Committals: Issues Paper (html)

5. Objectives and options for reform of committals in Victoria

Introduction

5.1 The Commission is considering changes to Victoria’s committal system and related pre-trial procedures that could:

• reduce trauma experienced by victims and witnesses

• improve efficiency in the criminal justice system

• ensure fair trial rights.

5.2 The first section of this chapter elaborates on these objectives.

5.3 The second part of the chapter sets out the issues raised by the terms of reference. The issues are not organised in order of priority. Instead, the structure of this part of the chapter reflects how criminal matters progress through the courts from the original filing of charges to ultimate disposition.

5.4 The discussion does not pre-empt or evaluate proposals for reform. Rather, it describes the issues and provides contextual information and relevant data. The Commission seeks comments from stakeholders and interested members of the public on these issues and on any others that they believe the Commission should address in its final report.

5.5 The third part of the chapter provides an overview of two reform models previously proposed in Victoria.

Reform objectives

Reducing trauma experienced by victims and witnesses

5.6 Victims of crime and witnesses to criminal acts may experience physical and psychological trauma. The complex and enduring emotional and psychological damage caused by criminal acts has been extensively documented.^[1] Recent reports also emphasise the often damaging impact on victims and witnesses of participating in criminal justice proceedings.^[2] Long delays,^[3] complex processes, and feeling ‘almost incidental’ to proceedings^[4] can cause anxiety and distress. In addition, victims and witnesses may find giving evidence in court, particularly cross-examination, traumatic and intimidating.^[5]

5.7 The right of victims and witnesses to be treated respectfully in the criminal justice process is widely accepted.^[6] Victims and witnesses are entitled to acknowledgement and respect, information and support, participation and protection.^[7]

5.8 Committal proceedings may contribute to the harms experienced by victims and witnesses if they delay finalisation of a matter,^[8] or require victims or witnesses to be cross-examined.^[9] They may also have a negative impact if victims and witnesses perceive the process as a trigger for the prosecution to inappropriately downgrade or withdraw charges.^[10]

Improving efficiency in the criminal justice system

5.9 Efficiency in a criminal justice system can be measured by markers such as timeliness and affordability.^[11] Timeliness may be characterised as ‘a balance between the time required to properly obtain, present, and weigh the evidence, law and arguments, and unreasonable delay due to inefficient processes and insufficient resources.’^[12]

5.10 Committal proceedings have been both celebrated and criticised for their impact on efficiency in the criminal justice system.

5.11 From a critical perspective, in 2007 the Queensland Department of Justice and Attorney-General cited court staff who reported lengthy delays in resolving committal proceedings as a result of:

• multiple committal mentions

• late consent to proceeding by way of hand-up brief

• late changes to requests to cross-examine witnesses

• difficulties in accurately estimating the timeframe for contested committals

• lengthy and unproductive cross-examination of witnesses.^[13]

5.12 Subsequent reforms in Queensland gave magistrates greater powers to set and enforce timelines for committal proceedings and limited the circumstances in which prosecution witnesses can be called to give evidence and the matters on which they can be cross-examined.^[14]

5.13 From a more positive perspective, the Magistrates’ Court of Victoria (MCV) suggests that, ‘the current committal system is working effectively and efficiently’, producing considerable ‘benefits to the administration of justice’.^[15] MCV observes that, currently, around two-thirds of all cases in the committal stream resolve prior to committal with a guilty plea heard either summarily or in a higher court.^[16] The Court also notes it has introduced changes over a number of years to enhance the efficiency of committal proceedings, including more active case management.^[17]

Protecting the right to a fair trial

5.14 Committal proceedings have been viewed as an important element of the right to a fair trial, ensuring independent scrutiny of the evidence before an accused person faces trial.^[18] Their importance from the perspective of fair trial rights has also been defended on the basis they are ‘the key mechanism through which an accused obtains disclosure of the prosecution case.’^[19]

5.15 In many respects, the purposes of committal proceedings set out in Victoria’s Criminal Procedure Act 2009 (Vic) (CPA) echo the rights of an accused person in criminal proceedings contained in the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter).^[20] Of particular note are the Charter rights to:

• be informed promptly and in detail of the charge^[21]

• have adequate time and facilities to prepare a defence^[22]

• examine or have examined witnesses against him or her, unless otherwise provided for by law^[23]

• be tried without unreasonable delay.^[24]

5.16 An accused person also has a right to access legal representation, regardless of his or her financial circumstances.^[25] Legal aid is currently available for committal proceedings in Victoria, subject to eligibility criteria.^[26]

5.17 Committal proceedings have been criticised for unduly delaying the resolution of criminal matters.^[27] To the extent that this is true, they may undermine rather than support an accused person’s right to a fair trial, especially if the accused is in custody pending resolution of his or her case.

5.18 The contribution of committal proceedings to a fair trial is also more broadly disputed. The New South Wales Law Reform Commission (NSWLRC) suggests that alternative pre-trial procedures, combined with the role played by professional public prosecutors in filtering indictable criminal prosecutions, have usurped the role of committal proceedings in affording an accused person a fair trial.^[28]

Question

1 What purposes can or should committal proceedings serve?

Issues

Charging practices and the decision to prosecute

5.19 As in many jurisdictions, in Victoria the charges originally filed by police or other investigating agencies are likely to be different from those that are ultimately prosecuted. This is so despite general consistency between police charging guidelines^[29] and the Policy of the Director of Pubic Prosecutions for Victoria on the discretion to prosecute.^[30] The divergence between police charges and those ultimately prosecuted may stem from a number of factors:

• police charges may appropriately be informed by evidence and investigations that are incomplete and ongoing^[31]

• the police tend to file individual charges whereas the DPP is more likely to use ‘consolidated’ charges^[32]

• plea negotiations generally occur only after defence lawyers are involved in a case.

5.20 While acknowledging that some divergence between the charges initially filed and those ultimately prosecuted may be appropriate, the Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) emphasised the distress this can cause victims. This is similarly the case if the prosecution accepts a guilty plea on the basis that charges are downgraded or withdrawn. The RCIRCSA says that the distress for victims is greatest where ‘they feel that the charges…do not reflect the worst abuse or the extent of the abuse they suffered.’^[33]

5.21 The Policy of the Director of Public Prosecutions for Victoria (the Director’s Policy) encourages early resolution and supports plea negotiations to achieve it, but cautions that charges should reflect an accused’s criminality, based on what can be proved beyond reasonable doubt and allowing for a sentence that adequately reflects the accused’s criminality.^[34] A victim’s views must be sought prior to resolution, and will be taken into account when determining if the resolution is in the public interest.^[35]

5.22 The RCIRCSA made several recommendations to improve charging practices:

• police charging decisions should recognise the importance to complainants of the correct charges being laid as early as possible, so that charges are not significantly downgraded at or close to trial^[36]

• prosecutors should recognise the importance to complainants of the correct charges being laid as early as possible so that charges are not significantly downgraded or withdrawn at or close to trial. They should provide early advice to police on appropriate charges to lay when such advice is sought^[37]

• prosecutors should confirm the appropriateness of the charges as early as possible once the case is allocated to them, to ensure that the correct charges have been laid and to minimise the risk that charges will be downgraded or withdrawn closer to the trial date^[38]

• prosecutors must endeavour to ensure that they allow adequate time to consult the complainant and the police in relation to any proposal to downgrade or withdraw charges.^[39]

