The Victorian Law Reform Commission in a report tabled this week has recommended changes to pre-trial procedures for serious crimes, including abolishing the test for committal. The report notes that pre-trial procedures include all the steps that occur before an accused person is put on trial for a serious crime (indictable offences). The VLRC was asked to review pre-trial procedures to make the system more efficient and less traumatic for victims of crime, while maintaining the right to a fair trial.
The Commission has recommended that the 'test for committal' (the process by which a magistrate decides whether the evidence is strong enough to send an accused person charged with a serious crime for trial in a higher court) should be abolished. The VLRC argues that step is unnecessary because the accused is only discharged in one or two per cent of cases. Instead, the defence should have the right to apply for a discharge of the accused when there is no reasonable prospect of conviction. For greater efficiency in pre-trial procedures, when matters fall within the jurisdiction of the Supreme Court, such as murder and treason cases, the pre-trial procedures should also be dealt with by the Supreme Court from the start. However, pre-trial case management for matters that will be heard in the County Court (including rape and sexual assaults, serious assault, serious theft, and drug trafficking) should continue to be handled by the Magistrates' Court.
Other recommendations include: • reducing the number of hearings before trial • ensuring that experienced lawyers are involved at an early stage • reforms to the way charges are laid and evidence is disclosed • more involvement by the Director of Public Prosecutions (DPP) at an early stage • better protections to reduce trauma for victims and witnesses.
The report states -
This report is about improving committal and other pre-trial indictable procedures to reduce trauma for victims and witnesses, improve efficiency in the criminal justice system, and ensure fair trial rights.
The present committal and pre-trial system
Most indictable criminal cases start in the lower courts. They progress through the ‘committal stream’ until either: i) the accused is committed by order of the Magistrates’ or Children’s Court for trial or sentence in a higher court ii) the matter resolves summarily, or iii) the prosecution is discontinued.
The Criminal Procedure Act 2009 (Vic) sets out the role of the lower courts in managing indictable cases. This includes ensuring a fair trial through disclosure of evidence and cross-examination of witnesses; narrowing the issues in contention; determining how the accused proposes to plead and resolving matters where possible.
This culminates with a magistrate determining if the evidence is of sufficient weight to support a conviction (the test for committal or committal determination).
The case management conducted by the lower courts and the committal determination together constitute ‘committal proceedings’.
Pre-trial case management also occurs in the higher courts after the accused has been committed for trial. ...
Each year, approximately 3000 criminal cases go through some form of committal proceeding. Around 30 per cent of these resolve in the Magistrates’ Court. Around 60 per cent are committed to the County Court, around half of these for trial, the other half for sentence following a plea of guilty in the Magistrates’ Court. A further four per cent are tried or sentenced in the Supreme Court.
Gaps in the data make it difficult to tell how common it is for victims and other civilian witnesses to be cross-examined more than once before trial, or both before trial and again at trial.
Inadequate data collection also makes it difficult to identify when and why avoidable delay occurs.
Data collection systems should be improved so that the performance of the criminal justice system can be better understood and evaluated.
Notwithstanding the limitations in the data, it appears that: i) delay in indictable matters is no worse in Victoria than in other Australian states and territories, and Victoria compares favourably to most other jurisdictions ii) late guilty pleas are not more of a problem in Victoria than elsewhere.
The test for committal
Currently, magistrates must consider the evidence to determine if it is of sufficient weight to support a conviction for an indictable offence (the test for committal or committal determination).
While the rationale for applying a committal test is sound—to provide independent scrutiny of an indictable prosecution—requiring it in all indictable stream matters is unnecessary; therefore the test should be abolished. The lower courts should, however, be empowered to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction. Should the lower courts conduct indictable case management?
It is now generally accepted that best practice case management requires the trial judge to deal with pre-trial case management. That has not, however, been the practice historically in Victoria for indictable matters. Further, the evidence suggests that the lower courts manage committal proceedings effectively and it would not be prudent to change the system at present. The same considerations do not apply to the Supreme Court. It is appropriate for the Supreme Court to deal with indictable offences within its exclusive jurisdiction from inception, consistent with modern case management principles.
