case management function of courts

4.21 Courts at all levels and in all jurisdictions proactively manage cases to ensure they are dealt with expeditiously. This includes:

• setting timelines within which parties’ procedural obligations must be met

• monitoring compliance with disclosure and case conferencing obligations

• requiring the parties to narrow the issues in dispute.

4.22 In New Zealand, judges in the lowest-level District Court conduct ‘case review hearings’ in those cases deemed to require judicial input prior to trial. They may assess the strengths and weaknesses of the case and give a range of directions for case management, including encouraging negotiation between the parties or amending the summary of facts.^[24]

4.23 In England and Wales, the Magistrates’ Court ‘sends’ indictable cases to the Crown Court for a ‘Plea and Trial Preparation Hearing’ (PTPH).^[25] During a ‘sending hearing’, the Magistrates’ Court explores what issues are agreed or disputed between the parties and what information is required to facilitate an effective PTPH. During a PTPH, the Crown Court will ‘actively and robustly manage’ the case, including by attempting to determine the issues for trial and by giving necessary directions to ensure an effective trial.^[26]

4.24 In Canada, a ‘focus hearing’ may be ordered by the court in matters where a preliminary inquiry has been requested by one of the parties.^[27] At the focus hearing, the parties must identify the witnesses to be heard at the preliminary inquiry and the issues on which evidence will be given and consider ‘any other matters that would promote a fair and expeditious inquiry’.^[28]

Failure to comply with case management directions

4.25 Failure to comply with case management directions can result in sanctions such as the dismissal of matters or the ordering of costs. In the Australian Capital Territory, for example, a Magistrates’ Court Practice Direction warns: ‘[p]arties should be aware that the Court will exercise its power of dismissal and to award costs’ for failure to facilitate the efficient finalisation of criminal matters.^[29]

Case conferencing

4.26 Most jurisdictions now either require or encourage the parties to engage in a case conference at an early stage in proceedings.

4.27 In Tasmania committal to the Supreme Court occurs at the accused’s first or second appearance in the Magistrates’ Court. After committal, however, if either party seeks an order for witness examination at a pre-trial preliminary proceeding, the parties must first confer and identify:

• areas of agreement or disagreement with respect to the request

• an estimated hearing time for the preliminary proceedings

• a tentative date upon which, and place at which, the preliminary proceeding can be heard.^[30]

4.28 In New South Wales, the 2018 reform package included additional funding to ensure the involvement of senior lawyers in case conferences prior to committal hearings.^[31] The lawyers must have the authority to negotiate and finalise matters.^[32]

4.29 In New Zealand, the prosecution and a legally represented defendant must hold case management discussions if the defendant has pleaded not guilty to an offence punishable by a term of imprisonment.^[33] The purpose of case management discussions is ‘to ascertain whether the proceeding will proceed to trial and, if so, make any arrangements necessary for its fair and expeditious resolution.^[34]

4.30 Although there is no requirement for a ‘case conference’ as such, in England and Wales the parties have a duty to engage with each other about the issues in the case from the earliest opportunity and throughout the proceedings. The aim of this discussion is to determine issues such as:

• how the defendant is likely to plead

• those matters that are agreed upon and those that are contested

• what information needs to be disclosed.^[35]

4.31 The parties must report to the court on their communications at the first hearing and thereafter.^[36]

Pre-trial witness examination

Evidence-in-chief

4.32 All Australian and comparable international jurisdictions allow a witness statement to be relied on during committal proceedings as evidence-in-chief.^[37] This is designed to reduce the need for witnesses to appear and be examined prior to trial.

Cross-examination prior to trial

4.33 Regardless of whether committal proceedings have been retained, all jurisdictions allow some form of pre-trial witness cross-examination. In England and Wales, however, this is limited to situations involving vulnerable witnesses such as children. The pre-trial cross-examination of these witnesses is recorded and they cannot subsequently be called to give evidence or be cross-examined at trial.^[38]

4.34 The Australian jurisdiction with the most restrictions on pre-trial witness examination is Western Australia. In 2002, the ability of the accused person to obtain leave of the court to cross-examine witnesses during a committal hearing was abolished. The prosecution may make an application for the pre-trial examination of a witness who has refused to provide a witness statement, and whose evidence may be relevant to the charge.^[39]

4.35 Where such an order is made, the witness may be examined and re-examined by the prosecutor and cross-examined by the defence.^[40] The court cannot allow cross-examination on matters relating solely to the credibility of the witness, or about matters that do not relate directly to the evidence given during examination by the prosecutor.^[41] There are no other pre-trial opportunities for witness examination or cross-examination in Western Australia.

