I. INTRODUCTION 1
10.1 The committal for trial is arguably the most controversial part of the criminal process in New South Wales. Our description of committal proceedings in paragraph 2.6 and our outline of committal procedures in paragraph 4.14 provide a background to the controversy to which we turn in this chapter.
10.2 Some commentators, for example, Mr Justice Blackburn, Chief Justice of the Supreme Court of the Australian Capital Territory, describes committals as “a total waste of time”. 2 Mr. Justice Murphy, of the High Court of Australia has said:
“The desirability of committal proceedings in modern times is doubtful, at least in certain kinds of cases. A trend has developed in New South Wales in which conspiracy, fraud, and various corporate charges become delayed because of committal proceedings which go on for months or years. These are often interrupted with excursions into the Supreme Court for rulings on points of law or procedure. This not only tends to improperly frustrate prosecutions, but also can result in embarrassment and oppression to defendants. While I do not criticize the magistrates who unfortunately have to preside over them, such committal proceedings have become a disgrace to the administration of criminal justice in New South Wales.” 3
On the other hand, Mr. Justice Wilson, also of the High Court of Australia, has said that committals are designed to facilitate the administration of justice and that they serve this purpose in two ways:
“...in the first place, [the procedure] marshals the evidence that is tendered on behalf of the informant in deposition form, a form which enables it to be perpetuated and be available for use at the trial in the event of the witness being dead or otherwise unavailable; in the second place, it requires the magistrate to be satisfied that the evidence establishes a prima facie case before the accused person is committed to stand trial...” 4
10.3 In 1980, Courts of Petty Sessions in New South Wales dealt with 5096 committal proceedings. The outcome was as follows: 5
| No committal for trial or sentence (charge dismissed or withdrawn) | 505 | (10.0%) |
| No further proceedings after committal for trial or sentence (for example, the defendant died, was unfit to plead, failed to appear or the Attorney General terminated the trial process) | 658 | (12.8%) |
| Please of guilty before a superior court (including pleas of guilty which follow pleas of guilty before a Court of Petty Sessions, and consequent committals for sentence only) | 3236 | (63.5%) |
| Findings of guilty after trial in superior court | 388 | (7.6%) |
| Findings of not guilty after trial in a superior court | 309 | (6.0%) |
 | 5096 | (100.0%) |
Care must be taken with these figures. They are the best we have been able to obtain at this stage but they do not tell the whole story. Of the 505 charges that were dismissed or withdrawn we cannot specify how many were dismissed or how many were withdrawn Of the 658 committals that were not followed by other proceedings, we cannot specify, for example, the number in respect of which the Attorney General directed that the trial process be terminated. Also, of the 3,236 pleas of guilty before a superior court, we cannot specify the number which followed a plea of guilty before a Court of Petty Sessions.
10.4 For the purposes of this chapter, we divide the subject of committals into three parts: historical general and particular. In the general part, we raise broad issues under the heading “Before the Trial”. Among other things, we consider “paper committals” (committals based on written statements of witnesses as distinct from the oral examination of witnesses) and some alternatives to committals. In the particular part, we consider some proposals for change in the existing system in New South Wales.
II. HISTORICAL 6
10.5 From as early as the 14th century, justices of the peace had the role of investigating offences committed in England. Offences of public importance were investigated by the Secretaries of State and the Privy Council but local offences not fitting that description were investigated by justices. The justices gathered information about the offence and presented it to a grand jury in the shape of a bill of indictment The grand jury then decided whether or not the person accused of the offence should stand trial The grand jury itself comprised a group of lay people, usually between 12 and 23 in number, summoned from the local district.
10.6 Power to grant bail to prisoners was conferred on justices in 1360. By the 16th century the use of this power to set at large some notable offenders led to the enactment of legislation to regulate justices generally. After 1555, they were empowered to grant bail only after taking the preliminary depositions of witnesses and they were also empowered to bind witnesses over to attend a trial These powers are still reflected in modern committals for trial.
10.7 In the early stages of its history, the justices’ inquiry was an investigation to uncover evidence and to build a case against an accused person. The justices acted, in effect, as public prosecutors and could appear as prosecution witnesses. In the course of time, the justices’ inquiry came to include the work of the grand jury, and the latter became superfluous. Later, the justices’ active investigatory role passed to the police and the function of the justices’ inquiry reverted to that which had earlier been the function of the grand jury. The grand jury was abolished in England in 1933.
10.8 Section 5 of the Australian Courts Act 1828 (Imp.) provides that
“...all Crimes, Misdemeanours, and Offences... shall be prosecuted by Information, in the name of His Majesty’s Attorney-General, or other Officer duly appointed for such purpose...”
As noted in paragraph 2.11, the section was enacted because the mode of initiating criminal proceedings in England, by presentment of the grand jury, was unsuited, or thought to be unsuited, to conditions in the colony of New South Wales at that time. The institution of the grand jury never operated in the Supreme Court but it did in Courts of Quarter Sessions (now the District Court) from 1824 until about 1833. On the other hand, justices conducted committal proceedings from early in the 19th century. Even now, there is no express legislative provision that requires committal proceedings to be held in New South Wales.
