Committals: Report (html)

4. The test for committal

Introduction

4.1 This chapter analyses the role of magistrates in reviewing the evidence to decide if the accused should be committed for trial in a higher court. Although this decision is referred to in the Criminal Procedure Act 2009 (Vic) (CPA) as the ‘committal determination’,^[279] in this discussion the widely recognised phrase ‘committal test’ or ‘test for committal’ is used instead.^[280]

4.2 The chapter begins by describing the current test for committal and how it has been interpreted by the courts, and the process involved in its application. It provides an overview of the ongoing debate about whether the test operates as an effective filter, before surveying stakeholders’ arguments in support of retaining the test and those in support of abolishing it.

4.3 The Commission concludes that the test for committal should be abolished and cases transferred from the jurisdiction of the lower courts by a magistrate making an order that the accused appear in a higher court for trial or sentence. Magistrates will no longer be required to apply a test for committal based on the evidence in a case. Instead of this, the accused should be able to apply for a discharge and the lower courts empowered to discharge the accused if the Court is satisfied that there is no reasonable prospect of conviction.

4.4 An outcome of the proposed change is that the language of committal will no longer play a role or be necessary. In place of the present test for committal, a case would move from a lower court to a higher court by an order of the lower court that the accused:

• appear for plea and sentence in a higher court on a date to be determined, or

• stand trial in a higher court on a date to be determined.

The current test for committal

4.5 Before committing the accused to a higher court for trial or sentence, a magistrate must determine if the available evidence is of sufficient weight to support a conviction for an indictable offence.^[281] This involves assessing whether a reasonable jury could convict the accused on the evidence available.^[282]

4.6 The current test for committal was adopted in 1987, replacing an earlier test that required an assessment of whether the evidence was of sufficient weight ‘to put the accused on trial’.^[283] The earlier test had been interpreted as requiring the prosecution to establish a prima facie case.^[284] It was characterised by a committee led by Victoria’s then Director of Public Prosecutions (DPP), John Coldrey QC, as an insufficient filter for ‘unwarranted prosecutions.’^[285] Its replacement was recommended by the same committee and described by Coldrey as a stronger test that has ‘the virtue of simplicity’, while also ensuring a magistrate’s decision to commit is not perceived as ‘pre-empting the ultimate jury verdict.’^[286]

4.7 The current test requires a magistrate to take the prosecution case at its highest.^[287] A magistrate ‘need not consider whether a jury should or would be satisfied beyond reasonable doubt, but merely whether a jury could be so satisfied’.^[288] A magistrate is expected ‘to sift the wheat from the chaff’, distinguishing between ‘cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could’.^[289]

4.8 If the Magistrates’ Court determines the evidence is not of sufficient weight to support a conviction for any indictable offence, it must discharge the accused.^[290]

4.9 If the Court determines the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, it must commit the accused for trial.^[291]

4.10 If the Court determines the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, it may adjourn the committal proceeding to allow the informant to file a charge sheet in respect of that other offence and

• if the charge sheet is filed, must commit the accused for trial,^[292] or

• if the informant does not file a charge sheet for the other offence within the period of adjournment, must discharge the accused.^[293]

4.11 The power to commit an accused person for trial or sentence in a higher court is administrative rather than judicial. Committal to stand trial does not prejudge the question of the accused’s guilt or innocence, which is for a jury to decide.^[294]

Is the committal test an effective filter?

4.12 Requiring that a magistrate assess the evidence in a case before committing an accused for trial was originally justified as a way to protect citizens ‘from being prosecuted on inadequate evidence, by filtering out … unmeritorious cases’.^[295]

4.13 The threshold for committal is relatively low, even after the test was strengthened in Victoria in 1987. Although discharge rates initially increased following the introduction of the new test, from around four per cent of indictable matters in 1984 to around 10 per cent in 1989–1990,^[296] they have since dropped to between one and two per cent in Victoria per year.^[297]

4.14 The decline in discharge rates may reflect a more careful attitude to charging on the part of the prosecution, fostered by the desire to avoid having a matter discharged at committal. Another factor that may have influenced the decline of discharge rates after 1990 is the adoption by DPPs across Australia in 1989–90 of uniform guidelines for the exercise of the prosecutorial discretion.^[298] This is unlikely to have had a significant influence, however, given the DPP in Victoria does not generally take an active role in charge review until after committal.^[299] Another explanation for the decline might be that magistrates do not apply the test with consistent rigour but tend to commit the accused as a matter of course.