4.36 In all other jurisdictions, the defence may seek leave to cross-examine witnesses prior to trial. In New South Wales and Queensland, leave of the court is not required if the prosecution and the accused agree that a witness may be called to be examined or cross-examined during committal proceedings, although this does not apply to witnesses in respect of whom examination and cross-examination are absolutely prohibited.^[42]

4.37 In the Northern Territory, unless the court is satisfied it would not be in the interests of justice, or the application relates to witnesses in respect of whom cross-examination is absolutely prohibited, the Court must grant the accused leave to cross-examine a witness if the prosecutor consents to leave being granted.^[43]

4.38 When the prosecution opposes cross-examination, the test the court applies to determine whether to permit it varies. Generally, the accused must identify an issue or issues to which the proposed questioning relates, and the court must have regard to the need to ensure that the prosecution’s case is adequately disclosed.

4.39 In addition, most jurisdictions impose an additional requirement that the court is satisfied that:

• examination or cross-examination is necessary ‘in the interests of justice’ (Australian Capital Territory,^[44] Northern Territory,^[45] Tasmania^[46])

• there are ‘substantial reasons’ for examination or cross-examination ‘in the interests of justice’ (New South Wales,^[47] Queensland^[48])

• there are ‘special reasons’ for examination or cross-examination ‘in the interests of justice’ (South Australia^[49]).

4.40 In Canada, the court may compel a witness to attend a preliminary inquiry for examination or cross-examination upon an application by a party to the proceeding and where the court considers it appropriate.^[50] The parties may be required by the court to attend a focus hearing prior to the preliminary inquiry and to consider ‘witnesses’ needs and circumstances’ when identifying witnesses to be heard.^[51]

4.41 In New Zealand, the court may make an order permitting a party to question a witness orally at a pre-trial callover if the court is satisfied that the order is necessary to determine a pre-trial application, or if the witness has been asked to give evidence in the form of a formal statement but has failed or refused to do so, or if it is otherwise in the interests of justice.^[52]

Cross-examination of vulnerable witnesses

4.42 Some jurisdictions impose additional tests that must be met before certain categories of witness may be cross-examined prior to trial:

4.43 In New South Wales, the court must be satisfied there are ‘special reasons’ for cross-examination ‘in the interests of justice’ where:

• the witness is an alleged victim of an offence involving violence

• the witness is a vulnerable person but not the alleged victim in offences involving violence (unless the prosecution consent to the cross-examination)

• the evidence of the witness relates to a prescribed sexual offence but the witness is not the alleged victim.^[53]

4.44 In the Northern Territory, the court must take into consideration ‘any mental, intellectual or physical disability to which [a] witness is or appears to be subject’.^[54] Where the witness is a child, the court must have regard to the need to minimise the trauma that might be experienced by the witness in giving evidence. The court must also consider the relative importance of the evidence to be given by the witness.^[55]

4.45 In Queensland, child witnesses may only be cross-examined if the court is satisfied that it is necessary in the interests of justice, and that a number of other conditions are satisfied.^[56]

4.46 In South Australia, where an application is made to examine or cross-examine the following categories of witness, the court must not grant leave unless it is satisfied that the interests of justice cannot adequately be served except by calling the witness:

• victims of an alleged sexual offence

• people with cognitive impairments that adversely affect their capacity to give a coherent account of their experiences or to respond rationally to questions

• children who are 14 years or younger.^[57]

4.47 In Tasmania, where an application is made to examine or cross-examine an ‘affected person’,^[58] the court may only grant leave to do so if satisfied that exceptional circumstances require the witness to give evidence and it is necessary in the interests of justice.^[59]

4.48 In New Zealand, a court considering an application for a pre-trial oral evidence order that relates to a complainant in a case of a sexual nature must take into account (in addition to the other matters it would ordinarily consider):

• the particular vulnerability of the complainant

• the impact on the complainant of giving oral evidence.^[60]

Prohibition on cross-examination of certain witnesses

4.49 As well as these limits, most jurisdictions do not, in any circumstances, permit cross-examination of certain witnesses at committal hearings. This includes prohibition on the cross-examination of:

• complainants in sexual offence matters (Australian Capital Territory,^[61] Northern Territory^[62])

• complainants who have a cognitive impairment where the matter involves a prescribed sexual offence (New South Wales)^[63]

• complainants in relation to child sexual offences who are under 18 years at the time of the committal hearing and who were under 16 years at the time of the alleged offence (New South Wales)^[64]

• children, where the charge relates to a sexual offence (Northern Territory)^[65]

• children, where the charge involves a serious violence offence (Northern Territory).^[66]

4.50 In addition, in Queensland children may not be called to give evidence-in-chief.^[67]

Limits on scope of questioning during witness examination

4.51 In New South Wales and Queensland, the magistrate must prevent questioning that deals with matters that were not the basis of the reasons for which leave to examine or cross-examine was given, unless satisfied there are substantial reasons in the interests of justice for examination on these matters.^[68]

4.52 In New South Wales the court must be satisfied there are special reasons in the interests of justice for examination on these matters if the witness is the alleged victim of an offence involving violence.^[69] In Queensland, the court must not allow cross-examination of a child witness to continue if it is not relevant to the issue in relation to which cross-examination was allowed.^[70]

4.53 In the Northern Territory, the defence is not limited to cross-examining a witness on the issue for which leave to cross-examine was given, but the court may disallow questions not clearly relevant to a matter in issue, or that are not justified having regard to the factors that the court was required to consider when deciding whether or not to grant leave to cross-examine.^[71]

4.54 In Tasmania, an order that a witness give evidence in preliminary proceedings may limit the matters on which the witness may be examined, cross-examined and re-examined, and may impose conditions in relation to such examination, cross-examination and re-examination.^[72] If the witness is an affected person^[73] the order must limit the matters on which the witness may be examined, cross-examined or re-examined, and may impose conditions in relation to such examination, cross-examination and re-examination.^[74]

4.55 In Canada, the court must order ‘the immediate cessation’ of questioning at a preliminary inquiry which is, in the opinion of the justice, ‘abusive, too repetitive or otherwise inappropriate’.^[75]

Other protections for witnesses

4.56 In Queensland, if the court has granted leave to cross-examine a child witness during committal proceedings, arrangements must be made to limit any distress or trauma suffered by the child during cross-examination.^[76]

4.57 In New Zealand, although pre-trial oral evidence may generally be taken before a registrar or magistrate, in cases of a sexual nature where the complainant is giving evidence, the evidence must be taken before a judge and there are limits on who may be present in court during the complainant’s evidence.^[77]

The test for committal

4.58 The requirement that a magistrate commit a case to a higher court based on an assessment of the evidence in that case has been retained in:

• the Australian Capital Territory, although the Magistrates’ Court may commit an accused person for trial without an assessment of the evidence on an application of the accused person and with the prosecutor’s consent^[78]

• the Northern Territory^[79]

• Queensland, although the court may commit an accused person for trial or sentence without applying the test for committal if the parties agree; and a clerk of court may commit an accused person for trial or sentence without applying the test for committal if the parties agree and if certain other prerequisites are met, such as that the accused is not in custody in relation to another matter^[80]

• South Australia, although there is no requirement to conduct committal proceedings or apply the test for committal if the accused either concedes that there is a case to answer or pleads guilty^[81]

• Canada, but only where the accused or the prosecution has requested a preliminary inquiry, which is the Canadian equivalent of a committal procedure.^[82]

4.59 There is no longer a test for committal involving assessment of the evidence in:

• New South Wales (as of April 2018)^[83]

• Tasmania (since 2000)^[84]

• Western Australia (since 2002)^[85]

• England and Wales (since 2001 for indictable only offences, and since 2013 for offences that can be ‘tried either way’^[86]).

Direct indictments

4.60 In all Australian jurisdictions, DPPs have the power to directly indict an accused to stand trial, regardless of whether a committal proceeding was held. A direct indictment can be filed even in instances where a magistrate has found there is insufficient evidence to commit the accused for trial and has discharged the matter.