10.9 Some elements of present day committals reflect their English history. They are administrative inquiries, not judicial proceedings. Since the place where the inquiries are held is not technically a court, the public can be excluded. And, the inquiries are not conclusive. Even if an accused person is discharged, it is still possible for proceedings to be instituted against that person.
III. BEFORE THE TRIAL
A. Introduction
10.10 In this context we use “trial” in the sense of trial on indictment before judge and jury. We are concerned here with some of the procedures which lead to trial with what the objectives of these procedures are, or ought to be, and with how best to achieve these objectives. We will consider, first, the committal system now used in New South Wales, secondly, (as an optional alternative) “paper committals”, and, thirdly, other pre-trial procedures as a substitute for, or a supplement to, committals, whether oral or “paper”.
B. Existing Committal Procedures
1. The Objectives
10.11 There seems to be general agreement that the primary objective of our committal procedures is to ensure that a person should not stand trial unless evidence has established that there is a prima facie case against that person. 7 There is not however, general agreement on the secondary objectives of our committal procedures.
10.12 In practice, committals often serve the purpose of enabling the defence to assess the strength of the prosecution case. In this sense, committals act as a form of pre-trial discovery for the benefit of the defence. Prosecution witnesses can be tested under cross-examination and sometimes, but not always, the essential issues to be determined at the trial can be clarified. In Barton v. The Queen, in speaking of the consequences of depriving an accused person of the benefit of committal proceedings, Chief Justice Gibbs and Mr. Justice Mason said:
“In such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross- examining them;....” 8
10.13 Despite these observations, the courts have generally been reluctant to acknowledge that discovery of the prosecution case is a proper objective of a committal for trial or that the procedure is designed to provide the defence with an opportunity to cross-examine the prosecution witnesses as a form of rehearsal for the trial. In Barton v. The Queen, Mr Justice Wilson said:
“Although it will ordinarily do so, a committal proceeding is not designed to aid an accused person in the preparation of his defence .... This is borne out by the established fact that the prosecution has a discretion as to the evidence it will tender in the committal proceedings. It is not obliged to produce all the evidence upon which the Crown may rely at the trial... “ 9
10. 14 We do not have to resolve this debate at this stage, but we invite comment on it. We note, however, that committal proceedings are not the only means for securing discovery. Mr. justice Murphy drew attention to this possibility in Barton v. The Queen:
“The Law Reform Commission of Canada in 1974 recommended the abolition of the committal proceeding, describing it as a cumbersome and expensive vehicle for obtaining discovery, which could be achieved by procedures specifically designed for that purpose .... It also proposed that the function of screening out those cases where there is no prima facie evidence of guilt be dealt with by a simple motion procedure based on the statements of evidence supplied to the accused.” 10
A procedure of the kind referred to could possibly be more effective than committal proceedings if the prosecution were not permitted to withhold information in the way that it may now withhold witnesses.
2. The Advantages and Disadvantages of Committals
10.15 In 1980, the Criminal Law Review Division of the Department of the Attorney General and of Justice listed some of the perceived advantages of committals. It said, in effect that committals should ensure that: 11
- no person is put on trial without a prima facie case having been first established against him or her;
- the evidence is sifted and issues are defined, thus shortening any trial and ensuring that facts in dispute are put to the jury;
- a weak case against a person will be revealed, and the person concerned will be discharged quickly, a particularly important consideration if the person is in custody;
- if a person is committed for trial the offence charged will be one appropriate to the facts disclosed;
- witnesses are examined publicly and orally, and thus their strengths and credibility are tested in a way which cannot be matched by any other procedure for discovery;
- the costs of a criminal trial which far exceed the costs of committals, are not incurred in respect of weak cases;
- by reason of the publicity which often surrounds committals, previously unknown witnesses are given notice, and may be prompted to come forward to give evidence; and
- by reason of the public nature of most committals and the general reluctance of governments to file ex officio indictments, the criminal justice system is not used for politically motivated prosecutions.
10.16 Another advantage sometimes claimed for committal proceedings is that they enable the solicitor for an accused person to protect a client against himself or herself by permitting the solicitor to analyse the prosecution evidence, test it by cross-examination and, if necessary, advise the client that the likely outcome of a trial is that the jury will convict. 12 When this happens the solicitor may be able to suggest that a plea of guilty would be in the best interests of the client.