5.23 These recommendations are consistent with those made in 2000 by the Standing Committee of Attorneys-General’s (SCAG) ‘Deliberative Forum on Criminal Trial Reform’.^[40] The Forum recommended that Directors of Public Prosecutions should provide prosecution advice during the investigative process in all complex cases.^[41] This could include ‘reviewing the sufficiency of evidence, advising on proofs to be obtained and suggesting appropriate charges.’ SCAG also recommended the DPP’s involvement at the earliest possible opportunity in reviewing charges laid by police.^[42]

5.24 A review of criminal proceedings in England and Wales also called for reforms to ensure appropriate early charging decisions.^[43] This review recommended that those who make charging decisions are appropriately trained in the law, that there should be a mechanism for review of inappropriate charges, and a direct line of accountability to the DPP.^[44]

5.25 Crown prosecutors in England and Wales are now responsible for deciding if a person should be charged with a serious criminal offence.^[45]

5.26 Similar reform in New South Wales introduced the involvement of senior DPP prosecutors earlier in proceedings as a means of dealing with inconsistency between police and DPP charging practices. NSW Police now commence proceedings against an accused person and provide a simplified brief of evidence to the NSW Director of Public Prosecutions.^[46] A supervising police officer must certify that the investigation and brief are complete.^[47] The brief is then reviewed by a senior prosecutor who files a ‘charge certificate’ confirming the charges that will proceed to trial and identifying any charges that should be withdrawn.^[48]

Questions

2 What, if any, measures should be introduced to:

(a) reduce the difference between charges that are initially filed and those ultimately prosecuted?

(b) ensure appropriate charges are filed at the earliest possible stage in a case?

3 Should the OPP be involved in determining appropriate indictable charges at an earlier stage? If so, how?

Disclosure obligations

The importance of disclosure

5.27 The Hon. Justice Martin Moynihan describes proper and timely disclosure as ‘the lynchpin of our criminal justice process’.^[49]

5.28 Pre-trial disclosure of the prosecution case is important because it provides the accused with knowledge of the case against him or her preventing ‘trial by ambush’ and contributing to a fair trial.^[50]

5.29 Disclosure by the prosecution of relevant material helps to achieve ‘equality of arms’ by ensuring that each party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent.^[51] Full disclosure redresses the imbalance that might otherwise characterise an adversarial system where the police and prosecutors have control of ‘the investigatory process’.^[52]

5.30 Timely disclosure also facilitates the efficient conduct of criminal matters. Justice Moynihan notes that proper and timely disclosure ‘minimises delay… fosters early pleas of guilty, founds negotiation and reduces wasting of resources’.^[53]

Do committal proceedings facilitate disclosure?

5.31 Committal proceedings were once widely viewed as playing a central role in ensuring full prosecution disclosure. The various steps involved in committal proceedings were seen as providing numerous opportunities to ensure adequate disclosure, with the committal hearing playing a particularly significant role. There is now some doubt about the value of committal proceedings in this regard, as statutory disclosure obligations and other pre-trial procedures attempt to ensure early disclosure.

5.32 In 2014, the NSWLRC considered whether committal proceedings facilitate prosecution disclosure. The Commission concluded that while they provide a trigger point for disclosure, they do not operate effectively to ensure provision of a comprehensive brief of evidence. The Commission found that many matters were committed for trial despite the prosecution case not being fully disclosed. It also suggested that the committal hearing was not the optimal point in proceedings to focus on disclosure, which ideally should occur much earlier.^[54]

5.33 Conversely, Liberty Victoria argues that a committal hearing is ‘the key mechanism through which an accused obtains disclosure of the prosecution case’.^[55] Given that witness statements are commonly drafted under the guidance of police officers, Liberty Victoria suggests adequate disclosure can only be achieved ‘where witnesses are cross-examined [at committal] about important aspects of their potential evidence which are not found in the written materials’.^[56]

Challenges that arise in relation to proper disclosure

Disclosure between investigating agencies and the prosecution

5.34 In Farquharson, the Court confirmed that relevant material which is in the hands of the police or other investigating agencies must be treated as ‘disclosable’, even if the police fail to communicate the material to the DPP.^[57] For disclosure purposes, the prosecution is indivisible from the police, and all its agencies are assumed to have constructive knowledge of anything known to other agencies.^[58]

5.35 As discussed in Chapter 4, in New South Wales, legislation attempts to ensure early and full disclosure between the police or other investigating agency and the DPP. Law enforcement officers have a duty to disclose to the DPP ‘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’.^[59] When a police brief of evidence relating to an indictable matter is served on the DPP, it must be accompanied by a ‘disclosure certificate’.^[60] The brief of evidence must not be served on the DPP until a supervising police officer has certified that the investigation, brief of evidence, and disclosure certificate are complete.^[61]

Is the prosecution a partisan participant?

5.36 The role of modern prosecuting authorities in the criminal justice system has been described as to act as ‘an impartial “minister of justice”’.^[62] The prosecution is expected to assist the court by acting fairly and impartially and avoiding appellable error.^[63] Yet to expect the prosecution to accord full disclosure is viewed by some commentators as equivalent to ‘putting a fox in charge of a hen coop.’^[64]

5.37 The heavy burden that disclosure obligations place on prosecuting authorities—who may have to sift through voluminous material to determine its relevance—has also been noted.^[65]

5.38 The ability of the defence to cross-examine witnesses and victims at a committal hearing, and thereby to obtain disclosure of the prosecution case, may be considered one way of alleviating the disclosure burden that currently falls on the prosecution. Cross-examination of witnesses may also respond to concerns that if the prosecution controls what material is disclosed, unfairness to the accused will invariably result, given the conflict between the prosecution’s obligations to act impartially and its ‘legitimate interest in seeking the conviction of the accused’.^[66]

5.39 It has been suggested that in jurisdictions that preclude or narrow the ability of the defence to cross-examine witnesses during committal proceedings, there have been ‘many instances where “non-disclosure” issues have resulted in convictions being overturned…where a competently contested committal…would have likely avoided such miscarriages’.^[67]

5.40 On the other hand, the stress and potential trauma suffered by witnesses and victims during cross-examination at committal hearings is a widely acknowledged concern.^[68]

Defence disclosure obligations

5.41 Historically, an accused person’s disclosure obligations were limited on the basis this was necessary to preserve his or her right to silence.^[69]

5.42 Even so, it is argued that defence disclosure is an important prerequisite to improving efficiency in the criminal justice system because it enables effective pre-trial preparation and negotiations between the parties.^[70] This means that even if a matter is not resolved prior to trial, the trial will not be delayed or extended unnecessarily.

Questions

4 What measures can be introduced to improve disclosure in indictable matters:

(a) between investigating agencies and the DPP?

(b) between prosecutors and the defence?

5 To what extent do committal proceedings play a necessary role in ensuring proper and timely disclosure?

6 Could appropriate and timely disclosure occur within a pre-trial procedure that does not include committal proceedings?

5.43 Some advocates of expanded defence disclosure obligations suggest they will not impinge on an accused’s right to a fair trial as long as the accused’s disclosure obligations are not as extensive as those imposed on the prosecution.^[71]

The case management function of the courts

5.44 Courts play an active role in case management to ensure that parties are complying with their legal obligations, identify the issues in a case, and to resolve, where possible, any issues prior to trial.