4.15 In any event, doubts persist about the contribution the committal test makes to ensuring manifestly weak cases are not pursued to trial.^[300] For example, in 2007 the Australian Institute of Criminology questioned:

the efficacy of the committal procedure to ensure that sufficient evidence exist[s] to proceed with the prosecution as many deficiencies in evidence are not identified until well after the committal process.^[301]

4.16 The accused is acquitted in roughly 30 per cent of cases that go to trial in the County Court.^[302] This suggests that the role played by the test as a filter for cases with insufficient evidence to convict the accused could be improved.

4.17 Another source of doubt about the value of the committal test as a filter for unmeritorious charges is the DPP’s power to directly indict even if a magistrate has discharged the charges.^[303] In 2017–18, the DPP filed a direct indictment in 19 cases.^[304]

Of these, seven were filed following discharge of one or more charges by a magistrate.^[305] In 2018–19, the DPP filed a direct indictment in 15 cases, five following discharge of one or more charges by a magistrate.^[306]

4.18 Reform bodies and commentators argue that the professionalisation of modern policing and the creation of independent public prosecutors removes the need for the committal test.^[307] The underlying assumption of this argument is that criminal prosecutions will not be pursued where there is insufficient evidence; to advance biased or political agendas; or for malicious or vindictive purposes.

4.19 While this assumption should be treated with caution, the test for committal does not appear to be operating effectively as a filter for prosecutions founded on insufficient evidence.

Abolishing the test for committal in other jurisdictions

4.20 The committal test has been abolished in England and Wales, and in Australia in Tasmania, Western Australia, and most recently, in New South Wales.

4.21 In 1999, the Law Reform Commission of Western Australia recommended abolishing preliminary hearings, Western Australia’s equivalent of committal proceedings. The Commission considered that the DPP’s power to directly indict, regardless of the outcome of the test for committal, meant the role of the determination as a mechanism for screening charges was virtually redundant. The Commission did, however, recommend that a power should be conferred on the courts to examine and, where appropriate, penalise late decisions to withdraw or alter indictments.^[308] This recommendation was adopted and became law in 2002.^[309]

4.22 In 2014, the New South Wales Law Reform Commission noted that magistrates in New South Wales discharged only around one per cent of cases.^[310] It posited that abolishing the test for committal would not lead to an increase in unsubstantiated matters proceeding, provided that court supervised case management operated to ‘ensure the prosecution gives timely consideration to the charges.’^[311] The test for committal was abolished as part of the wider package of reforms introduced in New South Wales in 2018.

4.23 The effects of abolishing the test in Western Australia, New South Wales, and elsewhere are unclear. While delay continues to be a problem in the New South Wales Local Court, this has been attributed to the new charge certificate requirement and failure by New South Wales Police to provide adequate disclosure to the New South Wales DPP.^[312] It is impossible to quantify the time saved by dispensing with the test. Nor is evidence available to show whether unmeritorious prosecutions are proceeding to trial because the test is no longer applied. The experience of other jurisdictions such as Western Australia and the United Kingdom suggests that disclosure failures may be a greater contributor to trials being adjourned or aborted than the absence of the test in the lower courts.^[313] Again, the Commission does not have reliable data on wrongful convictions and their causes in these jurisdictions.

Stakeholder support for retaining the committal test

4.24 Stakeholders who support retaining the test for committal include the Magistrates’ Court, some County Court judges, Victoria Legal Aid, the Victorian Aboriginal Legal Service, the Criminal Bar Association (Victoria), and Australian Lawyers for Human Rights.^[314]

4.25 These stakeholders emphasise the contribution that application of the test for committal makes to fair trial rights. They argue it is an effective inducement for the prosecution to review its case at an early stage in proceedings. They also highlight the benefits for the small number of accused people whose cases are discharged and who would otherwise have had to endure the stress and anxiety of a trial, often while remanded in custody.

4.26 Other benefits attributed to the committal test include encouraging an accused person to enter an early guilty plea where there is strong evidence in support of the charges.