10.17 Some critics of the committal system refuse to admit all the advantages claimed for it, and point to disadvantages. They say, for example:
- in practice, little sifting of evidence and defining of issues results from committal proceedings, and the length of the trial is seldom influenced by those proceedings;
- because of the lower level of evidence required for a committal order than for a conviction, a case which is “weak” at trial is frequently enough to warrant a committal order, and the result is that that case is presented twice before the accused is acquitted;
- the nature of the charge at a trial on indictment will be determined by the Crown Prosecutor who finds the bill and this decision can be made as readily from witnesses’ statements as from depositions;
- the costs of committal proceedings plus trial far exceed the costs of a trial alone;
- the time taken in Magistrates’ Courts by committal proceedings delays the ultimate disposal both of the summary trials in those same courts and of trials on indictment which cannot be listed until the committal order is made and the preparation of documents- principally, the depositions- is completed;
- it is an unwarranted imposition on witnesses and, in many cases, duplicates what is an unpleasant and traumatic experience for them, to require them to go through their evidence and to be cross-examined twice;
- in practice, it is almost unknown for witnesses to come forward merely in consequence of the publicity given to committal proceedings;
- as the prosecution is under no obligation to adduce all the evidence it will call at trial committal proceedings are not necessarily an adequate means of enabling the defence to discover the prosecution case; and
- committal proceedings are wasteful of time, money, and effort, and their legitimate functions could be more efficiently performed through a system of pre-trial procedures designed to effect disclosure of the prosecution case, and such limiting and pre- trial determination of issues as co-operation by the defence will allow.
10.18 The committal proceeding has become so established and well entrenched a part of the criminal procedure of this State that the strongest of argument would be necessary to justify its abolition. However, criticism of it has been growing in strength over recent years, as what appear to be shortcomings in the system are recognised. At the close of a committal proceeding which had lasted more than four years, a magistrate in Sydney recently spoke of the anguish and distress which it had caused to many people, and, referring to the time taken, used the expression “waste of time and general injustice”.
10.19 It is with a recognition of the strong support which exists for retention of committal proceedings, and the growing criticism of the difficulties and delays which they can cause, that we turn now to consider a modification of the system which has been adopted in other common law Jurisdictions.
C. Paper Committals
1. New South Wales
10.20 New South Wales is the only jurisdiction in Australia where provision is not made for committals for trial to be based on written as distinct from oral statements of witnesses. In our view, the subject of paper committals is most important and we propose to consider it in some detail. We stress that we see paper committals as possible alternatives to, not necessarily as substitutes for, either existing committals for trials or other pre-trial procedures.
10.21 We are aware that proposals for paper committals have been drafted by the Criminal Law Review Division of the Department of the Attorney General and of justice, and we stress that nothing that we say in this Paper is intended to delay the implementation of any recommendations for their adoption made by the Division Our purpose in raising the subject is to highlight aspects of the proposals and to raise some issues for consideration.
10.22 In introducing the concept of paper committals, different approaches have been adopted. For present purposes, however, we will concentrate on the provisions in force in England. We will then speak of the position in Australia.
2. England
10.23 The English paper committal system requires no attendance of witnesses, no consideration of the evidence, and, if a very recent proposal is adopted, will not require the legal representative of the accused to be present. The accused (or the justices or the prosecution) can always require the maker of a statement to give evidence, and the accused retains the option of having a full oral proceeding. Nonetheless, provision for committal on papers alone has been criticised. In a memorandum to the Philips Commission on Criminal Procedure, the Justices Clerks’ Society said that the English system was failing on three counts:
- too many defendants are committed where there is no prima facie case;
- the defence will often accept a committal on the papers because it is expeditious rather than because they have read the evidence and concluded the case should go to a jury; and
- the acceptance of written statements which contain much that is inadmissible has led to the erosion of the law of evidence. 13
10.24 In 1975, the James Committee said:
“... we are satisfied that the [paper] committal procedure can result in cases being committed for trial which ought not to be committed, and that a case is made out for the introduction of steps which will serve to reduce the number of actions when this happens. We would not suggest that the ... procedure should be abolished. This would be retrograde since ... the procedure has brought substantial benefits and its advantages outweigh incidental difficulties to which it has given rise. We have not sought to discover the extent to which the workload of magistrates’ courts would be affected if this form of committal procedure were to be abolished. But we are confident ... that to revert to the old form of committal in all cases would be impracticable because of the intolerable burden it would impose on magistrates and courts’ staff.” 14
In the event, the James Committee recommended that before a person is committed for trial under a paper committal both the defence advocate and the person conducting the prosecution should be required to sign a certificate to the effect that they have examined the witnesses’ statements and are satisfied that the case is suitable for committal without consideration of the evidence by the court.
10.25 Before 1967, committals for trial in England were similar to the current practice in New South Wales. But the Criminal Justice Act 1967 (UK) provided for paper committals.
The present procedures governing committals are prescribed by the Magistrates’ Courts Act 1980. Under that Act committals may take either of the following forms:
- hearing under section 6(1) of the Act; or
- a committal for trial without consideration of the evidence by the justices, under section 6(2) of the Act, (paper committals).
10.26 Section 6(2) provides that in cases where all the evidence before the court (whether for the prosecution or the defence) consists of written statements tendered in accordance with the requirements of section 102 of the Act, the magistrates (known as “examining justices”) may commit the accused for trial without considering the contents of the statements, unless
- the accused is not legally represented;
- an accused’s legal representative requests the court to consider a submission that the statements disclose in sufficient evidence to send the accused for trial by jury.