4.61 In South Australia, the DPP’s Prosecution and Policy Guidelines state that to directly indict (referred to in South Australia and many other jurisdictions as an ‘ex officio indictment’) a person without prior committal proceedings ‘will only be justified if any disadvantage to the accused that may thereby ensue will nevertheless not be such as to deny the accused a fair trial.’^[87]

4.62 These Guidelines also consider the issue of direct indictment following discharge at committal:

The result of committal proceedings has never been regarded as binding on those who have the authority to indict. An error may have resulted in the Magistrate discharging the accused, and in such a case the filing of an ex officio information may be the only feasible way that the error can be corrected. Nevertheless, a decision to indict following a discharge at the committal proceedings should never be taken lightly.^[88]

Guilty pleas

Data on the timing of guilty pleas

4.63 All jurisdictions confront the issue of a significant minority of guilty pleas being entered at a late stage in proceedings—sometimes ‘at the door of the court’, or on the day a matter is listed for trial, and sometimes during the trial itself. It is difficult, however, to compare data relating to guilty pleas as this data is recorded and expressed differently across jurisdictions.

4.64 Some illustrative data shows that:

• in the Australian Capital Territory in 2017–18, around 62 per cent of matters committed for trial in the Supreme Court subsequently resolved with a guilty plea, and of these guilty pleas, 11 per cent were entered on the day of the trial^[89]

• in Queensland in 2017–18, 18 per cent of guilty pleas that were entered after a matter was committed for trial in a higher court were entered on or after the first day of the trial^[90]

• in South Australia, in 2017–18, of those matters that proceeded to trial in a higher court in Adelaide, 16 per cent had guilty pleas entered during the trial.^[91]

Sentencing discounts for early guilty pleas

4.65 A plea of guilty and its timing are among the factors that all courts must consider when sentencing. South Australia and New South Wales have introduced reforms to encourage early guilty pleas by specifying the amount by which a sentence should be reduced depending on the timing of the plea.

4.66 In New South Wales, the following discounts apply to sentences that would have otherwise been imposed:

• 25 per cent discount if the plea was accepted by the Magistrate in committal proceedings

• 10 per cent discount for pleas or notice of plea up to 14 days before the first day of trial

• 5 per cent discount in any other circumstances.^[92]

4.67 Judges do, however, retain a discretion to provide no sentencing discount, or a lesser discount, in cases of extreme culpability.^[93]

4.68 In South Australia, the fixed scale of sentence discounts to be applied depending on the timing of a guilty plea is:

• up to 40 per cent for a guilty plea entered within four weeks of the defendant’s first court appearance

• up to 30 per cent for a guilty plea entered before or on the day of the defendant’s committal appearance

• up to 20 per cent for a guilty plea entered after the defendant’s committal appearance but before the defendant is committed for trial

• up to 15 per cent for a guilty plea entered between the defendant being committed for trial and just after the defendant is arraigned in a superior court

• up to 10 per cent for a guilty plea entered after the defendant is arraigned but before the defendant’s trial commences.^[94]

4.69 In Western Australia, legislative provisions allowing sentence discounts for early guilty pleas were introduced in 2012. The earlier the plea is made, the greater the sentence reduction available.^[95] Where the sentence for the offence is, or includes, a fixed term, the court must not reduce the sentence by more than 25 per cent and may only reduce the sentence by 25 per cent if the accused pleaded guilty ‘at the first reasonable opportunity’.^[96]

4.70 Since June 2017, adult accused in England and Wales who wish to receive the maximum available reduction for an early guilty plea must enter their guilty plea at the first stage of proceedings, normally at the first hearing at which a plea or plea indication is sought and recorded by the court.^[97] This generally occurs during the accused’s second court appearance. If a guilty plea is entered at this appearance, the accused is entitled to a sentence discount of one-third.^[98]

4.71 After the first stage of proceedings, the discount for an early guilty plea falls to one quarter of the sentence that would otherwise be imposed, with a sliding scale of reduction applied after this.^[99] A reduction of one tenth will be applied for guilty pleas entered on the first day of trial. Sentence reductions will be reduced further, ‘even to zero’, if a guilty plea is entered during the course of a trial.^[100]

Delay

4.72 Regardless of the features of a jurisdiction’s pre-trial system, all jurisdictions experience delay in resolving cases.

4.73 Tables 14, 15 and 16 below compare the time taken to finalise a case from its commencement date in each court, expressed as a percentage of the total number of finalised cases in that court.^[101] In Tables 14 and 15 the data excludes appeal cases.