Apart from Children’s Court cases, cases within the exclusive jurisdiction of the Supreme Court should be filed in and managed by that Court, but only if this change is accompanied by adequate resourcing.
There is scope to improve pre-trial procedure in the lower courts. As well as abolishing the test for committal, changes should be made to other procedures to improve efficiency while also ensuring fair trial rights and reducing trauma for victims and witnesses. These changes are set out in Chapters 6–12.
Reforming pre-trial indictable case management: outline of a new system
A single issues hearing should replace committal mention hearings and committal hearings. When cases are transferred to the County Court by order of a magistrate (assuming the test for committal is abolished and Supreme Court matters are filed in the Supreme Court), they should be accompanied by an issues hearing report so that judges in the County Court know about issues that arose in the lower court.
The Director of Public Prosecutions (DPP) should assume formal prosecutorial responsibility in indictable matters at the filing hearing.
The flow chart on page 65 illustrates the main components of the proposed system.
Role of the DPP and defence practitioners
To address issues related to charging and disclosure, the DPP should be actively engaged in the conduct of indictable proceedings in the lower courts.
Measures should also be taken to ensure the early and continuous involvement of prosecution and defence practitioners.
Overcharging involves unnecessarily filing more charges than are ultimately indicted or pleaded. To address this, the DPP should provide binding charging instructions to informants in cases where there has been an investigation prior to apprehension of the alleged offender. In other cases, the DPP should review the charges within seven days of being provided with the brief of evidence.
Other measures to reduce overcharging include providing training to Victoria Police officers.
The prosecution should ensure that victims are informed about and consulted in relation to decisions to withdraw charges or discontinue a prosecution.
Inadequate early disclosure is a problem. A range of measure should be taken to address it, including making the DPP responsible for disclosure to the accused, and the informant responsible for disclosure to the DPP.
Other measures include clarifying that the prosecution must disclose the general existence of material that the informant objects to producing in the hand-up brief; further expanding the list of material that the Criminal Procedure Act 2009 (Vic) specifies must be included in the hand-up brief; and requiring the informant to give disclosure evidence at an issues hearing.
Forensic reports and delay
Achieving timely disclosure of forensic evidence is difficult and the provision of forensic reports is a major source of delay. Some of this delay may be unavoidable given the time required to conduct some forms of forensic analysis, but better funding of forensic service providers and case conferencing between the parties and forensic analysts should reduce delay.
Pre-trial cross-examination often contributes to early resolution and better disclosure but it can also be stressful or traumatising for victims and other witnesses. The current test for leave to cross-examine at a committal hearing should be applied more strictly in accordance with its terms, and additional criteria for leave should apply in some cases.
Existing prohibitions on cross-examination should be extended to include all cases involving family violence where the complainant was a child or person with a cognitive impairment when the proceedings commenced.
The intermediaries pilot program should be expanded to assist all witnesses with communication difficulties, and alternative arrangements for giving evidence should be used wherever necessary to reduce trauma for victims and witnesses.
As a specialist jurisdiction the Children’s Court should continue to manage committal proceedings, including cases within the exclusive jurisdiction of the Supreme Court.
The Children Youth and Families Act 2005 (Vic) should be amended to clarify certain processes in the Children’s Court.
The Commission's recommendations are
Chapter 3 Committal system and indictable case data
1 The Magistrates’ and Children’s Courts should collect detailed data about pre-trial cross-examination.
2 The case management systems used by the Magistrates’ and Children’s Courts should be linked with the higher courts’ case management systems to enable the creation of a single electronic case file for indictable cases.
Chapter 4 The test for committal
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.
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.
Chapter 5 Should the lower courts conduct indictable case management?
6 The lower courts should retain a case management function for indictable stream matters that will be heard in the County Court.
7 The Criminal Procedure Act 2009 (Vic) should be amended to require that matters within the exclusive jurisdiction of the Supreme Court are filed in the Supreme Court, aside from Children’s Court matters.