10.27 The requirements of section 102 are, first, that each statement must be signed by the person making it and contain a declaration that it is true to the best of his or her knowledge and belief and, secondly, that copies must have been served on the other party to the proceedings and no objection to their contents has been made by that party.
10.28 Committal proceedings under section 6(1) of the Act are broadly similar to those in Australian jurisdictions other than New South Wales. Evidence may be presented orally, or as a written statement in accordance with section 102. A statement may be admitted in evidence only if the accused does not object and the court does not require the witness to attend and I give oral evidence. Any statement so admitted is read out (in summary form if the court so directs) and forms part of the evidence on which the court decides whether or not to commit the accused.
10.29 In 1981, the Philips Commission noted that no information was kept nationally of the use of paper committals as opposed to old style committals. The Commission did state, however, that the general view is that the number of old style committals is very small and the available research has confirmed this. In one study carried out in 1975-76, of 2,406 cases sent for trial at Birmingham only 4 had full committals; in 18 others part of the evidence was given orally. 15 We have been told by one English court administrator that in his view more than 95% of all committals in England are paper committals.
3. Australia 16
10.30 In seven jurisdictions, explicit provision is made for the courts to admit witnesses written statements without the need for those witnesses to appear. As noted already, the New South Wales justices Act, 1902, does not make specific reference to the use of written evidence. But written evidence is usually tendered when a defendant pleads guilty under section 51A. We repeat that this State is distinctive in that it confines its use of written testimony to cases dealt with under that section.
10.31 Except in Tasmania and New South Wales, the legislation includes certain formal requirements which must be satisfied before these statements may be tendered. Although there are variations from jurisdiction to jurisdiction, the matters dealt with include the need to supply to the other party a list of witnesses and exhibits, copies of statements, copies of documents, a statement of the other party’s rights, and the need to observe certain formalities as to attestation. The Tasmanian Act merely refers to the fact that the evidence must be in the form of a statutory declaration.
10.32 Varying restrictions are placed on the use of written statements. The most important of these relate to whether both parties may make use of them or only one, whether they may be employed for all offences, and whether legal representation is a pre-requisite.
10.33 In Victoria only a stipendiary magistrate or two justices may preside over proceedings employing written statements; also this procedure is not available when the charge is murder, attempted murder, or conspiracy to murder. Only the informant may invoke it. In Queensland, Western Australia, and Tasmania both sides may tender written statements and these may be used in relation to any indictable offence. Written statements may not be admitted in Queensland if the defendant is not represented. In South Australia, the Australian Capital Territory, and the Northern Territory only the prosecution may claim the benefit of this procedure, which, in these jurisdictions, applies to any indictable offence.
10.34 The provisions regarding objection to the use of written statements are variously expressed. In Queensland, if the parties do not agree to the use of written statements they are not admissible and in Western Australia a party may object to a statement being tendered. In the two Territories, the defendant may, not less than five days before the hearing, require the attendance of the witness. The effect of this is to render the written statement inadmissible. The Victorian Act is very similar, but allows the accused to require the attendance of the witness either to give oral evidence or for cross-examination only. In Tasmania, the law is that a party may request the court to summon a witness who has made a statutory declaration “to attend as a witness for further examination or cross-examination”. In South Australia, it seems that the defendant cannot block the reception of a written statement, but he or she does have the right, before the completion of the prosecution case, to require the witness to attend “for the purpose of oral examination”. Cross-examination is permitted. The legislation in Queensland and the Australian Capital Territory also allows for the cross-examination of a witness whose statement has been admitted. The Western Australian statute enables any party at a preliminary hearing to apply to the court for an order requiring the attendance of a witness whose written statement has been tendered in evidence. In Victoria and the two territories, further opportunity for objection to the admissibility of a written statement arises during the hearing. In such a case it is for the court to decide whether to uphold the objection and to require the attendance of the witness. Provisions enabling the court to require the attendance of a witness who has made a written statement exist in six jurisdictions.
10.35 These procedures for the reception of written testimony leave the court’s task unalterd, as the sufficiency of the evidence must still be weighed. Four States (Victoria, Queensland, Western Australia and Tasmania) have, however, gone further and have enacted laws which obviate the need for consideration of the evidence.
10.36 Victoria allows a defendant to elect to stand trial without a preliminary hearing where he or she has been served with copies of the written evidence. In Queensland, where the evidence consists solely of written statements, and counsel for the defendant consents to the client s committal then the court must commit without determining whether the evidence is sufficient to put the defendant on trial for an indictable offence. In Western Australia, the defendant is asked to elect whether he or she wants a preliminary hearing. If he or she does not elect to have a preliminary hearing, the magistrate must, without any consideration of the contents of the written statements, commit the defendant. In Tasmania, a defendant may elect not to have depositions taken. The statute allows a defendant who has made such an election and who pleads not guilty and has not disputed the making of a committal order, to be committed for trial without consideration of the evidence. He or she is supplied with a copy of the police statements prior to the trial.