4.27 The Criminal Bar Association (Victoria) told the Commission there is little apparent reason for abolishing the test ‘Other than the fact that it has been removed in other jurisdictions (without any clear assessment of the impact)’.^[315] In favour of retaining the committal determination, the Criminal Bar Association submitted:

the possibility of discharge in open court, and the risk of costs being awarded against the police, is … a real incentive for the DPP to be in a position to properly consider the charge in advance of a committal hearing. It is common for the prosecution on the day of the hearing to substantially revise charges and add or withdraw charges against an accused.^[316]

4.28 The Criminal Bar Association also pointed to the application of the committal test as a ‘powerful indicator to the accused’ regarding the strength of the case either for the prosecution or the defence.^[317]

4.29 The Law Institute of Victoria suggested:

The prospect of a discharge and the risk of an award of costs provides the prosecution with a substantial incentive to review the case and to decide whether to amend the charges or consider resolution in the summary jurisdiction.^[318]

4.30 The Victorian Aboriginal Legal Service argued:

3.7% of cases that went to a committal hearing in 2017–2018 resulted in either charges being withdrawn or discharged by the Magistrate. Whilst this is a small percentage of the overall number of matters, it represents 89 matters where the accused rightly avoided trial, and where the cost implications of proceeding with the trial in a higher court were avoided.^[319]

4.31 Victoria Legal Aid claimed that:

independent scrutiny of the prosecution case by a judicial officer is an essential component of a fair system. Scrutiny of the case and the ability to hold parties to account is as relevant at the pre-trial stage as during trial proceedings.

Furthermore, now that Prasad directions have been held to be contrary to law, committal proceedings are one of the last independent protections against prosecuting misconceived or weak cases.^[320]

4.32 Australian Lawyers for Human Rights endorsed the view, put by the Law Society of NSW in 2014, that:

the committal decision provides transparency and impartiality that could not be achieved if the OPP were given sole responsibility for filtering out weak prosecutions.^[321]

4.33 County Court judges who support retaining the committal test view it as bolstering fair trial rights and holding both parties to criminal prosecutions to account. These judges suggested that:

Removing a magistrate’s assessment of the strength of the prosecution case takes away a critical opportunity for the parties to be exposed to an impartial and independent view of the case.^[322]

4.34 The Magistrates’ Court told the Commission: ‘There is no downside to allowing the evidence to be the subject of independent scrutiny by a judicial officer when [a] safety net, if needed exists in the form of a direct presentment’.^[323] The Court suggested that the committal test operates as a mechanism for ensuring charges are appropriate. It cited anecdotal evidence from practitioners and barristers that ‘the DPP is reluctant to exercise its power to discontinue prosecutions on an assessment of the likely prospects of conviction but rather tends to let matters go to trial’.^[324] It pointed out that:

[It] does not further the interests of witnesses or accused if the prosecution persevere with charges that are later abandoned or which result in a verdict of acquittal at trial. Nor does it enhance the expeditious and timely administration of the criminal justice system.^[325]

4.35 According to the Magistrates’ Court:

What does influence the DPP is the prospect that a matter may be discharged at committal with consequent cost orders. Thus, at contested committal the DPP may often propose the withdrawal of charges but invariably with an attached condition that defence do not apply for costs.^[326]

Stakeholder support for abolishing the committal test

4.36 Stakeholders who argue the test for committal should be abolished include the Supreme Court, some County Court judges, the DPP, Victoria Police, and the Victims of Crime Commissioner.^[327] These stakeholders suggest the test for committal is now redundant and that fair trial rights are adequately protected by alternative mechanisms. They say application of the test contributes to unnecessary duplication and delay.