5.45 Case management occurs both during committal proceedings and following committal. The higher courts and the Magistrates’ Court familiarise themselves with the case, set dates for the disclosure of relevant materials, and identify pre-trial legal and evidentiary issues, which raises the question of whether there is an unnecessary duplication of work.^[72]

Pre-trial witness examination

5.46 There are a variety of circumstances in which a court may grant leave for a witness to be cross-examined prior to trial.^[73] Given the availability of other pre-trial cross-examination opportunities, there is debate about whether the ability to cross-examine some witnesses at a committal hearing should be retained.

Cross-examination at committal hearings

5.47 The opportunity to cross-examine a witness at a committal hearing is defended as the only basis on which adequate disclosure of the prosecution case can be assured and thus as an important component of the accused person’s right to a fair trial.^[74]

5.48 Proponents of retaining a limited right to cross-examine at committal hearings argue:

there is a vast difference between subjecting an accused person to trial on the basis of typewritten statements of unknown reliability and presenting an accused person for trial upon the basis of evidence the potency of which has been tested by cross-examination.^[75]

5.49 In light of this, disclosure in the absence of the opportunity to cross-examine has been described as ‘a “paper tiger” devoid of forensic teeth’.^[76]

5.50 It is possible that other opportunities to cross-examine prior to trial do not adequately compensate for the loss of this opportunity at a committal hearing. There are two reasons for this:

• other opportunities for pre-trial cross-examination apply in a limited set of circumstances which, generally speaking, differ from those applicable to committal hearings (as set out in Chapter 3)

• where a court grants leave to cross-examine during a committal hearing, this occurs much earlier in the overall criminal proceeding than other pre-trial avenues, providing for earlier resolution.

5.51 In its report on the The Role of Victims of Crime in the Criminal Trial Process (Victims of Crime Report), the Commission highlighted the potentially traumatic impact on victims of being cross-examined at a committal hearing. It noted that ‘[c]ross-examination at a committal hearing is often described as being worse than at trial.’^[77] It found there were ‘two reasons for this:

• Victims cannot tell their story through evidence-in-chief. Rather, their statement is tendered to the magistrate and they are subject only to cross-examination.

• The manner of questioning by the defence is not constrained by the presence of a jury. As a result it may be more oppressive or intimidating.’^[78]

Previous reforms and reform recommendations

5.52 In the Victims of Crime Report, the Commission made a number of recommendations to further limit cross-examination during committal proceedings. One recommendation was to establish an ‘intermediary’ scheme, as discussed in Chapter 3.

5.53 Other recommendations included:

• The introduction of a ‘protected’ victim category for those victims not already protected who are likely to suffer severe emotional trauma or be so distressed as to be unable to give evidence or give evidence fairly.^[79]

• Amending the CPA to prohibit leave being granted to cross-examine victims whose cross-examination is not otherwise prohibited at committal hearings, except on matters that relate directly and substantially to the decision to commit for trial. The test for granting leave should include reference to whether the victims are able and wish to be cross-examined at a committal hearing.^[80]

5.54 As set out in Chapter 4, most jurisdictions allow some form of pre-trial cross-examination, although there are differences in the tests for when leave to cross-examine may be granted. A range of measures have been adopted in other jurisdictions to reduce the trauma that may be experienced by victims and other witnesses during pre-trial cross-examination, and limits have been imposed on the scope of questions that may be put to victims and witnesses.

5.55 Tasmania and New Zealand no longer conduct committal hearings but have alternative pre-trial procedures allowing for cross-examination of witnesses. In Tasmania, if leave is granted to cross-examine a witness, this occurs in the Magistrates’ Court.

5.56 There is no provision for the pre-trial examination and cross-examination of witnesses in England and Wales, except where the evidence of vulnerable witnesses is pre-recorded for use during a trial.^[81]

5.57 In Western Australia, an accused may not cross-examine witnesses prior to trial unless the prosecution has obtained leave to examine a witness who has refused to provide a written statement, in which case the accused will generally be entitled to cross-examine that witness.^[82]

Questions

7 To what extent, if at all, is the ability to cross-examine witnesses during a committal hearing necessary to ensuring adequate and timely disclosure of the prosecution case?

8 Should some or all of the existing pre-trial opportunities to cross-examine victims and witnesses be retained? If so, why?

9 Should cross-examination at a committal hearing be further restricted or abolished? If so, why?

10 If cross-examination at a committal hearing is further restricted, how should this occur?

11 Are there any additional classes of victims or witnesses who should not be cross-examined pre-trial? If so, who?

12 What additional measures could be introduced to reduce trauma for victims or other vulnerable witnesses when giving evidence or being cross-examined at a committal or other pre-trial hearing?

The test for committal

5.58 Historically, committal proceedings were designed to support the efficient functioning of criminal justice by acting as a filtering mechanism, ensuring that weak or unsubstantiated cases were not pursued to trial.^[83] It is often said that this role is now fulfilled by a DPP.^[84] Professional prosecutors from the Office of the Director of Public Prosecutions (ODPP) assess the material provided by the informant and make decisions about appropriate charges based on the likelihood of conviction. The Victorian Director’s Policy emphasises that charges should not be pursued unless there is a reasonable prospect of conviction.^[85]

5.59 The relatively low number of cases discharged by magistrates at committal hearings is cited in support of the argument that committal to a higher court based on a magistrate’s assessment of the evidence in a case no longer serves any meaningful purpose. For example, in New South Wales prior to the 2018 reforms abolishing the test for committal, around one per cent of matters were discharged by magistrates at the committal hearing.^[86]

5.60 Discharge figures are similar in Victoria, with the OPP suggesting that two per cent of accused were discharged at committal hearings over the past decade.^[87]

5.61 In New South Wales prior to the 2018 reforms, more matters were withdrawn during committal proceedings in the Local Court by the prosecution than were discharged by a magistrate.^[88] This suggests that committal proceedings played a role in achieving early resolution in some matters by forcing the prosecution to review its case.

5.62 The NSWLRC accepted this, but went on to consider whether the prosecution’s exercise of its case review function was primarily a response to the ‘threat or possibility that the magistrate may not commit’. It noted this threat was negated by the ability of the prosecution to issue a direct (ex officio) indictment.^[89] The Commission posited that abolishing the test for committal would not lead to an increase in unsubstantiated matters proceeding as long as court supervised case management operates to ‘ensure the prosecution gives timely consideration to the charges.’^[90]

Questions

13 Should the current test for committal be retained?

14 Having regard to the DPP’s power to indict directly, is there a need for a test for committal?

15 Is there an appropriate alternative process for committing an accused person to stand trial?

The DPP’s power to indict directly

5.63 The Commission does not have data showing how many cases were prosecuted by the DPP on direct indictment following discharge in the Magistrates’ Court. Data provided by the OPP indicates that in 2017–18, 19 direct indictments were filed by the DPP.^[91]

Guilty pleas

The benefits of appropriate early guilty pleas

5.64 Most criminal matters resolve with a guilty plea. In Victoria in 2017–18, 80 per cent of prosecutions handled by the OPP were finalised on the basis of a guilty plea.^[92]

5.65 The problems associated with avoidably late guilty pleas are well established, as are the benefits of appropriate early guilty pleas. Victoria’s Sentencing Advisory Council notes:

An early guilty plea has a particularly significant impact on the cost and efficiency of criminal proceedings. It spares counsel and witnesses the cost and time involved in preparing the case and frees up the time and resources of the courts for other matters.^[93]