Table 14: Time taken to finalise criminal cases in Australian Supreme Courts, 2017–18^[102]

Table 15: Time taken to finalise criminal cases in Australian District/County Courts,

2017–18^[103]

Table 16: Time taken to finalise criminal cases (summary as well as indictable stream cases) in Australian Magistrates’/Local Courts, 2017–18^[104]

4.74 This data shows that the vast majority of cases in most jurisdictions finalise in higher courts within 24 months, and within 12 months in Local or Magistrates’ Courts. With the exception of Tasmania in the Magistrates’ Court and New South Wales in the higher courts, a majority of cases in the higher courts finalised within 12 months and within six months in Local or Magistrates’ Courts.

4.75 The Commission does not have data on the overall average time frame for the final disposition of indictable matters in Australian jurisdictions other than Victoria.

The right to a fair trial

4.76 In all jurisdictions, the common law right to a fair trial applies equally to committal and pre-trial procedures as it does during a trial. Issues that may infringe an accused person’s right to a fair trial include undue delay, failure of the prosecution to disclose its case in a timely way, and an inability to access legal aid funding.^[105]

4.77 The Australian Capital Territory (since 2004), Queensland (since February 2019), as well as Victoria and comparable overseas jurisdictions, have dedicated human rights legislation.^[106] This legislation recognises the right of an accused person to a fair trial (or hearing) and to other rights that should be accorded during criminal proceedings, including to be presumed innocent until proved guilty, to have adequate time and facilities to prepare a defence, and to be tried without unreasonable delay.^[107]

4.78 The human rights legislation in the Australian Capital Territory and in Queensland also recognises that a child charged with a criminal offence has the right to be brought to trial as quickly as possible, and to a procedure that takes into account the child’s age and the desirability of promoting his or her rehabilitation.^[108]

Access to legal aid

4.79 The legal aid commission in each jurisdiction has particular policies and guidelines about who can access legal aid funding and for what types of criminal cases. Funding is available for committal and other pre-trial procedures depending on varying criteria.

4.80 For example, in the Northern Territory legal aid is available for oral committal hearings if ‘specific issues have been identified which can be clarified or resolved at committal and there is a reasonable likelihood that a substantial benefit will result from representation’.^[109]

4.81 In Tasmania, legal aid will be provided in oral preliminary proceedings if the conditions are met for the court to order that a witness give evidence.^[110]

Resource implications

4.82 Reforming pre-trial procedure may have wider impacts throughout the criminal justice system, and implementing reform is likely to have resource implications.

4.83 One example is provided by the ‘Appropriate Early Guilty Plea’ (AEGP) reforms introduced in New South Wales in 2018, which received $92 million in dedicated funding.^[111] The reforms were part of a wider criminal justice reform package that included a community sentencing and supervision scheme and a regime for the management of high risk offenders.^[112] When it was first introduced, the New South Wales Government committed $200 million to funding the entire package.^[113]

4.84 Of the funds dedicated to the AEGP reforms, a proportion went to the New South Wales Police Force and the New South Wales ODPP to promote early disclosure and early involvement of the ODPP in finalising charges. Funding was also provided to the ODPP and New South Wales Legal Aid ‘to ensure continuity of senior lawyers for both the prosecution and the defence from start to finish.’^[114] The ODPP funding was used for a major recruitment of new staff.^[115] Initially, $9 million was allocated to Legal Aid.^[116] The New South Wales Government has since committed an additional $10 million for the funding of Legal Aid lawyers.^[117]

1. See, eg, Department of the Attorney-General and Justice, Northern Territory Government, Committal Reform Review (Report, March 2015) 5; Emily Warner, Supreme Court of Tasmania, A Guide to New Proceedings for the Disposition of Indictable Offences, Version 2.1 (February 2010); New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas—Models for Discussion (Consultation Paper No 15, 2013) 111.

   ↑

2. These amendments were contained in the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) and the Crimes (High Risk Offenders) Amendment Act 2017 (NSW).

   ↑

3. Criminal Procedure Act 1986 (NSW) div 4.

   ↑

4. Ibid s 66(2).

   ↑

5. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas—Models for Discussion (Consultation Paper No 15, 2013) 5.

   ↑

6. New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, 6 (Mark Speakman, Attorney-General).

   ↑

7. Criminal Procedure Act 1921 (SA) s 106(1).

   ↑

8. Ibid s 106(1)(b).

   ↑

9. Office of the Director of Public Prosecutions Queensland, Director’s Guidelines (30 June 2016) [21] <https://www.justice.qld.gov.au/__data/assets/pdf_file/0015/16701/directors-guidelines.pdf>.