4.37 The Victims of Crime Commissioner submitted:

such a small proportion of matters are discharged by magistrates at the committal stage that this original [filtering] purpose alone cannot be a valid rationale for the continuation of this procedure.^[328]

4.38 Those judges of the County Court who argued the committal test should be abolished claimed its role in filtering weak cases had been surpassed:

The current bifurcated approach [to indictable prosecutions] is no longer necessary in the context of an independent DPP and where charges can be appropriately filtered by increased interaction between prosecutors and Victoria Police.^[329]

4.39 These judges also pointed out that the Magistrates’ Court when applying the test and the trial court subsequently must both familiarise themselves with the case, ‘resulting in a duplication of effort.’^[330]

4.40 The Supreme Court similarly argued that removing the test for committal would avoid duplication and allow for more integrated case management, which would be capable of ‘adapt[ing] readily to the needs of individual cases.’^[331]

4.41 Victoria Police viewed the test for committal as unnecessarily duplicating the functions of the DPP, which ‘already makes a decision as to the sufficiency of the evidence in deciding whether to pursue charges.’^[332]

4.42 According to the DPP, abolishing the test for committal will make indictable proceedings less complex and ‘will also remove confusion about the significance of a magistrate’s committal decision’.^[333] As noted earlier, a magistrate’s decision to commit is an administrative rather than judicial finding.

4.43 The DPP suggested that the power of the court to stay a proceeding ‘including a direct indictment, even at a very early stage,’^[334] removed the need for the committal test to ensure fair trial rights. The DPP added that the power to stay proceedings ‘is in addition to the many safeguards that exist during a trial proceeding.’^[335] The implication is that the power of the trial court to issue a stay can appropriately substitute for the committal test’s role filtering cases with insufficient evidence to support a conviction.

4.44 The Victorian Court of Appeal said recently that:

the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances, and only in circumstances where there is a fundamental defect confronting the trial such that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences.^[336]

4.45 While it is true that an application for a permanent stay may be made at an early stage in proceedings—and generally before the prosecution leads any evidence in a trial—this is because the merits of the application will usually be based on facts that are independent of the evidence supporting the Crown case.^[337]

4.46 By comparison, the test for committal specifically involves assessing the sufficiency of the evidence to support the charges.

Commission’s conclusions: Abolish the test for committal

4.47 For a magistrate to consider the evidence in a case requires time and effort, even if some magistrates tend to commit the accused as a matter of course. In complex cases the time required may be considerable. In Forsyth v Rodda, the Full Court of the Federal Court quoted the committing magistrate’s reasons in which he referred to having spent ‘many hours’ analysing the evidence.^[338] After detailed consideration of the magistrate’s reasons, the Federal Court concluded that:

Not only did [the committing magistrate] weigh the evidence; he was at pains to weight it most carefully and anxiously before reaching his conclusion.^[339]

4.48 Forsyth v Rodda demonstrates that applying the test for committal can be a serious impost on a magistrate’s time. This impost translates to costs for the parties and the criminal justice system.

4.49 Even so, the original rationale for requiring the lower courts to assess at an early stage the strength of the evidence in indictable proceedings remains sound. When the charges are weak or misconceived, an accused should not be subjected to the stress and anxiety of a trial. It is equally important for victims and witnesses that such charges are not pursued to trial, as a decision to discontinue at a late stage, or a verdict of not guilty, will likely cause distress.^[340] The costs for the justice system of unwarranted prosecutions are also high.

4.50 Moreover, the capacity of investigating and prosecuting agencies to ensure the integrity of all prosecutions may be limited in ways that are difficult to foresee. While there has been reform over many years to enhance the independence of these agencies, the establishment of the Royal Commission into the Management of Police Informants suggests there is a need for continual vigilance.^[341]

4.51 The role of the test for committal as a filter for unwarranted prosecutions should, however, be served by alternative mechanisms that preserve the fair trial rights of the accused and are less costly in terms of time and resources.

4.52 The benefits of the committal test—providing independent scrutiny of indictable charges at an early stage and in a relatively inexpensive jurisdiction—will be better achieved by:

• providing magistrates with a new power to discharge charges, upon application by the defence, on the grounds that there is no reasonable prospect of conviction^[342]

• strengthening other case management procedures in the lower courts to ensure ongoing judicial oversight of prosecutions.

4.53 The combination of more effective case management and the availability of a discharge application will ‘create a risk that forces the OPP to consider the case’.^[343] It will ensure an accused charged on spurious grounds has an early opportunity for redress, without requiring magistrates to expend unnecessary time considering the evidence in all cases.