5.66 As well as enhancing the efficiency and affordability of the criminal justice system, an early guilty plea may benefit victims and witnesses, as well as the accused. For victims and witnesses, an early guilty plea spares them the potential stress and trauma of giving oral evidence in court.^[94] For the accused, a guilty plea expedites sentencing, which is particularly desirable if the accused is on remand in relation to the charges.^[95]

5.67 A study by Flynn and Freiberg highlights the costs savings achieved when an accused person pleads guilty prior to trial.^[96] They cite Victoria Legal Aid’s assessment that in 2014:

an average trial, including the instructing and appearance fees for defence practitioners alone can cost [Victoria Legal Aid] approximately $20,000 in the County Court and $34,000 in the Supreme Court…In contrast, when a guilty plea is entered, the total cost to VLA for preparation and attendance at the plea hearing…is $1,724 in the County Court and $2,353 in the Supreme Court.^[97]

Obstacles to securing appropriate early guilty pleas

5.68 In some cases, late guilty pleas may be appropriate and unavoidable—if, for instance, new evidence comes to light that could not reasonably have been known or disclosed earlier in proceedings. In other cases, however, a late plea may reflect failings in pre-trial criminal procedures.

5.69 The NSWLRC identified a number of impediments to appropriate early guilty pleas:

• the prosecution serves parts of the brief of evidence late

• the defence expects further evidence will be disclosed prior to trial

• the defence believes that it is common practice for the prosecution to overcharge early, and that the charges will be reduced as the proceedings advance

• the prosecution accepts a plea to a lesser charge late in the proceedings

• Crown Prosecutors with authority to negotiate are not briefed until late in the proceedings

• the defence perceives the court to be flexible in the way it applies a sentence discount for the utilitarian benefit of an early guilty plea that occurred later in the proceedings

• the defence is sceptical that sentencing discounts will be conferred to their client

• the defence believes that they will obtain better results in negotiations that occur just before trial

• discontinuity of legal representation means that advice and negotiations are inconsistent

• the defendant holds back a plea because the defendant wants to postpone the inevitable penalty, denies the seriousness of his or her predicament until the first day of trial, and/or is hopeful that the case will fall over due to lack of witnesses or evidence.^[98]

5.70 While the NSWLRC’s focus was on New South Wales, the obstacles identified have historically characterised criminal proceedings in other jurisdictions, including Victoria. For example, the practice of briefing less-experienced counsel during preliminary stages of proceedings, and only transferring briefs to more senior counsel at the trial stage, has been widespread.^[99]

5.71 In response to the obstacles identified, the NSWLRC made a number of recommendations. One recommendation was for a sentencing discount scheme to be established that ‘recognises the utilitarian benefit of the [guilty] plea and works to provide clear incentives to enter a plea early. It should not reward late pleas.’^[100] The details of the scheme introduced in New South Wales in response to this recommendation are set out in Chapter 4.^[101]

Implications for victims and the right to a fair trial

5.72 When considering the potential benefits of guilty pleas and how to encourage them, two issues should be kept in mind.

5.73 Firstly, the impact a guilty plea may have on victims and witnesses. The RCIRCSA notes the potential benefits for victims and witnesses of securing early guilty pleas, but it cautions that when an offender pleads guilty to fewer or less serious charges than those with which he or she was initially charged, ‘[t]his can cause considerable distress to victims.’^[102]

5.74 The second issue is the potential impact that incentives to plead guilty may have on the right to a fair trial.

5.75 The presumption of innocence may be undermined if an accused person is induced to plead guilty because of the unreasonably high cost of conducting a trial, or due to the risks attached to testing the prosecution case. In a critique of the sentencing discount scheme for early guilty pleas in England and Wales, Johnston and Smith argue that ‘[t]he temptation to avoid custody at any cost—even a false admission—may be overwhelmingly powerful for some defendants.’^[103]

5.76 A study by Flynn and Freiberg found that when an offence carries a mandatory minimum sentence, this places an accused under pressure to plead guilty in order to avoid this mandatory sentence, ‘even where there may be a strong case that the accused is not guilty of that lesser offence’.^[104]

5.77 Tasmania’s Sentencing Advisory Council refers to similar concerns:

It has been argued that [sentence] reductions [for early guilty pleas] are contrary to the presumption of innocence [because they penalise] offenders who proceed to trial. Concerns have also been expressed that it may place undue pressure on an innocent offender to enter a plea of guilty, particularly when a custodial sentence would follow a guilty finding at trial, but a guilty plea would result in a non-custodial sentence.^[105]

5.78 The council emphasises that any proposals for sentencing reform to encourage early guilty pleas ‘should not derogate from a defendant’s right to plead not guilty and receive proper advice of the case against him or her.’^[106]

5.79 Recognition that early guilty plea incentives may undermine the right to a fair trial explains why the phrase ‘appropriate early guilty pleas’ is widely used. It makes clear that any inducement to plead guilty early should:

…be an…encouragement for appropriate early pleas of guilty and not…an incentive to enter a guilty plea where an [alleged] offender would not otherwise have done so.^[107]

Do committal proceedings facilitate appropriate early guilty pleas?

5.80 The various stages of committal proceedings may all play a role in securing—or alternatively, in hindering—appropriate early guilty pleas. The influence each stage has will vary depending on how well designed it is, as well as on other factors such as how effectively rules are enforced and the wider legal culture.

5.81 Flynn and Freiberg found that

…a strong early resolution culture permeates the courts, [Victoria Legal Aid], Victoria Police and the OPP, which may, in part, contribute to the high rate of guilty pleas entered in Victoria each year. Indeed, there has been a noticeable shift in all facets of the legal process in Victoria (as evident elsewhere in Australia) towards a commitment to early resolution, where appropriate.^[108]

5.82 In the view of many defence counsel, committal hearings play an important role in securing appropriate early guilty pleas because they encourage the accused to confront the strength of the prosecution case at an early stage. Legal Aid Queensland has expressed the view—paraphrased here—that committal hearings are

…more effective than other court events, such as mentions, in underlining to the defendant the need to make decisions. Sometimes the evidence and the cross-examination at committal may steer the defendant towards a guilty plea if, for instance, the defendant has resisted [entering a guilty plea] because of a belief that a key prosecution witness may be unreliable or hostile. The cross-examination of that witness at the committal may indicate that there is little prospect of the defendant being able to defend the charges.^[109]

5.83 In Victoria, guilty pleas are entered at the time of committal in approximately 45 per cent of cases committed to higher courts.^[110] Moreover, an increasing proportion of matters that commence in the committal stream in Victoria are finalised summarily. In 2008–09, 20 per cent of committal stream cases were determined summarily, compared with

29 per cent of committal proceedings in 2017–18.^[111]

Questions

16 How effectively do committal proceedings ensure:

(a) appropriate early resolution of cases

(b) efficient use of court time

(c) parties are adequately prepared for trial?

17 Are there other pre-trial procedures that could equally or more effectively ensure:

(a) appropriate early resolution of cases

(b) efficient use of court time

(c) parties are adequately prepared for trial?