10.37 Two purposes can be fulfilled by the use of written statements instead of oral testimony. These statements may be employed as a means of making the committal procedure more efficient, for the witnesses’ need to attend and recite their evidence is obviated and the court’s time is saved. This leaves the courts function substantially unaltered, as the magistrate must still consider the evidence and determine whether it warrants committal. Alternatively, if the relevant legislation permits, the use of written statements can remove from the court the task of examining the sufficiency of the evidence and thus create a mechanism which, in effect replaces the committal hearing.
4. Committals for Sentence Only
10.38 In concluding this part of our examination of paper committals, we draw attention to one problem in New South Wales which the introduction of paper committals might solve. We refer to section 51A of the Justices Act, 1902. The section was enacted in 1955 and is concerned with the effect of pleas of guilty in committal proceedings. If a person is charged with an indictable offence not punishable with penal servitude for life, he or she may plead guilty at any stage of the committal proceedings, and may be committed for sentence, as distinct from trial Before the enactment of section 51A, such a plea could only be entered after committal for trial and arraignment before the Central Criminal Court or a Court of Quarter Sessions.
10.39 As noted earlier when a defendant pleads guilty under section 51A, written evidence is usually tendered. Indeed, the “hand-up brief” is a common description of section 51A committals which are, in effect, paper committals.
10.40 Section 51A makes provision for the case where a plea of guilty is changed to a plea of not guilty upon the commencement of the proceedings for sentence in a higher court. The section requires that the case be remitted to the Court of Petty Sessions, and committal proceedings resumed. This procedure is criticised on the ground that it enables an accused person to avoid being sentenced by a judge who is not to his or her liking, and also because of the resultant delay in final disposal of the matter. Changes of pleas are common.
10.41 If paper committals were introduced in New South Wales, there would cease to be a need for committals for sentence. People who are now ready to plead guilty under section 51A could reasonably be expected to elect for paper committal. They would then be committed for trial not for sentence. If still minded to plead guilty in the higher court, they would do so and be dealt with byway of sentence as is now the case. If, however, there was a change of mind and a plea of not guilty was entered, the trial could proceed without any reference back to a Court of Petty Sessions for resumption of the committal proceedings.
D. Other Pre-Trial Procedures
1. General
10.42 We opened this chapter with the statement that committals for trial are arguably the most controversial part of the criminal process in New South Wales. The controversy is not however, confined to New South Wales. Calls for the abolition of committals have been made in other jurisdictions and, when made, are usually coupled with calls for alternative procedures. 17
10.43 As indicated in chapter 6, in a later Issues Paper we will consider various forms of pre-trial procedures which might be introduced in to our higher criminal courts. But what ought to be done in those courts is closely linked with what is done in the lower courts. It, for example, the rules relating to committals are changed, those changes will substantially influence what happens in the higher courts. For this reason, we now open up some broad possibilities.
2. Abolition of Committals and Some Alternatives
10.44 Lord Devlin has said:
“What emerges at the end of the [committal] ceremony is a bundle of statements which could just as easily have been handed over to the defence at the beginning. In the rare cases where it is contended that there is no case fit for trial the point could be determined by a judge or magistrate on this written material. So could any question of bail where the strength of the case is not usually the deciding factor. If anyone thinks that this alteration to the law would result in any injustice to the accused, let him ask himself if he knows of a single case of injustice thereby caused in Scotland where there have never been committal proceedings at all”. 18
10.45 As noted in paragraph 10.14, in 1974, the Law Reform Commission of Canada expressed support for the view that procedures providing for discovery to accused persons of the prosecution’s case should be introduced, and that the preliminary inquiry as it then existed in Canada should be abolished. It suggested that if an accused is fully informed, before the trial and preferably before plea, of the prosecution s evidence, he or she ought then to be empowered to make an application to the court to be discharged on the basis of an absence of prima facie evidence. On such an application the court should be able to examine all the information disclosed by the prosecution to the defence and to base its decision on this information. In this way, the committal purpose of the preliminary inquiry would still be achieved, but with the advantage that it would be confined to those cases where the question of committal is really in issue. On this approach ancillary purposes of committals, for example, the perpetuation of evidence, would be dealt with as part of the discovery procedure. 19
10.46 The proposals of the Law Reform Commission of Canada have not yet been implemented. But, in 1981, the Philips Commission made somewhat similar proposals. 20
10.47 The Philips Commission also argued for fuller disclosure of the prosecution case to the defence. It said that this disclosure should enable the defence to make some assessment whether there is sufficient evidence on paper to justify the case going to trial. If the defence wishes to challenge this, it should, unless the case would be brought to trial within a specified period, have the option of a hearing before a magistrate at which to make a submission of no case to answer. This procedure would be called “application for discharge” and the Philips Commission proposed that discharge at this stage would have the same effect as discharge under the then English committal procedure. 21 The effect of the Philips Commission’s proposals was that the application for discharge would replace that procedure.