4.54 Active case management and the availability of a discharge application should produce other benefits commonly attributed to the committal test, including providing an indication from the bench to the accused of the strength of the evidence,^[344] promoting early guilty pleas where appropriate, and encouraging both parties to review their cases.

Recommendations

3 The test for committal, which involves a magistrate assessing if the evidence is of sufficient weight to support a conviction for an indictable offence (referred to in chapter 4, part 4.9 of the Criminal Procedure Act 2009 (Vic) as the committal determination) should be abolished.

4 In place of an order for committal, the mechanism for transfer of indictable charges from the lower courts should be an order of the Magistrates’ or Children’s Court that the accused either:

(a) appear for plea and sentence in a higher court on a date to be determined, or

(b) stand trial in a higher court on a date to be determined.

Create a test for discharge

4.55 When there appears to be no reasonable prospect of conviction, magistrates should be able to discharge indictable charges on application by the accused. This will provide a safeguard against unwarranted prosecutions.

4.56 The Commission recommends adopting a test for discharge that has a higher threshold than the current test for committal. This is meant to ensure that discharge applications are made and granted only when charges are highly unlikely to result in a finding of guilt at trial.

4.57 The proposed discharge test will require a magistrate, on application by the accused, to assess if there is a reasonable prospect of conviction, taking into account:

• all the evidence in the hand-up brief and depositions, if any

• the apparent reliability and credibility of the evidence

• any defence available on the basis of the evidence

• whether the prosecution witnesses are available, competent and compellable

• how the witnesses are likely to present in court.^[345]

4.58 If the magistrate concludes that there is no reasonable prospect of conviction, the magistrate should discharge the accused on the relevant charge or charges.

4.59 The proposed test for discharge does not pre-empt the role of the jury as the ultimate arbiter of facts if a discharge application is unsuccessful and a trial goes ahead. In many cases, juries will be unaware of whether an application for discharge was made. To the degree to which a jury may arrive at a perception of guilt based on the outcome of a discharge application or failure to make such an application, this concern applies equally to the current test for committal. The Commission is satisfied that the danger of a jury allowing the discharge test to influence its deliberations can be appropriately mitigated, in instances where it arises, by the trial judge directing the jury that the test should have no bearing on its deliberations.

4.60 The Commission proposes that applications for discharge be made by the accused following service of the hand-up brief or after cross-examination of any witnesses.

4.61 In order to apply for a discharge, the defence should be required to file a document explaining why there is no reasonable prospect of conviction. In response, the prosecution should be required to file an outline of its case, including information about witness availability and compellability; any possible reasons for doubt about the reliability and credibility of the evidence; and any insights it has about how witnesses are likely to present in court.

4.62 The magistrate should have the power to either refuse the application on the papers or hear oral submissions from the parties.

4.63 There is some risk that discharge applications will be made routinely and absorb as much court time as is currently spent applying the test for committal. This reform will require a cultural change in the legal profession. The court’s ability to refuse an application on the papers will operate as a control on groundless applications. In time, defence practitioners will come to appreciate that the test sets a high bar. Combined with early involvement of the OPP in the prosecutorial process, this means it will only be in exceptional cases that discharge applications are successful.

4.64 Consistent with its existing discretion in relation to costs orders, the Magistrates’ Court may order costs against the OPP where discharge applications are granted or against the defence if an application for discharge is refused.

4.65 A decision by the Magistrates’ Court to discharge charges would, like the current test, be characterised as administrative. It should not interfere with the DPP’s existing powers to directly indict.

Recommendation

5 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the accused may apply to the Magistrates’ or Children’s Court for an order that the accused be discharged and to empower the Magistrates’ and Children’s Courts to discharge the accused on the relevant indictable charge or charges if satisfied that there is no reasonable prospect of conviction.

279. Criminal Procedure Act 2009 (Vic) pt 4.9.

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280. To be clear, the phrase ‘committal test’ is often used expansively in this chapter to refer to the lower courts’ role in reviewing the evidence, rather than to the specific content of the test, which has changed over the years. When the content of the test is being discussed, this is obvious from the surrounding context.

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281. Criminal Procedure Act 2009 (Vic) s 141(4).

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282. Judicial College of Victoria, ‘4.4.5 Determination of Committal Proceeding’, Victorian Criminal Proceedings Manual (1 November 2019) [7].