5.84 While the NSWLRC conceded that guilty pleas do occur in the period surrounding the committal procedure, it suggested:

this is likely to be because it coincides with the time that the ODPP is adequately

briefed in matters. As full committal hearings [involving cross examination of

witnesses] are uncommon, it is more likely to be the participation of the prosecuting agency which cause an increase in negotiation and plea activity than the actual process of committal itself.^[112]

Pre-trial delay

5.85 The Supreme Court of Victoria says the benefits of avoiding delay include:^[113]

• the time which may be spent on remand is minimised for the accused

• events are fresher in the mind of witnesses and therefore the quality of their evidence is not diminished by delay

• the experience of victims is substantially improved

• for those convicted and sentenced, access to rehabilitative programs is brought about sooner.^[114]

5.86 Committal proceedings have been criticised for contributing to delay by unnecessarily duplicating aspects of other pre-trial procedures and of the trial.^[115] Aside from this duplication, the time taken to finalise matters may be extended as a result of backlogs that develop when matters are waiting for committal mentions and hearings, and other committal events. The Supreme Court of Victoria suggests:

some of the largest periods of delay in the system are attributable to awaiting a hearing date, effectively “queuing”. This occurs in both the Magistrates’ Court during the committal process and then again in the higher court. The fact that this occurs twice within the course of a criminal proceeding significantly contributes to the overall time it takes to bring the matter to a conclusion.^[116]

5.87 In 2017–18 in Victoria, the median days between filing hearing^[117] and committal to a higher court was 228 days if committal occurred at a committal hearing.^[118] By comparison, if committal to a higher court occurred at a committal mention, the median number of days this took was 107.^[119]

5.88 The Magistrates’ Court of Victoria points out that it has introduced several measures to reduce delay. It reports that the ‘vast majority’ of committal hearings are listed for one day or less, and suggests that the length of committal hearings is kept within appropriate bounds as a result of the Court’s ‘stringent approach to the granting of leave to cross-examine.’^[120] It continues:

The cases involving longer periods tend to be in the area of white collar crime or murder which have the benefit of narrowing the real issues in dispute and highlighting matters of admissibility.^[121]

5.89 A problem not yet addressed by the Magistrates’ Court is the relatively high number of committal hearings that are adjourned. According to the OPP, over the last decade, 36 per cent of committal hearings were adjourned.^[122] The reason for these adjournments, the next listing type, and the progress of these matters is unknown, but any adjournment contributes in some degree to delay.

5.90 In Victoria in 2016–17, indictable matters took 17.6 months to complete.^[123] In 2017–18, indictable matters took on average 15.5 months to complete, bringing the five-year average down to 19.9 months.^[124]

5.91 As noted in Chapter 4, the Commission does not have data from other jurisdictions on the average time frame for completion of indictable matters. Regardless, however, of whether a jurisdiction has dispensed with a test for committal that involves an assessment of the evidence in a case, a significant minority of matters in all jurisdictions take more than six months to be finalised within the jurisdiction of the Magistrates’ or Local Courts (noting that these figures include summary as well as indictable stream cases), and more than a year until finalisation after entering the higher trial courts.^[125]

Previous reform proposals to address delay

5.92 The RCIRCSA in its ‘Criminal Justice Consultation Paper’ said that consideration should be given to abolishing committal hearings in those jurisdictions that have not already abolished them as a measure to reduce delay in prosecutions for child sexual abuse offences.^[126] While it concluded that ultimately the submissions it received concerning the contribution—if any—of committal hearings to avoidable delay aligned with replacing committal processes with the form of case management adopted in New South Wales,^[127] it did not make the abolition of committal proceedings a formal recommendation in its final report.

5.93 The RCIRCSA proposed that delay be addressed by measures to encourage:

• early allocation of prosecutors and defence counsel

• the Crown—including subsequently allocated Crown prosecutors—being bound by early prosecution decisions

• appropriate early guilty pleas

• case management and the determination of preliminary issues before trial.^[128]

Questions

18 How should concerns that committal proceedings contribute to inappropriate delay be addressed?

19 How should concerns that other pre-trial processes contribute to inappropriate delay be addressed?

Delay in the Children’s Court

5.94 As discussed in Chapter 3, there has been a substantial increase in the number of committal stream matters in the Children’s Court following amendments to the Children, Youth and Families Act 2005 (Vic) (CYFA) which saw a growing number of serious indictable offences uplifted from the Children’s Court to the higher courts.^[129] For example, nine committal stream cases were initiated in 2014–15, whereas 45 committal stream cases were initiated in 2018–19.^[130]

5.95 Delay may also occur when an uplifted matter is transferred back to the Children’s Court for determination—for example, if resolution is achieved on the basis of downgraded charges that can be determined summarily.^[131]

Question

20 Do committal proceedings contribute to inappropriate delay in the Children’s Court?

Implications of reforming pre-trial procedure

5.96 Reforming pre-trial procedure will have wider impacts throughout the criminal justice system. The Commission’s Terms of Reference require it to address these systemic issues, including what financial or other resources may be necessary to ensure the successful implementation and operation of any reform proposals.

Wider impacts of reforming the pre-trial system

5.97 Queensland’s Moynihan Review emphasised the importance of considering the wider impacts of reform initiatives. This Review pointed out that in Western Australia:

One of the unintended consequences of abolishing the committal hearing has been the inadvertent elimination of opportunities for discussion and negotiation between the prosecution and defence. This has led to the need for more intensive judicial supervision in the District Court before there is a plea or a trial.^[132]

5.98 As well as focusing on the need to consider all potential consequences flowing from reforms, the Moynihan Review highlighted that local legal and political cultures are likely to influence the success or failure of reform efforts.^[133]

5.99 Successful reform requires a coordinated effort from all involved in the criminal justice system. This approach was taken in Victoria in the early 1990s in relation to the issue of late guilty pleas. An inquiry considered ways to reduce delay in criminal proceedings and concluded that late guilty pleas were a ‘fundamental’ contributor to delay,^[134] and that encouraging earlier pleas would require ‘a fairly dramatic attitudinal change on the part of all those involved in the [criminal justice] system pre-committal’.^[135]

5.100 Victoria Legal Aid and the DPP were responsive to this, and moved to ensure the availability of both duty lawyers and lawyers from the OPP at committal mentions in order to conduct negotiations. The result was that a greater proportion of guilty pleas began to be entered earlier in proceedings.^[136] While late guilty pleas remain an issue, their instance in Victoria was greater a few decades ago.^[137]

5.101 In its discussion of delay in the criminal justice system, the RCIRCSA also pointed out the ‘significant and complex interactions’ between issues and reform options, as well as their funding implications.^[138] It noted that:

any significant changes [to reduce delay] will require additional resources, at least initially, not just for the courts but also for prosecution agencies and publicly funded defence services and in some cases for police. Even where reforms achieve improvements, these may require an initial additional investment, and they may lead to increased demand rather than reducing the need for resources.^[139]

Resource implications of pre-trial reform

5.102 The criminal justice system is designed to support a range of outcomes, some of which are difficult to quantify. Social benefits such as public trust in the system, or costs such as high rates of wrongful conviction, are not amenable to financial quantification. Nevertheless, it is important to assess the relative costs and benefits of reform proposals, considering—to the degree that it is possible—any likely impacts on financial and other resources.

Short and long-term resource implications

5.103 Reform may require an initial financial outlay to offset the costs of implementation, and may also have ongoing costs—for example, if it requires additional or more senior personnel, as was the case with New South Wales’ ‘Appropriate Early Guilty Plea’ reforms, discussed in Chapter 4.

5.104 Although implementing reforms may be initially costly, the end result may be improved affordability. In the New South Wales example, if the early involvement of senior lawyers successfully reduces the proportion of late guilty pleas, it is likely this will reduce overall costs, given the time and resources spent on preparing matters for trial.