10.48 The majority of the members of the Philips Commission doubted whether, on an application for discharge, a magistrate would need to make his or her decision upon the basis of oral evidence tested under cross-examination. 22
10.49 To the extent that the sifting of bad cases from good cases is necessary, the Philips Commission proposed that it be undertaken by Crown prosecutors, or by magistrates upon applications for discharge. The Commission saw no reason in principle why crown prosecutors, or other official prosecutors, should not send cases that are to be tried on indictment direct to a superior criminal court. 23
10.50 When we come to deal in detail with the form that pre-trial procedures might take, we will consider the possibility of adapting to trials on indictment the scheme outlined earlier in this Paper in the context of summary trials (chapter 9).
E. Some Issues
10.51 Our heading to this part of this chapter is “Before the Trial”. Questions which need to be considered in this context include the following:
General
- Should committal proceedings be abolished in New South Wales?
- If so, what procedures, if any, should replace them?
- If not, are there reasons why New South Wales should not adopt the idea of paper committals for trial as an alternative, at the election of the defendant, to the present proceedings?
Paper Committals
- Generally, in what circumstances should paper committals be used?
- Should paper committals be allowed without consideration of the evidence by the magistrate?
- Should written statements be admissible in proceedings involving an unrepresented defendant?
- Should written statements be admissible in proceedings relating to all indictable offences?
- Should written statements be in a prescribed form?
- Should written statements be served within a prescribed time before the commencement of the hearing, and in a prescribed manner?
- Should the court be empowered to delete any inadmissible material in a written statement?
- Should there be an alternative method of proceeding whereby the written statements of some witnesses are used and other witnesses are examined orally?
- Should written statements admitted as evidence in a committal be admissible as evidence at a trial if the witness is not then available?
IV. PARTICULAR PROBLEMS IN THE PRESENT FORM OF COMMITTALS
A. Introduction
10.52 In this section of this chapter, we consider a number of matters which arise out of the existing rules relating to committals for trial in this State. They are:
- the title of the process;
- the constitution of the committing court;
- the joinder of additional defendants;
- the problem of the non-appearing or absconding defendant;
- the presence of the defendant;
- the application of the rules of evidence;
- the criteria for committal (sections 41(2) and (6) of the Justices Act 1902);
- the costs of conveying a defendant to gaol;
- the taking of depositions after committal;
- guilty pleas and committal for sentence;
- judicial review of the process.
B. The Title of the Process
10.53 “Committal proceedings” is the expression commonly used in New South Wales to describe the process by which a decision is made by a Court of Petty Sessions on the question whether a person charged with an indictable offence shall be put on trial. The expression “preliminary hearing” is used in New Zealand and in many parts of the United States. The similar expression “preliminary examination” is used in Victoria, South Australia and the Australian Capital Territory. It seems to us that the expression “preliminary inquiry” is not only a more accurate description of the process but also that it has the advantage of avoiding the pejorative overtones of “committal proceedings”. We suggest that if committal proceedings are retained they should be described legislatively as a preliminary inquiry.
C. The Constitution of the Committing Court
10.54 Section 41 of the Justices Act 1902, provides, in effect that committals for trial shall be presided over by “a Justice or Justice”. In practice, they are presided over by a magistrate. The proceedings are important and we suggest that the legislation be amended to reflect the practice and provide that committals must be presided over by a magistrate.
D. The Joinder of Additional Defendants
10.55 In Victoria, provision is made to join additional defendants even after a preliminary hearing has commenced. An additional defendant has the earlier evidence outlined to him shall be granted an adjournment for legal advice if he or she seeks it, may have witnesses recalled, and may make copies of the record of the evidence already taken. 24 We suggest that it may be useful to incorporate a similar provision in the Justices Act, 1902.
E. The Problem of the Non-Appearing or Absconding Defendant
10.56 Some magistrates have suggested to us that the failure of defendants to appear at the time fixed for the commencement of a committal hearing, or when a defendant absconds in the course of the proceedings, is causing inconvenience and loss of time. In the first instance, the proceedings cannot commence and, in the second instance, they cannot continue. We ask whether a failure to appear, without reasonable cause or in specified circumstances, should not be deemed to be a valid consent to having the matter dealt with as a paper committal. This last question assumes the introduction of a paper committal system and is asked only on the assumption that such a system is introduced.
F. The Presence of the Defendant
10.57 Under section 41(1B)(b) of the Justices Act, 1902, where a defendant appears with one or more other defendants, the defendant, upon his or her application may be excused from attending the hearing during the taking of any evidence for the prosecution if, during that time, he or she is legally represented. Are there any reasons why this provision should not be amended to allow a defendant to be excused, whether or not he or she appears with one or more other defendants?