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283. The test involved the application of two different standards of proof, but ‘the key test’ was ‘whether the evidence was “sufficient to put the accused upon trial for any indictable offence”’: David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals (Australian Institute of Criminology, January 1991) 5, 11, with reference to the Magistrates (Summary Proceedings) Act 1975 (Vic) (s 59(7)).

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284. John Coldrey, ‘Committal Proceedings: The Victorian Perspective’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 3.

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285. Ibid 3. See also Forsyth v Rodda (1988) 37 A Crim R 50, 68-69.

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286. John Coldrey, ‘Committal Proceedings: the Victorian Perspective’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 3. See also David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 8.

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287. Forsyth v Rodda (1988) 37 A Crim R 50, 68-69; Forsyth v Rodda (1989) 87 ALR 699.

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288. Thorp v Abbotto (1992) 34 FCR 366; [24] per Gummow J (with whom O’Loughlin J agreed), emphasis added.

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289. Thorp v Abbotto (1992) 34 FCR 366; [28] per Lockhart J, (with whom O’Loughlin J also agreed).

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290. Criminal Procedure Act 2009 (Vic) s 141(4)(a).

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291. Ibid s 141(4)(b).

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292. Ibid s 141(4)(c).

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293. Ibid s 141(5).

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294. Grassby v The Queen (1989) 168 CLR 1, 11-12.

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295. Bronwyn Naylor, ‘Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court’ (1990) 19 Federal Law Review 352, 353. See also John Coldrey, ‘Committal Proceedings: the Victorian Perspective’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 2; Asher Flynn, ‘A Committal Waste of Time? Reforming Victoria’s Pre-trial Process: Lessons From Other Jurisdictions’ (2013) 37 Criminal Law Journal 175, 176.

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296. David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 11. See also John Coldrey, ‘Committal Proceedings: the Victorian Perspective’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 3.

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297. According to data provided by the Magistrates’ Court, there are on average approximately 10 cases per year where a magistrate discharges all offences and another 65 cases where some charges are discharged and others are committed: Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019).

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298. Damian Bugg, ‘The Role of the DPP in the 20th Century’ (Speech, Judicial College of Australia Colloquium, 1999) 9.

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299. See the discussion in Chapter 8.

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300. There is a long tradition of questioning the efficacy of the committal determination: see David Brereton and John Willis, ‘Evaluating the Committal’ in Julia Vernon (ed), The Future of Committals (Australian Institute of Criminology, January 1991) 5, 8; Bronwyn Naylor, ‘Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court’ (1990) 19 Federal Law Review 352. In these articles the authors themselves argue the committal determination does represent an effective filter.

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

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302. County Court of Victoria, Case Data Requested by VLRC (October 2019). A much lower percentage (six per cent in 2017–18), are acquitted in the Supreme Court: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).

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303. The Director’s power applies even where charges have been discharged at committal.

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304. Office of Public Prosecutions Victoria, Response to VLRC Request for Statistics—Review of Committals (24 April 2019).

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305. Email from Office of Public Prosecutions to Victorian Law Reform Commission, 9 January 2020.

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306. Ibid.

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307. Department of Justice and Attorney-General (Qld), Reform of the Committal Proceedings Process (Discussion Paper, 2008) 5; John Coldrey, ‘Committal Proceedings: the Victorian Perspective’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 194-5; Director of Public Prosecutions, Office 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>; New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014); John Johnson, ‘A Case for Abolition’ in Julia Vernon (ed), The Future of Committals—Proceedings of a Conference Held 1-2 May 1990 (Australian Institute of Criminology, January 1991) 89, 94.

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308. Western Australia Law Reform Commission, Review of the Criminal and Civil Justice System (Report No 92, 1999) 245-6, see also recommendations 307, 308. Note that preliminary hearings were not routine procedure in Western Australia, even at the time of the WA Law Reform Commission’s report. They were available upon election by an accused person and held in only around ten per cent of indictable matters: Western Australia Law Reform Commission, Review of the Criminal and Civil Justice System (Report No 92, 1999) 245.