Chapter 6 Reforming pre-trial case management: outline of a new system
8 The Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions to assume formal prosecutorial responsibility in cases involving indictable offences from the filing hearing onwards.
9 The Criminal Procedure Act 2009 (Vic) should be amended to require that a case direction notice is filed before an issues hearing rather than a committal mention hearing.
10 If an application for summary jurisdiction includes an application for a Koori Court hearing, this should be stated in the case direction notice and the Magistrates’ Court registrar should list the issues hearing before a Koori Court magistrate.
11 Section 127 of the Criminal Procedure Act 2009 (Vic) should be amended to require that a case conference be conducted during an issues hearing in all indictable cases, regardless of offence type.
12 The Criminal Procedure Act 2009 (Vic) should be amended to replace committal mention hearings and committal hearings with an issues hearing.
13 Magistrates should be required to prepare an issues hearing report for transmission to the County Court.
14 The courts should be adequately funded to support any changes to their case management role.
Chapter 7 Role of the DPP and defence practitioners
15 Experienced practitioners should be engaged at an early stage in proceedings and have continuing responsibility for the case until trial or resolution.
16 The Director of Public Prosecutions and Victoria Legal Aid should be provided with additional funding to ensure experienced practitioners have oversight of committal proceedings from the outset and are responsible for the conduct of matters until final resolution, including in the higher courts.
17 Fee structures at Victoria Legal Aid and the Office of Public Prosecutions should provide for the early involvement of counsel and to ensure continuity of representation.
18 Victoria Legal Aid and the Office of Public Prosecutions should regularly and publicly report, preferably in their annual reports, on: (a) measures used to ensure legal practitioners acting in indictable matters retain responsibility for those matters for the lifetime of the prosecution (b) the success of these measures.
Chapter 8 Charging practices
19 Victoria Police officers should receive regular and up-to-date charging training.
20 In cases where indictable charges are filed immediately following apprehension, the Director of Public Prosecutions should review the charges within seven days of receipt of the hand-up brief from the informant.
21 In cases involving a suspected indictable offence that has been the subject of an ongoing investigation prior to arrest, the investigating agency should prepare an ‘initial charge brief’. This should be provided to the Director of Public Prosecutions before any charge sheet is filed.
22 The Director of Public Prosecutions should review any ‘initial charge brief’ received and provide charge instructions to the informant. Charge instructions should be binding on the informant.
23 The Criminal Procedure Act 2009 (Vic) should be amended to give the Director of Public Prosecutions the power to withdraw, amend or file charges in the Magistrates’ and Children’s Courts.
Chapter 9 Disclosure
24 While the informant should be required to prepare the brief of evidence, the Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions (DPP) to file and serve the brief and assume all obligations of disclosure to the accused currently imposed by the Act on the informant. The DPP should ensure the existence of material that the informant objects to producing is communicated to the accused.
25 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the Director of Public Prosecutions’ disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.
26 The Public Prosecutions Act 1994 (Vic) should be amended to empower the Director of Public Prosecutions to make enquiries of the informant in relation to disclosure, and to require the informant to respond to those enquiries.
27 Additional resources should be provided to the Office of Public Prosecutions to allow it to manage its increased disclosure obligations.
28 Part 4.4 of the Criminal Procedure Act 2009 (Vic) should be amended to make it clear that the informant has a continuing obligation of disclosure to the Director of Public Prosecutions (DPP). This obligation commences at the filing hearing and includes preparation of the hand-up brief, which must be provided to the DPP before the date specified by the Magistrates’ Court at the filing hearing for service of the hand-up brief on the accused.
29 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the informant’s disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.
30 The Criminal Procedure Act 2009 (Vic) should be amended to specify that informants have an obligation to retain potentially disclosable material for as long as their disclosure obligations continue.
31 Systems should be established at investigating agencies to ensure that: (a) informants are made aware of, or able to obtain information concerning, potentially disclosable material that exists or is known about within other parts of the agency (b) potentially disclosable material is retained and not destroyed.