   ↑

10. Australian Capital Territory Director of Public Prosecutions, Annual Report 2017-2018 (2018) 2.

    ↑

11. Director of Public Prosecutions England and Wales, ‘The Code for Crown Prosecutors’, (Web Page, 26 October 2018) [2.1], [3.3]
    
    <https://www.cps.gov.uk/publication/code-crown-prosecutors>.

    ↑

12. Ibid [3.2].

    ↑

13. Judiciary of England and Wales, The Better Case Management (BCM) Handbook (8 January 2018) 21 [5].

    ↑

14. Director of Public Prosecution Act 1986 (NSW) s 15A(4)(b). The disclosure certificate must be in the form prescribed in Schedule 1 of Director of Public Prosecutions Regulation 2015 (NSW).

    ↑

15. Director of Public Prosecution Act 1986 (NSW) s 15A(1).

    ↑

16. NSW Police Force and Office of the DPP, Agreement Between NSW Police Force & Office of the DPP (NSW) Concerning the Content and Service of an Early Appropriate Guilty Plea Brief and Charge Certification (27 April 2018) pt 4.

    ↑

17. R v Solomon (2005) 192 FLR 421, 442.

    ↑

18. Criminal Code Act 1899 (Qld) s 590AB.

    ↑

19. Criminal Procedure Act 2004 (WA) ss 41, 42(6), 95.

    ↑

20. Commonwealth Director of Public Prosecutions, Statement on Disclosure in Prosecutions Conducted by the Commonwealth (March, 2017) 3.

    ↑

21. See, eg, Criminal Procedure Act 1921 (SA) s 125(1).

    ↑

22. Justices Act 1886 (Qld) s 83B. See also Magistrates’ Courts Queensland, Practice Direction No 13 of 2010: Disclosure, 1 November 2010, [15].

    ↑

23. Criminal Procedure Act 2004 (WA) s 44(1)(b)(iii).

    ↑

24. Criminal Procedure Act 2011 (NZ) ss 54, 57–58; New Zealand Community Law, ‘Criminal Courts’, NZ Community Law Manual Online <https://communitylaw.org.nz/community-law-manual/chapter-33-the-criminal-courts/the-criminal-courts/>.

    ↑

25. United Kingdom Crown Court, Plea and Trial Preparation Hearings – Introduction and Guidance (Revised December 2015) 4
    
    <http://www.hse.gov.uk/enforce/enforcementguide/court/crowncourt.htm>.

    ↑

26. Judiciary of England and Wales, The Better Case Management (BCM) Handbook (8 January 2018) 5–6.

    ↑

27. A ‘preliminary inquiry’ is the Canadian equivalent of a committal hearing.

    ↑

28. Criminal Code, RSC 1985, c C-46, s 536.4(1)(c).

    ↑

29. Magistrates’ Court of the Australian Capital Territory, Practice Direction No 1 of 2014: Listing Procedure for Criminal Matters, 18 December 2014 [1.2].

    ↑

30. Supreme Court of Tasmania, Practice Direction No 2 of 2016: Applications for Preliminary Proceedings Orders, 5 September 2016, [6].

    ↑

31. New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, 6 (Mark Speakman, Attorney-General).

    ↑

32. Criminal Procedure Act 1986 (NSW) s 65.

    ↑

33. Criminal Procedure Act 2011 (NZ) ss 55–6.

    ↑

34. Ibid s 55(1)(a).

    ↑

35. United Kingdom Ministry of Justice, The Criminal Procedure Rules—The Criminal Practice Directions (April 2019) r 3.3 <https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/criminal-procedure-rules-practice-directions-april-2019.pdf>.

    ↑

36. Ibid r 3.3(2)(d).

    ↑

37. While generally in the form of a written statement, evidence may in some situations be audio or video recorded. For example, in NSW a recorded statement made by a child under 16 years or a person who is cognitively impaired can form his or her evidence-in-chief: Criminal Procedure Act 1986 (NSW) s 306U(1).