G. The Application of the Rules of Evidence
10.58 Magistrates have suggested to us that because committals for trial are inquiries and not trials, they should be given wide powers to control the duration and direction of cross-examinations. For the same reason, they suggest that magistrates should also be given wide discretionary powers in relation to the application of the rules of evidence to committals. Magistrates have some powers under the Evidence Act 1898, to exercise control over cross-examinations. Comments we have received suggest that these existing powers are not always used to the extent they could be. We have formed no views on these matters but we will welcome comment.
H. Criteria for Committal: Section 41(2) and Section 41(6) of the Justices Act, 1902
10.59 Section 41(2) provides:
“After all the evidence for the prosecution has been taken the justice or justices shall -
Section 41(6) provides:
“When all the evidence for the prosecution and for the defence has been taken the justice or justices shall -
(a) if he or they is or are of opinion that on such evidence the defendant ought not to be put upon his trial for an indictable offence, forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry,
(b) if he or they is or are of opinion that the evidence is sufficient to warrant the defendant being put on his trial for an indictable offence, or if the evidence raises a strong or probable presumption of the guilt of the accused, commit the defendant for trial.”
10.60 At the conclusion of the case for the prosecution a magistrate must proceed with the hearing if a prima facie case has been made out At the conclusion of the case for the prosecution and the defence, a magistrate must commit if the evidence is sufficient to put the defendant on trial or if it raises a strong or probable presumption of guilt. How does the decision at the first stage differ from the decision at the second stage?
10.61 One view is that the direction that a prima facie case be made out requires the presentation of some evidence which implicates the accused. The evidence must be legal evidence (relevant credible and admissible) and it must lay the basis of establishing each ingredient of the offence. On the other hand something more is needed before committal can be justified. The difference between the two decisions can perhaps be illustrated by considering the first decision as an assessment of the evidential value of the material presented to the court and the second as an assessment of its probative value or weight. 25
10.62 In speaking of the phrase “prima facie case”, Lord Reid has said:
“That phrase is not self- explanatory: what is it that the case shows prima facie or at first sight? Is it that on the evidence as it stands at the moment the accused would seem to be guilty, or is it that the evidence contains allegations set out in such a way that further investigation is justified? I would hope that a less ambiguous phrase will be used especially in any future legislation.” 26
10.63 Quite apart from what might be seen as a need more precisely to define the circumstances in which the magistrate should discharge under section 41(2) or commit under section 41(6), it seems that the present wording of section 41(6)(b) calls for examination. In specifying the circumstances in which a magistrate should commit for trial after all the evidence has been heard, the section provides two alternative tests:
- that the evidence is sufficient to warrant the defendant being put on his trial; and
- if the evidence raises a strong or probable presumption of guilt.
It has been suggested that any case which satisfies the second test must satisfy the first. Then the question is asked whether the first test is intended to cover cases which would not fall within the second. If a “strong or probable presumption of guilt” is intended to be necessary before a committal order is appropriate, then it seems, that would be an appropriate single test. If, on the other hand, it is intended that something less than that presumption is sufficient, then it is difficult to see the necessity for that provision. As to the words “the evidence is sufficient to warrant the defendant being put on his trial”, it has been argued that they beg the question and do not give any indication of the circumstances in which the evidence should be regarded as sufficient for the purpose.
10.64 We invite submissions as to the criteria upon which magistrates should be required to act at the two stages covered by section 41(2) and section 41(6), and the manner in which those criteria might be stated.
1. The Costs of Conveying a Defendant to Gaol
10.65 Section 43(2) of the Justices Act, 1902, enables a defendant committed for trial to be ordered to pay the costs of his or her own conveyance to prison. The provision has not been amended since 1902 and is itself based upon a provision contained in an Imperial Act of 1848. We suggest the provision is inappropriate and should not be retained.
J. The Taking of Depositions After Committal
10.66 Provision is made in Victoria and New Zealand for witnesses to be called before a magistrate and for their depositions to be taken even after a person has been committed for trial. 27 We suggest that similar provision should be made in New South Wales. Two advantages would follow. First, the deposition could, subject to compliance with section 409 of the Crimes Act, 1900 (which is concerned with depositions which may be read at trials) be tendered in evidence at the trial if the witness were not then available. Secondly, the defence would be given early notice of the evidence, and a chance to cross-examine on it, if required.
K. Guilty Pleas and Committal for Sentence
1. Introduction
10.67 Section 51A of the Justices Act, 1902, is concerned with the effect of pleas of guilty in committal proceedings, and the consequent committal for sentence, as distinct from trial. In paragraph 10.41, we said that if paper committals were introduced in New South Wales, there would cease to be a need for committals for sentence, and, accordingly, for section 51A. If, however, section 51A remains, there are criticisms of it which need to be considered.
2. Extension to All Indictable offences
10.68 Section 51A does not apply to offences which are punishable by penal servitude for life. The exclusion of these offences might be justified on the basis that an innocent person, through fear, inducement, or some irrational motive may plead guilty to a serious charge. On the other hand, the present level of legal aid and the discretion in both the lower and the superior courts to reject a plea of guilty should guard against any such eventuality. In short, are there still reasons for limiting pleas of guilty under section 51A to offences not punishable by penal servitude for life?