32 The Criminal Procedure Act 2009 (Vic) should be amended to require the informant, unless excused by the court, to appear at the issues hearing and provide evidence that: (a) all available relevant material has been disclosed to the Director of Public Prosecutions (b) all reasonable enquiries have been made by the informant to determine if there is any additional relevant material in existence.
33 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the informant’s disclosure obligations to the Director of Public Prosecutions (DPP) apply regardless of claims of privilege, public interest immunity, or statutory immunity, but where such claims are made, the material that is the subject of these claims need not be produced to the DPP. The informant must indicate to the DPP the grounds on which the objection to production is made.
34 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to require reference in the hand-up brief to the general existence of material that the informant objects to producing and the grounds for the objection.
35 The Magistrates’ Court Rules 2019 should be amended to clarify that the list of contents that must accompany the hand-up brief and be signed by the informant (currently Magistrates’ Court Form 30) includes a field noting the existence of material, if any, that the informant objects to producing.
36 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include a section explaining that a hand-up brief must disclose all relevant material, including all information, documents or other things obtained during the investigation that are exculpatory or might reasonably be expected to: (a) undermine the case for the prosecution or (b) assist the case for the accused.
37 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include, in addition to the other materials that a hand-up brief must contain, a list of the materials contained in the list of ‘Standard Disclosure Material’ currently set out in Magistrates’ Court Practice Direction No 3 of 2019.
Chapter 10 Forensic reports and delay
38 Funding for forensic service providers should be increased to support faster preparation of forensic reports.
39 Forensic service providers should publicise current turnaround times for the provision of reports and the courts should have regard to these when setting dates for the service of reports.
40 Forensic case conferencing between forensic experts and the prosecution, based on the existing model used in clandestine laboratory drug cases, should be adopted in all cases where forensic evidence is in issue.
41 Forensic case conferencing between forensic experts and defence practitioners should be encouraged in cases where forensic evidence is in issue.
Chapter 11 Pre-trial cross-examination
42 Section 123 of the Criminal Procedure Act 2009 (Vic) should be amended to prohibit cross-examination in the lower courts of any witnesses in cases where the complainant was a child or person with a cognitive impairment when the proceedings commenced and where the conduct constituting the offence involves family violence within the meaning of the Family Violence Protection Act 2008 (Vic).
43 Any amendments to expand section 123 to include family violence offences should be accompanied by appropriate resourcing of the Courts, the Office of Public Prosecutions, Victoria Police and Victoria Legal Aid.
44 There should be a formal evaluation of the operation of the scheme created by sections 123 and 198A of the Criminal Procedure Act 2009 (Vic) to determine if it is operating in the best interests of victims and witnesses, and its broader resource implications.
45 Section 124(5) of the Criminal Procedure Act 2009 (Vic) should be amended to require that the considerations in the section also apply to applications for leave to cross-examine witnesses with a cognitive impairment, and victims in cases involving sexual or family violence.
46 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to require a magistrate to provide written reasons why, with reference to sections 124(3) – (5), leave was granted to cross-examine witnesses.
47 The Criminal Procedure Act 2009 (Vic) should be amended to allow for an intermediary to be appointed to assess any witness with communication difficulties following an application by a party or on the court’s own motion.
48 Division 4 of part 8.2 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the court may make directions for alternative arrangements for taking the evidence of any witness where the interests of justice so require, and taking into account the need to minimise trauma for victims and witnesses.
Chapter 12 Children’s Court
49 The Children, Youth and Families Act 2005 (Vic) should be amended to require applications for summary jurisdiction be made prior to, or at, the issues hearing. Applications for summary jurisdiction should only be made after an issues hearing in exceptional circumstances.
50 The Children, Youth and Families Act 2005 (Vic) and the Criminal Procedure Act 2009 (Vic) should be amended to permit issues hearings to be held jointly in cases involving child and adult co-accused.
51 The Children, Youth and Families Act 2005 (Vic) should be amended to allow the Children’s Court to transfer related indictable offences for hearing and determination in the County or Supreme Courts, in cases that are uplifted from its jurisdiction.