So Victorian Attorney-General Robert Clark is considering abolishing committal hearings. At the very least, significant legislative reform is likely to avert what he calls the “unnecessary examination of cases” at committal.
What might those reforms look like? Victoria’s chief magistrate Ian Gray has some interesting suggestions, which he outlined in my recent interview with him for The Sunday Age.
“There is a clear need for reform and change to the committal process” to improve efficiency, he told me. But he would prefer to fix the system rather than scrap it outright.
With this in mind, the Magistrates’ Court has recently asked the Attorney-General for two significant legislative amendments to the Criminal Procedure Act 2009 – both aimed at cutting the time and cost of committals:
1. Cutting back on cross examinations
Mr Gray said there was a need to cut back on unnecessary, time-wasting cross examinations in contested committals. He argued that section 124 of the Act raises a presumption that leave to cross examine will be granted if the informant consents and should therefore be repealed. Instead, he said, leave to cross examine should be at the court’s discretion for “special reasons” only.
This would reduce the instances when cross examination is granted, reduce the number of witnesses called and (most importantly) the length of contested committals, he argued. Such a reform would also reduce the burden on witnesses, he added.
Anecdotally, he said, the adoption of a “special reasons” test in South Australia — narrowly interpreted by the Supreme Court — had seen the length and number of contest committal hearings reduce dramatically.
The problem with committals in Victoria, as he saw it, was the emergence of a “very relaxed culture” in such proceedings. “There has been a tendency for the parties effectively to agree that cross examination should not be opposed in relation to witnesses where there is not necessarily a real dispute as to their evidence,” he said.
“You can radically reduce the time taken in committals by tightening and controlling the issue of who is cross examined and on what issues and for what length of time…Far too much time is taken for witnesses being cross-examined through what is already in their statement. That is a complete waste of time.”
“Special reasons” is a curious phrase. As examples, Mr Gray said leave to cross examine might be granted when there were identification issues or genuine forensic issues in dispute.
As a further reform in this area, he floated the idea of imposing time limits on the cross examination of witnesses. “I am looking at articulating time limits in cases where it is simply necessary to keep proper control and limit the scope of time,” he said.
Of course, the notion of setting an egg timer on learned counsel may not go down well with some.
2. Toughening the test to commit
Mr Gray said the test to commit an accused to trial under section 141 of the Act should be toughened so the court has wider discretion to discharge a case when there is little prospect of a conviction.
Here’s the broad test he proposed:
“If the Magistrate is of the opinion that there is a reasonable prospect that a properly instructed jury would convict the accused person of an indictable offence, the Magistrate must commit the accused person to trial.”
The key change here is the introduction of the word “would” — as opposed to “could convict”. Mr Gray anticipated that toughening the test would increase the number of cases discharged at committal — in fact, that’s the whole idea.
Importantly, the prosecution’s right to file an indictment in such cases under section 156 would be retained. It’s likely the proposed change would see more cases would go to trial in this way – presently the section is rarely used (County Court statistics show that less than 8 per cent of matters discharged in the Magistrates’ Court were then indicted in the County Court in the past two financial years).
Mr Gray said his proposed change to the test “would lead to a larger number of cases being efficiently discharged and thrown out at the committal stage, that’s an efficiency in itself”.
“It will winnow out a number of cases at the committal stage…that probably shouldn’t go on to the County Court. There are definitely some cases where there is enough or just enough to commit but it is unlikely on any reasonable assessment that a jury is in fact going to convict or not a reasonable prospect they will,” he said.
“It means we are not sending cases which are then going to occupy time, resources and cost on the County Court when they are in the end unlikely to be successful prosecutions.”
Separately, the Magistrates’ Court flagged a tougher approach to committals to help streamline such proceedings, including a more “concerted effort” to enforce the seven-day timeframe for filing the case direction notice. Last month, the court doubled the number of one-day committals listed for hearing (effectively overlisting certain matters) to reduce delays and time wasting caused by cases that are not ready for hearing or which have been effectively overbooked.
All up, it means that even if committals remain in Victoria they are likely to be leaner and tougher beasts than they are today.