3. The Calling of Evidence by a Defendant in Section 51A Cases
10.69 After pleading guilty under section 51A, a defendant may not be entitled to call evidence. In South Australia, in similar circumstances, a defendant is entitled to call evidence as to his or her good character. 28 When evidence of this kind is called, it may be admitted before the higher court if, for specified reasons, the witness is unable to attend and give evidence before that court. We suggest that such evidence should be legally admissible in proceedings under section 51A. In practice, some magistrates already admit it and the effect of our suggestion is that the practice should be given legislative backing.
4. Changes of Plea Before the Superior Court
10.70 As noted already, section 51A makes provision for the case where a plea of guilty is changed to a plea of not guilty upon the commencement of the proceedings for sentence in a superior court. In short, the case is remitted to the Court of Petty Sessions and the committal proceedings are resumed.
10.71 Section 51A could be amended to provide that if a defendant has been committed for sentence following a plea of guilty and does not adhere to that plea before the higher court, the judge of that court would have a discretion either to remit the matter to the Court of Petty Sessions or to direct that it proceed to trial without further committal proceedings. We invite comment on this proposal, and on the conditions, if any, which may be imposed upon the exercise of that discretion if the proposal is adopted.
L. Judicial Review of Committal Proceedings
10.72 A magistrate’s task on committal for trial is to determine whether or not committal is warranted. An important incidental question is whether the Supreme Court should be able to review the conduct and the outcome of the committal This will be considered in a later Issues Paper which will deal generally with the subject of appeals.
FOOTNOTES
1. In this chapter we draw heavily on Dr. John Seymour’s Committal for Trial, (Australian Institute of Criminology, Canberra, 1978). In particular, paras.10.32-10.39 are Dr.. Sevmour’s work, not ours, and we acknowledge this fact with appreciation and indebtedness.
2. Fifth South Pacific Judicial Conference (1982), Transcript of Proceedings (High Court of Australia, Canberra, Australia): 24 May to 26 May, p.60.
3. Barton v. The Queen (1980) 32 ALR 449, at p.469, 55 ALJR 31, at p.41.
4. Barton v. The Queen (1980) 32 ALR 449, at p.472, 55 ALJR 31, at p.43.
5. These figures have been extracted by us from the NSW Bureau of Crime Statistics and Research, Court Statistics 1980 (Statistical Report 12, Series 2, NSW Govt Printer, 1980). Additional information was supplied to us by the Bureau of Crime Statistics and Research. Any errors in interpretation of the figures are ours.
6. As to the English historical material see generally, J. Stephen, A History of the Criminal Law of England (Macmillan & Co., London, 1883) vol 1; P. Devlim The Criminal Prosecution in England (Oxford University Press, London, 1960). As to the New South Wales historical material, see JM Bennett, “The Establishment of Jury Trial in New South Wales”, (1961) 3 Sydney Law Review 463.
7. See, for instance, R. v. Epping and Harlow Justices; Ex parte Massaro [1973] QB 433, at p.435, per Lord Widgery, C.J.
8. Barton v. The Queen (1980) 32 ALR 449, at p.462; 55 ALJR 31, at p.38.
9. Barton v. The Queen (1980) 32 ALR 449, at p.472; 55 ALJR 31, at p.43.
10. Barton v. The Queen (1980) 32 ALR 449, at p.469, 55 ALJR 31, at p.41.
11. Department of Attorney General and of Justice, Criminal Law Review Division Proposals for Revision of the NSW Justices Act, 1902, (NSW Govt Printer, 1980), p.12.
12. D. Napley, “The Case for Preliminary Inquiries” [1966] Criminal Law Review 490.
13. See (1980) 130 New Law Journal, 125.
14. James Report, para.232.
15. The Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (HMSO, Cmnd.8092-1, 1981), para.193. (This publication is ancillary to the Commission’s Report).
16. See n.1 above.
17. See, for example, paras 10.46-10.48 below.
18. “The Police in a Changing Society”, reprinted in Comparative Criminal Procedure (New York University Press, New York 1969), p.71 (Frank Newsom Memorial Lecture, 1966).
19. Discovery in Criminal Cases (Study Report- Information Canada. Ottawa, 1974), pp.71-73.
20. Philips Report, paras.8.27-8.31.
21. Id., para.8.28.
22. Id., para.8.3 1.
23. Id., para.8.30.
24. Magistrates (Summary Proceedings) Act 1975, s.55.
25. See J. Seymour, n.1 above, pp. 30-31.
26. Armah v. Government of Ghana and Anor [1968] AC 192, 229-230.
27. Summary Proceedings Act 1957 (NZ), s.178, Magistrates Summary Proceedings Act 1975 (Vic), s.61.
28. Justices Act 1921-1981 (SA), s.137(1), (2).