    ↑

38. Youth Justice and Criminal Evidence Act 1999 (UK) ss 27–28.

    ↑

39. Criminal Procedure Act 2004 (WA) sch 3 cl 5(4).

    ↑

40. Ibid sch 3 cl 6(2)(b).

    ↑

41. Ibid.

    ↑

42. Criminal Procedure Act (NSW) s 82(4); Justices Act 1886 (Qld) s 110A(5).

    ↑

43. Local Court (Criminal Procedure) Act 1928 (NT) s 105H(2).

    ↑

44. Magistrates Court Act 1930 (ACT) ss 90AA(6)–(7) s 90AB(2)(b).

    ↑

45. Local Court (Criminal Procedure) Act 1928 (NT) s 105H(3)–(4)

    ↑

46. Criminal Code Act 1924 (Tas) s 331B(c).

    ↑

47. Criminal Procedure Act 1986 (NSW) s 82(5).

    ↑

48. Justices Act 1886 (Qld) ss 83A(5AA), 110B.

    ↑

49. Criminal Procedure Act 1921 (SA) ss 114(2)–(3).

    ↑

50. Criminal Code, RSC 1985, c C-46, s 540(9).

    ↑

51. Ibid c C-46, s 536.4(1)(b).

    ↑

52. Criminal Procedure Act 2011 (NZ) s 92.

    ↑

53. Criminal Procedure Act 1986 (NSW) s 84. The regulations may make provision for or with respect to the determination of special reasons under this section.

    ↑

54. Local Court (Criminal Procedure) Act 1928 (NT) s 105H(4)(h).

    ↑

55. Ibid s 105H(5).

    ↑

56. Evidence Act 1977 (Qld) s 21AG(4)–(5).

    ↑

57. Criminal Procedure Act 1921 (SA) s 114(3).

    ↑

58. ‘Affected person’ is the complainant in a range of specified offences, all of which relate to sexual offences and/or the ill treatment of children: Justices Act 1959 (Tas) s 3.

    ↑

59. Criminal Code Act 1924 (Tas) s 331B(3).

    ↑

60. Criminal Procedure Act 2011 (NZ) ss 92–3.

    ↑

61. Magistrates Court Act 1930 (ACT) s 90AB(1).

    ↑

62. Local Court (Criminal Procedure) Act 1928 (NT) s 105L.

    ↑

63. Criminal Procedure Act 1986 (NSW) s 83(1).

    ↑

64. Ibid s 83(2).

    ↑

65. Local Court (Criminal Procedure) Act 1928 (NT) s 105L

    ↑

66. Ibid.

    ↑

67. Evidence Act 1977 (Qld) ss 21AB(iii), 21AF. The legislation refers to an ‘affected child’, which means a child who is a witness and not a defendant in a proceeding: s 21AC.

    ↑

68. Justices Act 1886 (Qld) s 110C(1)–(2); Criminal Procedure Act 1986 (NSW) s 85(4).

    ↑

69. Criminal Procedure Act 1986 (NSW) s 85(4)–(5).

    ↑

70. Evidence Act 1977 (Qld) s 21AH.

    ↑

71. Local Court (Criminal Procedure) Act 1928 (NT) s 105K.

    ↑

72. Criminal Code Act 1924 (Tas) s 331B(4)(a).

    ↑

73. An ‘affected person’ is the complainant in a range of specified offences, all of which relate to sexual offences and/or the ill treatment of children: Justices Act 1959 (Tas) s 3.

    ↑

74. Criminal Code Act 1924 (Tas) s 331B(4)(b).

    ↑

75. Criminal Code, RSC 1985, c C-46, s 537(1.1).

    ↑

76. Justices Act 1886 (Qld) s 83A(5AB); Evidence Act 1977 (Qld) ss 9E, pt 2, div 4A, sub-divs 2–4.

    ↑

77. Criminal Procedure Act 2011 (NZ) s 97.

    ↑

78. Magistrates Court Act 1930 (ACT) ss 88B, 94.

    ↑

79. Local Court (Criminal Procedure) Act 1928 (NT) ss 109, 112.

    ↑

80. Justices Act 1886 (Qld) ss 104, 108, 110A, 114.

    ↑

81. Criminal Procedure Act 1921 (SA) ss 113(3), 115(1)(a).

    ↑

82. Criminal Code, RSC 1985, c C-46, ss 535, 536(4), 536.1(3), 584(1)(a).

    ↑

83. Justice Legislation Amendment (Committals and Guilty Pleas) Act 2018 (NSW).

    ↑

84. Justices Act 1959 (Tas) s 60.

    ↑

85. Criminal Procedure Act 2004 (WA) ss 43–44.

    ↑

86. That is, where the defendant may elect either to have the matter tried summarily in the Magistrates’ Court, or before a judge and jury in the Crown Court: United Kingdom Ministry of Justice, Guide to Criminal Court Statistics (13 December 2018) <https://www.judiciary.uk/wp-content/uploads/2018/02/bcm-guide-for-practitioners-20180207.pdf>.