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309. Criminal Law (Procedure) Amendment Act 2002 (WA) ss 11, 17, inserting new ss 102-106 in the Justices Act 1902 (WA) and ss 611B–611C of the Criminal Code (WA) respectively. These provisions were largely replicated when the Criminal Procedure Act 2004 (WA) was adopted.

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310. New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) 177, 182.

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311. Ibid 195.

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312. Consultations 32 (Local Court of New South Wales), 33 (Director of Public Prosecutions (New South Wales)).

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313. In relation to the United Kingdom, see the discussion in Chapter 9, on disclosure, and in relation to Western Australia, see paragraphs 11.63–11.64.

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314. Submissions 9 (Australian Lawyers for Human Rights), 11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria), 19 (Victorian Aboriginal Legal Service), 20 (County Court of Victoria).

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315. Submission 11 (Criminal Bar Association (Victoria)).

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316. Ibid.

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317. Ibid.

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318. Submission 24 (Law Institute of Victoria).

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319. Submission 19 (Victorian Aboriginal Legal Service) 4–5.

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320. Submission 13 (Victoria Legal Aid). A Prasad direction is when the trial Judge at the end of the prosecution case informs—in response to an invitation by the prosecution or an application by the defence—the jury that they have the right to acquit the accused at any time from then on, including without hearing the case put by the accused (if any), or the closing submissions or the Judge‘s summary and directions relating to law. The High Court ruled that the practice of giving a Prasad direction is unlawful in Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9, (2019) 364 ALR 407.

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321. Submission 9 (Australian Lawyers for Human Rights).

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322. Submission 20 (County Court of Victoria).

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323. Submission 14 (Magistrates’ Court of Victoria).

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324. Ibid.

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325. Ibid.

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326. Ibid.

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327. Submissions 4 (Director of Public Prosecutions (Victoria)), 20 (County Court of Victoria), 22 (Supreme Court of Victoria), 23 (Victims of Crime Commissioner), 25 (Victoria Police).

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328. Submission 23 (Victims of Crime Commissioner).

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329. Submission 20 (County Court of Victoria).

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330. Ibid.

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331. Submission 22 (Supreme Court of Victoria). The Supreme Court’s comments are confined to matters within its exclusive jurisdiction and where either the prosecution or defence seek to forgo the test for committal.

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332. Submission 25 (Victoria Police).

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333. Submission 4 (Director of Public Prosecutions (Victoria)).

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334. Ibid.

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335. Ibid.

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336. Cook v The Queen [2019] VSCA 87, [27] (Priest and Beach JJA). For the proposition that the power may only be exercised in exceptional circumstances, the Court cited Williams v Spautz (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ); and for the proposition that the power should only be exercised where there is nothing the trial judge can do in the conduct of the trial to remedy its unfairness, the Court cited Barton v the Queen (1980) 147 CLR 75, 111 (Wilson J); Jago v District Court of New South Wales (1989) 168 CLR 23 (Mason CJ); R v Glennon (1992) 173 CLR 592 (Mason CJ and Toohey J); Dupas v The Queen [2010] HCA 20, [17]-[18], (2010) 241 CLR 237.

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337. Edebone v Allen [1991] 2 VR 659 [25].

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338. Forsyth v Rodda (1989) 87 ALR 699, 219.

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339. Ibid 220.

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340. See the discussion in Chapter 8.

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341. The Royal Commission into the Management of Police Informants was established on 13 December 2018 to inquire into and report on Victoria Police’s relationship with former criminal barrister, Nicola Gobbo, and matters relating to Victoria Police’s use and management of human sources with legal obligations of confidentiality or privilege.

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342. See discussion below under ‘Create a test for discharge’.

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343. Thibaut Clamart, a practitioner working for Victoria Legal Aid in Shepparton, advocated for retaining the current test for committal on the basis that it serves this purpose: Consultation 13 (Goulburn Valley practitioners).

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344. See the Criminal Bar Association’s contention that ‘Comments from a magistrate on the strengths of the evidence are often made. At times this assist[s] with resolution, where an accused hears that the evidence is strong or the prosecutors hear from a judicial officer of their concerns.’ Submission 11 (Criminal Bar Association (Victoria)).

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345. These are also measures used by the DPP to decide whether to prosecute an offence: Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 1 [1]–[2] <http://www.opp.vic.gov.au/Resources/Policies>.

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