Legal aid

5.105 Around 80 per cent of people who face criminal trial in Victoria have their case funded by Victoria Legal Aid (VLA).^[140] In 2014, the cost of funding these cases was approximately $33.2 million per year.^[141]

5.106 As was recognised in New South Wales, funding to implement and support the ongoing costs of any reforms must be directed to all relevant agencies, including VLA.

The cost of hearing cases in different courts

5.107 A consideration in relation to the most appropriate forum for pre-trial and committal procedures is the different cost structures applicable within the court hierarchy.

5.108 In 2008, PricewaterhouseCoopers looked at the indicative costs for an hour of court time.^[142] The costs include provision for the magistrate or judge’s time, a court registrar, prosecution and defence counsel (where funded by VLA), and the notional rent of court space. They do not include the defendant’s and witnesses’ time, travel expenses, and other court administration costs and overheads.^[143]

Table 17: Costs for an hour of court time, 2008^[144]

5.109 While these figures are not current, they demonstrate the relative affordability of pre-trial hearings and case management conducted in the Magistrates’ Court compared with the higher courts. It cannot be said based on this information, however, that conducting committal and other pre-trial procedures in the Magistrates’ Court is more cost-effective than moving some of these procedures into the jurisdiction of a higher court.

5.110 What is ultimately most cost-effective will depend on the relative contribution the courts at each level make towards:

• achieving appropriate early guilty pleas

• where cases are likely to proceed to trial, effective disposition of pre-trial matters such as narrowing the issues that are in dispute, and making rulings on the admissibility of evidence to be relied on at trial

• eliminating unnecessary duplication between the Magistrates’ Court and the trial court.

Question

21 What are the resource implications of any proposed reforms to committal or pre-trial proceedings?

Reform models

5.111 This section provides an overview of two reform models previously proposed in Victoria, highlighting salient features for the purposes of comparison.

5.112 The models are:

• ‘Proposed reforms to reduce further trauma to victims and witnesses’, Director of Public Prosecutions (DPP model)^[145]

• ‘Flexible early case management’, proposed in 2017 by the Supreme Court of Victoria (SCV 2017 model).^[146] See Appendix C.

Aims of reform proposals

5.113 The DPP model focuses on limiting the negative effects of criminal proceedings on victims and witnesses. It creates a presumption against victims and witnesses having to give evidence twice in a proceeding and replaces the committal determination with case management.^[147]

5.114 Changes and aims in the DPP model include:

• abolishing the culture of cross-examining witnesses twice during a criminal proceeding

• simplifying the committal process by removing the test for committal

• requiring the prosecution to give an indication before committal to trial of which charges it considers have reasonable prospects of conviction and are likely to appear on an indictment

• requiring police to provide a more complete brief of evidence

• providing for the fast-tracking of certain criminal cases into the trial courts

• delivering quicker outcomes, reducing trauma experienced by victims and delivering fair and efficient justice.^[148]

5.115 The Supreme Court made its proposal in 2017 to allow it to trial a process of end to end case management with minimal changes to the existing legislative framework. The Court has since indicated it welcomes consideration of a broader range of options.

5.116 The SCV 2017 model is premised on the benefits that flow from reducing delay:

• time spent by the accused on remand is minimised

• events are fresher in the minds of witnesses and the quality of their evidence is not diminished by delay

• the experience of victims is substantially improved

• access to rehabilitative programs is brought about sooner for those accused who are convicted and sentenced.^[149]

Reform model features

Filing charges

5.117 The DPP model retains a filing hearing in which a magistrate can give directions for:

• service of the hand-up brief

• the date of the issues hearing.^[150]

5.118 In the SCV 2017 model, charges are either:

• filed in the Magistrates’ Court and then uplifted to the Supreme Court on request of a party or by the Supreme Court’s own motion

• filed directly in the Supreme Court with the Court’s leave.^[151]

Disclosure

5.119 Under the DPP model, the requirements relating to service of the hand-up-brief remain unchanged. The hand-up-brief should reflect full disclosure and contain all material then in existence regarding the matter, including police notes and criminal records of witnesses.^[152]

5.120 The prosecution will be required to comply with its legal obligations for disclosure at all times following service of the hand-up-brief, meaning that relevant material must be provided once it becomes available.^[153]

5.121 Magistrates can order ‘directed disclosure’ so that particular material is disclosed by a certain date.^[154] Disclosure dates should be set well in advance of a hearing in order to facilitate resolution discussions.^[155]

5.122 The SCV 2017 model proposes handing to the Supreme Court management of the initial disclosure process.^[156]

Pre-trial case management

5.123 The DPP model proposes that the Magistrates’ Court conduct an Issues Hearing and a Case Management hearing:

• at the Issues Hearing the Court will ensure the prosecution case is properly disclosed and the parties engage in resolution discussions

• at the Case Management Hearing cross-examination of witnesses is permitted where leave has been obtained.^[157]

5.124 The SCV 2017 model proposes that once uplifted, matters in the Supreme Court would be managed under the CPA with the Supreme Court being able to exercise the same powers as the Magistrates’ Court relating to committal proceedings as well as those of the Supreme Court in relation to pre-trial management and, where necessary, the determination of preliminary legal issues.^[158]

Cross-examination of witnesses

5.125 The DPP model contains a presumption that victims and witnesses will not be cross-examined prior to trial. Leave to cross-examine may be given subject to the following:

• there will be no cross-examination in any circumstance of a complainant in a sexual offence or family violence matter

• no cross examination of a ‘vulnerable witness’

• a magistrate is only able to grant leave for cross-examination on discrete issues if satisfied there are substantial reasons, in the interests of justice, the witness should give oral evidence.^[159]

5.126 The ‘interests of justice’ include where the cross-examination of a witness is central to the resolution discussions or likely to inform what charges are included on an indictment. For the purposes of this model, testing the credibility of a witness is not a substantial reason.^[160]

5.127 The SCV 2017 model proposes no change to the current test for cross-examination of witnesses.

Test for committal

5.128 The DPP model abolishes the committal determination and replaces the committal hearing with a case management hearing.^[161] If a case is not resolved at the case management hearing it will be sent to the trial court for an initial directions hearing where directions can be made about issues such as service of the indictment, time-tabling of the trial and setting of the trial date.^[162]

5.129 The DPP suggests that abolishing the magistrate’s committal decision is a natural progression following introduction of the independent Office of the DPP.^[163] Additionally, the DPP claims more matters are withdrawn as a consequence of application by the prosecution of a higher standard to assess sufficiency of evidence by comparison with the Magistrates’ Court.^[164]

5.130 The SCV 2017 model proposes uplifting the decision to commit to the Supreme Court where the case has been uplifted to its jurisdiction.^[165]

1. See Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017); Royal Commission into Family Violence (Parliamentary Paper No 132, 2014-16); Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report 34, August, 2016).

   ↑

2. See, eg, Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report 34, August, 2016).

   ↑

3. See Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 325 and ch 8 more generally.

   ↑

4. Ibid 11, 76.

   ↑

5. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report 34, August, 2016) xx [58].

   ↑

6. See Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 11, 76. This recognition has developed over several decades: victims’ compensation schemes were progressively introduced in Australian jurisdictions from 1967; in the 1990s, there was an increased focus on support services for victims; victim impact statements were introduced; and Director of Public Prosecution Director’s Guidelines now require prosecutors to consult with victims.

