I. Introduction

46. Some of the proposals made in this chapter are at such a level of simple practicality as to approach the trivial. But, in matters of practice and procedure, the simplest of rules can have far-reaching consequences. In dealing with matters of this kind, we often make tentative suggestions for change rather than raising issues. In referring to parts of chapter 9, we use the Roman numerals which correspond with the headings used in that chapter.

II. The Service of Process

47. The provisions of the Justices Act, 1902, as to the persons by and upon whom and the place at which service is to be effected may be unduly restrictive and sometimes lead to inconvenience and delay. We raise a number of issues and make some suggestions.

III. Representation

48. Should persons who are not legally qualified be permitted to represent parties to criminal proceedings in Courts of Petty Sessions?

49. To what extent is the “McKenzie friend” procedure (that is, the use of a friend of a defendant to assist the defendant in court with advice and note taking) seen by magistrates and others as an abuse of the procedures of the court? If it is seen as an abuse, what safeguards might be prescribed to prevent abuse?

IV. Pre-Trial Procedures

1. Introduction

50. We believe that it is essential to consider the desirability of establishing a system of pre-trial procedures for summary trials. By "pre-trial procedures", we mean steps taken before the hearing, either between the parties without the intervention of the court or, where necessary, by order of the court. Their purpose would be to identify, limit, or resolve some of the issues that are to be determined at the hearing. By “issues”, we mean questions which the magistrate will have to decide in order to decide whether the guilt of the defendant has been established.

51. The very nature of some summary matters makes a true “summary” procedure appropriate. Where the issues are simple and clear-cut there is neither need nor room for pre-trial procedures. In such cases, for example, a simple charge of common assault under section 493 of the Crimes Act, 1900, pre-trial procedures could be counter-productive, generating avoidable delays and unnecessary costs.

52. On the other hand, in more complex summary matters, pre-trial procedures of the type that we have in mind could be beneficial. The benefits can be stated in terms of fairness to the person charged, easier preparation and presentation of the case by both parties, and a saving of time for all concerned, including the court, the parties and witnesses.

53. We consider pre-trial procedures under three headings:

• Advance Disclosure of Prosecution Case;
• Limiting the Issues; and
• Resolving Certain Issues.

2. Advance Disclosure of Prosecution Case General

54. It is obviously desirable in every case that the evidence and the arguments be limited, if possible, to matters relevant to the questions that the magistrate has to decide. The first step towards achieving this goal is to be informed of the matters which the prosecution alleges.

55. If defendants are to have fair opportunities to prepare their cases they must know what the prosecution alleges against them. If they wrongly anticipate allegations that are not made, they can waste time and money on unnecessary witnesses and evidence, if they fail to anticipate allegations that are made, they can be seriously at risk, and either fail to produce available relevant evidence or have to seek an adjournment. These difficulties can be overcome by advance disclosure of the prosecution case.

56. There are different forms of disclosure. These include:

• a statement of the facts alleged;
• an explanation of the way in which it is alleged that those facts constitute the offence charged;
• a list of witnesses;
• statements of witnesses;
• inspection of exhibits.

57. It is only in summary trials before magistrates that there is not disclosure of this kind as a matter of course. In trials on indictment there are generally the depositions of the witnesses at the committal proceedings, and in summary trials in the Supreme Court there are special provisions to which reference is made below.

Proposals

58. The proposition that defendants should know the nature of the allegations they are to meet seems unanswerable but, as with any proposed rule of procedure, there are other factors to be put into the balance. It has been suggested that a great burden would be imposed on prosecuting authorities, that too much time could be consumed, and that there is danger in enabling defendants to know the identity of witnesses and the evidence it is believed they will give.

59. We invite comment on the proposal that there be a more general requirement for disclosure of the prosecution case in summary trials before magistrates, and in particular on the difficulties that such requirement might produce.

3. Limiting the Issues

General

60. Once the prosecution has disclosed the nature of its allegations, in order to know what questions have to be decided by the magistrate, it is necessary to know which of the prosecution allegations are admitted and which are denied by the defence, and what additional facts the defence asserts by way of defence. When we speak of limiting the issues, we have in mind limiting the questions to be decided by the magistrate to those which are really in dispute, with a consequent limitation in the evidence required.

61. In considering procedures which involve, or may involve, disclosure, we stress that we are not necessarily envisaging that the defence would be required to make disclosure.

Proposals

62. It seems to us that there are many advantages, mainly related to the avoidance of unnecessary delay and costs, to be derived from disclosure of the defence case. Although traditional attitudes may make further requirements in this regard unacceptable, we suggest that extension of the alibi defence provision to summary matters ought to be considered and that consideration ought also to be given to whether there are other categories of defence evidence which should be subject to similar provisions.

63. In the case of an alibi defence, the requirement of notice would be prompted by the need to avoid adjournments for the purpose of investigating whether the alibi can be confirmed or rebutted. Similar considerations apply to other defences such as those which depend on medical evidence or expert forensic scientific evidence which the prosecution needs an opportunity to evaluate or in respect of which it may wish to call its own expert witnesses.

