Session 4 - Paper 1

COMMITTAL - POST COMMITTAL

by Paul Coghlan QC

Committal has always been an integral part of the criminaljustice system. It was designed to ensure that there was sufficient evidence towarrant an accused person being committed for trial in a superior court, itliterally meant committal to gaol until the next sitting of theassizes.

It probably provided an opportunity for statements to be takenin a written form and it was usual for witnesses to have their deposition readback to them before they signed it. When I commenced practice many committalswere taken down in long hand by the clerk and cross-examination was also writtendown but in a form which was often cryptic and almost certainly incomplete. Theuse to which such material could be put as constituting a prior inconsistentstatement was very limited. The one general exception was in homicide caseswhere there was no committal as such but committal arose out of a CoronialInquest. The procedure in those cases was that witnesses would have theirstatement read to them by the clerk and when they adopted the statement or madesuch alterations as were necessary they would be asked to sign “theirdepositions”.

In those cases it was usually possible to see the briefbeforehand at the Coroner’s Court and it was common for counsel to begiven a copy of a statement of a witness when the witness went into the witnessbox. Those statements were “recovered” by prosecutor before or atthe end of the Inquest.

Although it became part of the tactics in the conduct of acommittal to obtain the statements of the witnesses, it was not alwayssuccessful. The “dredging” subpoena is a relatively moderninvention. Many committals involved unrepresented defendants; legal aid was notcommonly available. The material available prior to trial was therefore oftensketchy. The drafting of notices of additional evidence was approached withmuch guile, the less they said the better. They were often delivered in ahandwritten form, carbon copies (with a very old piece of carbon paper) and wereoften illegible. Needless to say “Basha” enquiries were yet to beinvented.

Trials were usually conducted without defence counsel everseeing the statement of a witness. The prosecutor’s duty was to provide acopy of the statement only if the witnesses substantially departed from it or ifit contained something of assistance to defence. In Victoria prior to 1976, theorder of final addresses was in part governed by the question of whether thedefence went to evidence. It followed that great care needed to be taken aboutany cross-examination of witnesses about the content of their statements and anytender of all or part of a statement might lead to the loss of the chance toaddress last. Last address was a prize greatly admired by the persuasiveadvocate.

When the High Court in Barton v R (1980) 147 CLR75 spoke of the necessary and indispensable part which committals played inthe criminal justice system, the court was speaking of committals much in theform I have described then. Committals did provide the opportunity for adefendant to know the case against him, they did provide an opportunity forcross-examination and they did provide the opportunity for the defence to callevidence. The number of occasions when the defence called evidence incommittals (particularly the defendant) were minuscule. Then, as now, thenumber of persons not committed were few.

In the states the use of Notice of Trial or ex officioindictment was common. When committals were conducted before unqualifiedJustices of the Peace the possibility of error was great.

In case I am accused of undue nostalgia, these comments dohave a point. I do not believe that the rate of conviction was any higher inthose days. It has been established that within reasonable bounds the rate ofconvictions on trial has remained about 50%, sometimes a little higher,sometimes a little lower. There is a possibility at the present time that therate of acquittal will increase as sexual offence cases, and in particular oldsexual offence cases, form a disproportionate percentage of the cases tried. They lead to many re-trials but that might be the subject of a different paperat a different time.

No situation is static. In earlier years very many casesdepended upon evidence of confession. The question of a “verbal”and then the unsigned record of interview loomed large in very many trials. Thepressures were, and to some extent still are, on police officers to“finish off a brief” once an admission had been made. Much of thedebate, but by no means all of it, about confessional evidence has abated sincethe introduction of tape or video recorded evidence.

The amendments making those changes were made in 1988 andalthough the statutory provisions are not clear cut, the value and importance ofthose reforms to criminal justice cannot be overrated. I am not completely surebut I do not believe that the number of cases in which some confession is madehave altered much or, to put it another way, whether the number of “nocomment record of interviews” has increased.

There are other pressures which have arisen as to how and inwhich form an accused should approach the question of interview. They includethe fact that unsworn statements were abolished and replaced by unswornevidence, which was a very peculiar “beast” indeed. That reform wasunsuccessful and eventually “the unsworn” was abolished altogether. The prophets of doom argued at the time that fair trial was at an end. Theyhave not been proved to be right. What it has indicated is that an accused whohas something to say in his defence may well be better off saying it to thepolice at interview.

Perhaps I digress. I come back to committals. The majorchange in the committal process began when the hand-up brief procedure wasintroduced. When first introduced in Victoria, I think in the mid 1970’s,it was optional in general cases but became compulsory in sexual offence casesfrom 1981. Eventually as a matter of major reform, related to the time thatcommittals were beginning to take (rather than out of abundance of fairness),all committals were by the hand-up brief procedure. By about 1986, the hand-upbrief procedure became compulsory in all cases including homicide.

As the name indicates, a hand-up brief was a brief whichincluded all the statements on which the Crown would rely, together with theexhibits. By 1989, the 5^th Schedule of the Magistrates Court Act1989 governed the whole of procedure of committal by hand-upbrief.

It is my own experience that the use of hand-up briefs haschanged trials in the County Court quite significantly. The change was alsoeffected by what the High Court had said in Petty and Maiden v R(1991) 173 CLR 95. In that case the court made it clear that there was noresponsibility on counsel to put the defence at committal or more importantly noconsequence (by way of criticism of the accused) could flow from the failure toput any proposition at committal.