   ↑

7. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report 34, August, 2016) vi. The Commission’s discussion of these principles focuses on victims, but with appropriate limitations the principles apply to other witnesses.

   ↑

8. See Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 340–1 [8.4.4].

   ↑

9. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Parts VII–X and Appendices (Final Report, 2017) 250.

   ↑

10. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 280.

    ↑

11. Western Australia Law Reform Commission, Review of the Criminal and Civil Justice System (Report No 92, 1999) 4 [1.4], 5 [1.9]. The discussion in these sections focuses on civil litigation but applies equally to the criminal justice system, as it makes clear generally in its report.

    ↑

12. International Consortium for Court Excellence, Global Measures of Court Performance (2018) 49.

    ↑

13. Department of Justice and Attorney-General, Queensland Government, Reform of the Committal Proceedings Process (Discussion Paper 2008) 6–7.

    ↑

14. Justices Act 1886 (Qld) ss 83A, 110A–110C.

    ↑

15. 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).

    ↑

16. Ibid.

    ↑

17. Ibid.

    ↑

18. See the discussion in Barton v The Queen (1980) 147 CLR 75, 99–101.

    ↑

19. Liberty Victoria Submission to Victorian Department of Justice & Regulation, ‘Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims, Criminal Law Review’ (14 June 2017).

    ↑

20. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25.

    ↑

21. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a); Criminal Procedure Act 2009 (Vic) s 97(d)(i).

    ↑

22. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(b); Criminal Procedure Act 2009 (Vic) s 97(d)(iii).

    ↑

23. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(g); Criminal Procedure Act 2009 (Vic) s 97(d)(ii).

    ↑

24. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c).

    ↑

25. Ibid ss 25(2)(d)–(f).

    ↑

26. See the section titled ‘Access to legal aid’ in Chapter 3.

    ↑

27. This is discussed further in the section below titled ‘Delay’.

    ↑

28. See New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014) pp 194–5.

    ↑

29. See Victoria Police, Victoria Police Manual (at 18 April 2019).

    ↑

30. Director of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria (27 March 2019)
    
    <http://www.opp.vic.gov.au/getattachment/b5d48af4-3bef-4650-84fa-6b9befc776e0/DPP-Policy.aspx>.

    ↑

31. For further discussion, see Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 139–40 [3.9.2].

    ↑

32. In this context, ‘consolidation’ occurs where multiple individual charges in a case are merged into one or more charges covering the entirety of the criminal offending.

    ↑

33. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 280.

    ↑

34. Ibid ch 4. See also Office of Public Prosecutions Victoria, Annual Report 2017–18, 12.

    ↑

35. Director of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 16–17 [5–10]
    
    <http://www.opp.vic.gov.au/getattachment/b5d48af4-3bef-4650-84fa-6b9befc776e0/DPP-Policy.aspx>.

    ↑

36. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Preface and Executive Summary (2017) 198.

    ↑

37. Ibid 207.

    ↑

38. Ibid.

    ↑

39. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Preface and Executive Summary (2017) 207.

    ↑

40. Standing Committee of Attorneys-General, Report of the Deliberative Forum on Criminal Trial Reform (June 2000).

    ↑

41. Ibid 15.

    ↑

42. Ibid 16.

    ↑

43. Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (Judiciary of England and Wales, January 2015).

    ↑

44. Ibid 21 [63].

    ↑

45. Director of Public Prosecutions England and Wales, ‘The Code for Crown Prosecutors’ (Web Page, 26 October 2018) [3.1]
    
    <https://www.cps.gov.uk/publication/code-crown-prosecutors>.

    ↑

46. Criminal Procedure Act 1986 (NSW) div 3 pt 2.

    ↑

47. 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.

    ↑

48. Criminal Procedure Act 1986 (NSW) s 66.

    ↑

49. Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Report, 2008) 85.

    ↑

50. David Plater and Lucy De Vreeze, ‘Is the ‘Golden Rule’ of Full Prosecution Disclosure a Modern ‘Mission Impossible’?’ (2012) 14 Flinders Law Journal 133, 140.

    ↑

51. Ragg v Magistrates’ Court of Victoria and Corcoris (2008) 18 VR 300, 310, 315.

    ↑

52. David Plater and Lucy De Vreeze, ‘Is the ‘Golden Rule’ of Full Prosecution Disclosure a Modern ‘Mission Impossible’?’ (2012) 14 Flinders Law Journal 133, 136.

    ↑

53. Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Report, 2008) 86.

    ↑

54. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 197–8.

    ↑

55. Liberty Victoria Submission to Victorian Department of Justice & Regulation, ‘Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims, Criminal Law Review’ (14 June 2017).

    ↑

56. Ibid.

    ↑

57. This applies even if the material is in the hands of members of the police who were not themselves involved in the initial investigation and who did not relay the relevant material to the original informant: R v Farquharson (2009) 26 VR 410, 464.

    ↑

58. R v Farquharson (2009) 26 VR 410, 464.

    ↑

59. Criminal Procedure Act 1986 (NSW) s 15A.

    ↑

60. Director of Public Prosecution Act 1986 (NSW) s 15A. Disclosure certificates are discussed in more detail in the section titled ‘Disclosure obligations’ in Chapter 4.

    ↑

61. 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.

    ↑

62. David Plater and Lucy De Vreeze, ‘Is the ‘Golden Rule’ of Full Prosecution Disclosure a Modern ‘Mission Impossible’?’ (2012) 14 Flinders Law Journal 133, 136; Victoria Director of Public Prosecutions, Annual Report 2016–17 (2017) 12.

    ↑

63. Director of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) [14]
    
    <http://www.opp.vic.gov.au/getattachment/b5d48af4-3bef-4650-84fa-6b9befc776e0/DPP-Policy.aspx>.

    ↑

64. David Plater and Lucy De Vreeze, ‘Is the ‘Golden Rule’ of Full Prosecution Disclosure a Modern ‘Mission Impossible’?’ (2012) 14 Flinders Law Journal 133, 145.

    ↑

65. Ibid 139.

    ↑

66. Ibid 145.

    ↑

67. Robert Richter QC, ‘Committal Hearings’ (Speech, Saturday Criminal Law Conference, 23 March 2019) 7.

    ↑

68. This is discussed further below in the section titled ‘Pre-trial witness examination’.

    ↑

69. Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Research and Public Policy Series, No 74, Australian Institute of Criminology, 2007) 43; Arie Freiberg, ‘Managerialism in Australian Criminal Justice: RIP for KPIs?’ (2005) 31(1) Monash University Law Review 12, 28.

    ↑

70. Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Research and Public Policy Series, No 74, Australian Institute of Criminology, 2007) 43–44.

    ↑

71. Ibid 44.

    ↑

72. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 10.

    ↑

73. See the section titled ‘Pre-trial witness examination’ in Chapter 3.

    ↑

74. Liberty Victoria Submission to Victorian Department of Justice & Regulation, ‘Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims, Criminal Law Review’ (14 June 2017).

    ↑

75. John Coldrey QC, ‘Committal Proceedings: the Victorian Perspective’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1-2 May 1990) 4.

    ↑

76. Ibid 4–5.

    ↑

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

    ↑

78. Ibid.

    ↑

79. Ibid Rec 37.

    ↑

80. Ibid Rec 39.

    ↑

81. See section titled ‘Pre-trial witness examination’ in Chapter 4.

    ↑

82. Criminal Procedure Act 2004 (WA) Sch 3, cl 5(2)–(3).

    ↑

83. Northern Territory Law Reform Commission, Report on Committals (Report No 34, September 2009) 3–4. See also New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 194.