    ↑

87. Director of Public Prosecutions South Australia, Statement of Prosecution Policy and Guidelines (October 2014) 13
    
    <http://www.dpp.sa.gov.au/wp-content/uploads/2015/03/DPP-Prosecution-and-Policy-Guidelines.pdf>.

    ↑

88. Ibid.

    ↑

89. Australian Capital Territory Director of Public Prosecutions, Annual Report 2017–18 (2018) 22.

    ↑

90. Queensland Office of the Director of Public Prosecutions, Annual Report 2017–18 (2018) 18.

    ↑

91. South Australia Office of the Director of Public Prosecutions, 2017–18 Annual Report (2018) 9. The percentage of guilty pleas entered during a trial was lower (8 per cent) in South Australia’s higher circuit courts.

    ↑

92. Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D.

    ↑

93. Ibid s 25F.

    ↑

94. Sentencing Act 2017 (SA) s 40.

    ↑

95. Sentencing Act 1995 (WA) s 9AA(3).

    ↑

96. Ibid s 9AA(4).

    ↑

97. Criminal Justice Act 2003 (UK) s 144; United Kingdom Sentencing Council, Reduction in Sentence for a Guilty Plea—Definitive Guideline
    
    (1 June 2017) <https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-Plea-definitive-guideline-SC-Web.pdf>.

    ↑

98. United Kingdom Sentencing Council, Reduction in Sentence for a Guilty Plea—Definitive Guideline (1 June 2017)
    
    <https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-Plea-definitive-guideline-SC-Web.pdf>.

    ↑

99. Ibid.

    ↑

100. Ibid.

     ↑

101. Ibid.

     ↑

102. Australian Productivity Commission, Report on Government Services (2019) Part C, Chapter 7, Table 7A.19, (a). See Table 13 in Chapter 3 of this issues paper for comparable Victorian data. This data predates the introduction of the Early Appropriate Guilty Plea Scheme in NSW.

     ↑

103. Australian Productivity Commission, Report on Government Services (2019) Part C, Chapter 7, Table 7A.19, (a). See Table 13 in Chapter 3 of this issues paper for comparable Victorian data.

     ↑

104. Ibid.

     ↑

105. See the discussion under the heading ‘Protecting the right to a fair trial’ in Chapter 5.

     ↑

106. Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 1998 (UK); Bill of Rights Act 1990 (NZ); Constitution Act 1982 (Canada) pt 1, Canadian Charter of Rights and Freedoms.

     ↑

107. See, eg, Human Rights Act 2004 (ACT) ss 21–22; Human Rights Act 2019 (Qld) ss 31–32; Constitution Act 1982 (Canada) pt 1; Canadian Charter of Rights and Freedoms, ss 10–11.

     ↑

108. Human Rights Act 2004 (ACT) s 20; Human Rights Act 2019 (Qld) s 33.

     ↑

109. Northern Territory Legal Aid Commission, Guidelines (15 June 2018) Ch 5, 3.2.

     ↑

110. Legal Aid Commission of Tasmania, Guidelines for Grants (13 November 2018) 1(b) <https://www.legalaid.tas.gov.au/resources-for-lawyers/guidelines/>. The considerations the court must take into account when deciding whether to make an order that a witness give evidence are set out in section 331B(3) of the Criminal Code Act 1924 (Tas).

     ↑

111. Emmanuel Kerkyasharian, ‘Crisis in Legal Aid’ (Spring 2018) Bar News, New South Wales Bar Association 18, 20.

     ↑

112. New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, (Mark Speakman, Attorney-General).

     ↑

113. Ibid 1.

     ↑

114. Ibid [34].

     ↑

115. New South Wales Office of the Director of Public Prosecutions, Annual Report 2017–18 (2018) 17.

     ↑

116. Emmanuel Kerkyasharian, ‘Crisis in Legal Aid’ (Spring 2018) Bar News, New South Wales Bar Association 18, 20.

     ↑

117. Ibid.

     ↑