64. Are there reasons why, in a pre-trial procedure such as a pre-trial conference, a magistrate should not actively pursue the possibility of a defence being raised which may necessitate an adjournment of the trial. If such a possibility is raised, are there reasons why the magistrate should not direct that particulars of the defence be given to the prosecution?

65. Just as the prosecution should be encouraged, or required, to tell the defence the facts upon which it proposes to rely and to seek to prove, so too the defence should be encouraged, and assisted, to indicate which of those facts it disputes, which it admits, and in the case of disputed facts, for which alternative version it contends. We invite general suggestions as to the means which might be used to achieve these goals.

4. Resolving Certain Issues

General

66. A decision on a question of law will often determine the outcome of a trial. If answered in favour of the defence, it may mean that the prosecution fails. If answered in favour of the prosecution it may lead to a plea of not guilty being changed to a plea of guilty. Likewise, there can be a question as to the admissibility of particular evidence. If resolved against the party wishing to call it the attendance of a number of witnesses may become unnecessary. In short pre-trial procedures which led to the resolution of issues of law or the admissibility of evidence would contribute greatly to the quicker and cheaper disposal of cases, with consequent benefits to everyone involved in the trial process.

Proposals

67. We suggest that steps need to be taken to ensure that the existence of questions of the kind we are now considering is made known to all parties in advance of the hearing. Awareness of these questions could flow from information volunteered by the parties, or obtained from them in a pre-trial conference. The conference itself could be ordered by the court of its own motion or on application made by one or more of the parties. Where convenient, the relevant questions could be dealt with separately and before witnesses are called.

V. Section 476 of the Crimes Act, 1900

68. What should be the criteria by reference to which a magistrate decides that an indictable offence may properly be disposed of summarily? At what stage of the proceedings should the decision be made by the magistrate (at the outset of the case by way of preliminary inquiry, or after the prosecution evidence has been heard, or at some other stage)?

VI. Forms of Summons and Listing Arrangements

69. We suggest that forms of summons be amended to provide more information for defendants.

70. If appearance in answer to a summons is to enable the court to fix a date for hearing, or to deal with other preliminary matters, we suggest that administrative arrangements be made accordingly, for example, that a magistrate or other court officer set aside specified times for dealing with these matters.

VII. Pleas

71. Section 78 of the Justices Act, 1902, is concerned with the procedures to be followed when a defendant appears at the hearing of an offence punishable on summary conviction. According to the section, the defendant is to be asked “if he has any cause to show why he should not be convicted......” We are told that in practice defendants are usually permitted to plead guilty or not guilty. We suggest that the practice should be given legislative recognition.

VIII. Prosecutors and Court Officers

72. We suggest that police prosecutors should continue not to wear uniforms when prosecuting in court.

73. We suggest that police officers who are used as court officers, ushers, and attendants, should not wear uniforms when acting in these capacities and, if possible, should be made responsible to the magistrate while on duty in court.

IX. The Mentally III Defendant

74. Should there be prescribed procedures to be followed in Courts of Petty Sessions, when a question arises as to a defendant s fitness to pleaded.

X. Witnesses

75. We suggest that the justices Act, 1902, be amended to provide legislative authority for the issue of subpoenas in criminal proceedings in Courts of Petty Sessions. If this is done, should it be necessary to retain the existing summons and warrant procedures for securing the attendance of witnesses and the production of documents?

76. We suggest that any procedures for securing the attendance of witnesses and the production of documents should ensure that the persons concerned are given prescribed information concerning their rights and obligations.

XI. Costs

77. Is the present system of awarding and assessing costs working satisfactorily? Is there any call for the abandonment of "on the spot" assessments and for the substitution of prescribed scale of costs, or a system for having a court officer certify that a bill of costs is reasonable?

78. We suggest that where a court holds that it has no jurisdiction to determine particular proceedings, it should nonetheless be empowered to make an order for costs.

XII. Contempt of Court

79. We suggest that procedures be prescribed for dealing with contempt in the face or hearing of a court.

XIII. The FUNCTUS OFFICIO Rule

80. We suggest that provision be made for a court to re-open proceedings, and to rectify orders, where, for example, a penalty has been imposed that is contrary to law, or an order has been made that is based on, or contains, an error of fact.

XIV. Civil Liabilities of Justices

81. Should magistrates be afforded protection from civil liability if, in the course of their work, they act, whether ministerially or judicially, on the basis of an honest belief that they had jurisdiction, even though they did not have it, or had exceeded it?

XV. Compensation Orders

82. Should the Crimes Act, 1900, specify the persons who may make applications for orders for criminal injuries compensation under sections 437(1) and 554(3) of that Act, the time within which an application may be made, and the form of the application?

XVI. Recognizances

83. What is the present use, and utility, of the “binding over” aspect of the recognizance process?

XVII. Rules of Court

84. Should there be detailed rules of court applicable to proceedings in Courts of Petty Sessions, and should a Rule Committee be constituted for this purpose?