    ↑

84. Department of Justice and Attorney-General, Queensland Government, Reform of the Committal Proceedings Process (Discussion Paper, undated [2007]) 5. See also John Coldrey QC, ‘Committal Proceedings: the Victorian Perspective’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1-2 May 1990) 194–5; Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) 6 <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx>; New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014); John Johnson, ‘A Case for Abolition’ (Conference Paper, Australian Institute of Criminology, The Future of Committals, 1–2 May 1990) 94.

    ↑

85. Director of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 2(1) <https//www.opp.vic.gov.au/Resources/Policies>.

    ↑

86. Sixty five out of a total of 5,947 completed committal matters handled by the NSW DPP were discharged by the magistrate: New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014) 177, 182.

    ↑

87. Office of Public Prosecutions Victoria, Response to the VLRC Request for Statistics, Victorian Law Reform Commission Committals Reference (24 April 2019).

    ↑

88. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 177.

    ↑

89. Ibid 195.

    ↑

90. Ibid.

    ↑

91. Office of Public Prosecutions Victoria, Response to the VLRC Request for Statistics, Victorian Law Reform Commission Committals Reference (24 April 2019).

    ↑

92. Victoria Director of Public Prosecutions, Annual Report 2017–18 (2018) 1, 12.

    ↑

93. Sentencing Advisory Council Victoria, Sentence Indication: A Report on the Pilot Scheme (February 2010) 2 [1.11]. See also, Sentencing Advisory Council Tasmania, Statutory Sentencing Reductions for Pleas of Guilty (Final Report No 10, October 2018) vi.

    ↑

94. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 280.

    ↑

95. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 9.

    ↑

96. Asher Flynn and Arie Freiberg, Plea Negotiations, Report to the Criminology Research Advisory Council (April 2018).

    ↑

97. Ibid 1.

    ↑

98. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014) 9–10.

    ↑

99. Jason Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes (Research and Public Policy Series, No 74, Australian Institute of Criminology, 2007) 45–6.

    ↑

100. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 11.

     ↑

101. See the section titled ‘Guilty pleas’ in Chapter 4.

     ↑

102. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September, 2016) 280. See also the discussion above under the heading ‘Charging practices and the decision to prosecute’.

     ↑

103. Ed Johnston and Tom Smith, ‘The Early Guilty Plea Scheme and the Rising Wave of Managerialism’, University of the West of England Research Repository (E-print, Undated) 2 <http://eprints.uwe.ac.uk/31457/3/The%20Early%20Guilty%20Plea%20Scheme%20and%20the%20Rising%20Wave%20of%20Managerialism%20FINAL.pdf>. The sentencing discount scheme is described in Chapter 4.

     ↑

104. Asher Flynn and Arie Freiberg, Plea Negotiations, Report to the Criminology Research Advisory Council (April 2018) xiii.

     ↑

105. Sentencing Advisory Council Tasmania, Statutory Sentencing Reductions for Pleas of Guilty (Final Report No 10, October 2018) vi.

     ↑

106. Ibid vi.

     ↑

107. Ibid vi.

     ↑

108. Asher Flynn and Arie Freiberg, Plea Negotiations, Report to the Criminology Research Advisory Council (April 2018) xii.

     ↑

109. 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) 18.

     ↑

110. Magistrates’ Court of Victoria, Committal Data Requested by the VLRC (24 April 2019). See also Table 6 in Chapter 3.

     ↑

111. Ibid. See also ‘Court events and case management’ in Chapter 3.

     ↑

112. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (December 2014) 46 [3.31].

     ↑

113. Victorian Department of Justice and Regulation, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 9.

     ↑

114. Ibid.

     ↑

115. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 10.

     ↑

116. Ibid 9–10.

     ↑

117. Or from the date on which a case that commenced in the summary stream was transferred to the committal stream: Magistrates’ Court of Victoria, Committal Data Requested by the VLRC (24 April 2019).

     ↑

118. Ibid. This does not include data relating to committal hearings for sexual offence cases, which took a median of 193 days.

     ↑

119. Ibid.

     ↑

120. 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).

     ↑

121. Ibid.

     ↑

122. Office of Public Prosecutions Victoria, Response to the VLRC Request for Statistics, Victorian Law Reform Commission Committals Reference (24 April 2019) 1.

     ↑

123. Victoria Director of Public Prosecutions, Annual Report 2016–17 (2017) 1.

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124. Victoria Director of Public Prosecutions, Annual Report 2017–18 (2018) 1.

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125. Australian Productivity Commission, Report on Government Services (2018) pt C, Ch 7, Table 7A.19. See Tables 14, 15 and 16 in the section titled ‘Delay’ in Chapter 4.

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126. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September 2016) 340–1.

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127. Ibid 253.

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128. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Preface and Executive Summary (2017) 215.

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129. See section titled ‘Committal proceedings in the Children’s Court’ in Chapter 3.

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130. Response to Request for Children’s Court Data, Email from Children’s Court of Victoria to Victorian Law Reform Commission, 16 May 2019.

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131. Criminal Procedure Act 2009 (Vic) ss 168, 168A.

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132. Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Report, 2008) 181.

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133. Ibid 166.

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134. Ann-Louise Boag, ‘Legal Aid and its Role in the Reduction of Delays in Criminal Proceedings in Victoria’ in David Biles and Sandra McKillop (eds) Proceedings of the Criminal Justice Planning and Coordination Conference (Australian Institute of Criminology, April 1993) 228.

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135. Ibid 229.

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136. Ibid 228–9.

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137. Sentencing Advisory Council, Victoria, Guilty Pleas in the Higher Courts: Rates, Timing and Discounts (August 2015) xvi.

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138. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) 263.

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139. Ibid 266.

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140. Victoria Legal Aid, Delivering High Quality Criminal Trials (Consultation and Options Paper, January 2014) 4.

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141. Ibid 6.

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142. PriceWaterhouseCoopers, Review of Fees Paid by Victoria Legal Aid to Barristers in Criminal Cases (Victorian Bar Report, April 2008) 24.

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143. Ibid.

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144. PriceWaterhouseCoopers, Review of Fees Paid by Victoria Legal Aid to Barristers in Criminal Cases (Victorian Bar Report, April 2008) 24.

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145. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx>.

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146. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 9–13.

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147. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx> 1.

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148. Ibid.

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149. Ibid 9–14.

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150. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx>.

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151. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 11.

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152. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx> 2.

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153. Ibid 3.

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154. Ibid 4.

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155. Ibid 4.

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156. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 11–12.

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157. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx>.

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158. Director of Public Prosecutions Victoria, Proposed Reforms to Reduce Further Trauma to Victims and Witnesses (Policy Paper, 1 October 2018) <http://www.opp.vic.gov.au/getattachment/0da88912-0a57-48f0-9048-31a0ad1b15df/DPP-Policy-Paper-Proposed-reforms-to-reduce-furthe.aspx> 12.

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159. Ibid 5.

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160. Ibid.

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161. Ibid 2.

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162. Ibid 4.

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163. Ibid 6.

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164. Ibid 6–7.

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165. Department of Justice and Regulation, Victorian Government, Proposed Reforms to Criminal Procedure: Reducing Trauma and Delay for Witnesses and Victims – Criminal Law Review (Discussion Paper, 2017) 11.

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