The hand-up brief procedure was said to have a number ofadvantages. They included the shortening of proceedings, an easier position fora witness who did not have to give evidence-in chief and the possibility that anassessment of the case could be made, either in favour or against a defendant onthe papers. A whole committal could take place on the papers. In thatprocedure notice had to be given as to what witnesses were required forcross-examination, leave was not required and there were no limits oncross-examination other than the rules of evidence.

The difficulty about those committals was that the procedureof allowing a witness to give evidence-in-chief by reference to his or herstatement but without him or her reading it out aloud or having it read to themplaced (and places) witnesses at a huge disadvantage at the hands of thecross-examiner. Cross-examination became the testing of credit based uponability to remember. Propositions are put which may or may not repeat the exactwords of the written statement. The acceptance of such a proposition lays tothe foundation of inconsistency. There are often many examples which follow. Cross-examination, particularly in the County Court, is often about - what yousaid at the committal about what you said in your statement and what you saynow.

I recently appeared in the Appeal from a County Court trial inwhich counsel was cross-examining a Japanese witness through an interpreterabout what she might have said through a different interpreter at the committal.She was either intelligent enough or bold enough or so unfamiliar with our legalsystem that she volunteered the answer “I will tell you whathappened”. Counsel was not deterred, he responded “I am notinterested in what happened I am only interested in what you said at thecommittal”. One would not for a moment suggest that it is not alegitimate tool for cross-examination to test witnesses with their priorstatements, and if need be contradict them. Very much cross-examination is onthe basis of the witnesses prior consistent statements in any event. Thedifficulty is that our system which is based upon oral evidence has beenhijacked in favour of the written word. It is no longer about issues as whatthe truth might be but issues as to whether or not you can remember what yousaid on another occasion. It is interesting to note that barristers and judgesoften cannot remember what they said five minutes ago without reference totranscript. On top of that, much of the cross-examination is about marginalmatters, for instance whether the Collingwood football jumper is black withwhite stripes or white with black stripes, accompanied by the accusation thatthere is a telling difference between the two.

It is true that most accused persons do not have a positivedefence to any charge. There are three positions which arise in such cases. They are:

I simply did not do the acts complained of. I aminnocent;

I did some or all of the acts complained of but the conductdoes not constitute the crime with which I have been charged eg. consent as adefence to rape;

Either separately or in addition to the above, the Crowncannot prove the case against me.

Position (ii.) may be a claim to innocence but more often(ii.) and (iii.) are really claims to non guilt.

I am of the view that very often the way in which cases in thesecond and third categories are conducted are very much based upon what I havedescribed as “what can the witnesses remember?” It does not seem tome that the purpose of cross-examination at a committal was to allow counsel toset up credit issues based merely on that proposition. When legal aid inVictoria was limited for 2 or 3 days for a committal, it was remarkable toobserve the economy with which the committal could be conducted.

It is not to say that there were not matters to be gained fromcommittal proceedings. It is always an advantage for the Crown to know aboutits case, many strengths and weaknesses emerge. The same can be said about thedefence. The “hand-up” brief procedure served to disclose the Crowncase and subpoenae were and are used to gain other material which may or may notbe relevant. The question of whether the issue of such subpoenae is a necessaryadjunct to committal or more properly part of the pre trial procedure is moot.

If committal proceedings are going to be often used to“set up” issues of credit rather than establishing what issues theremight be, then challenge will be made to the need and purpose of suchcommittals. That is particularly so in relation to sexual offences. It is nothard to see the desirability of committals in such cases in general but if thechallenges are general why should a witness, particularly a young witness, haveto give evidence twice. There really ought to be some good reason for it. Justice is not only determined by what happens to an accused. Proof beyondreasonable doubt is not a bad start.

It was a result of such tensions that question of reform grewup in Victoria. Those from South Australia and New South Wales will be familiarwith what has happened in those States. I suspect the reforms in those Stateshave some of the same rationale. There are quite major changes which haveapplied in Victoria since 1999.

I have attached a summary of the major changes to this paper. There are substantial amendments to the Act and a new very comprehensive set ofrules has been introduced. In general the thrust of the amendments is to limitthe cross examination of witnesses to those who are actually necessary and tolimit the cross-examination to that which is relevant to the issues.

The Director of Public Prosecutions has the conduct of allcommittals in Victoria. The new legislation is very resource intensive. Theykey to committals in Victoria, for many years, has been the committal mention. It was at the committal mention that the list of witnesses required wasfinalised and a date set for committal. Those mentions were frequentlyadjourned to give the parties a chance to discuss the cases. From theprosecution point of view it often meant providing the opportunity for a CrownProsecutor to be consulted. Many cases were settled and the savingi of resourceswas great.

In the new system the committal mention is the occasion onwhich the debate takes place as to whether or not leave will be given to thedefence to cross-examine witnesses and if permitted to do so, to what extent. The defence are obliged to have filed a notice indicating which witnesses willbe the subject of an application for leave to cross-examine and “the scopeand purpose of the proposed questioning and how it is of substantial relevanceto the facts in issue” (Magistrates Court Act 1989 5^thSchedule Cl.12(1)(a) )

The criteria under which leave will be granted are set out inthe rules and the procedure is governed by the legislation. The court must notgrant leave unless satisfied:

“(a) that the evidence sought to be adduced by theproposed questioning has substantial relevanceo the facts in issue;and

(b) if the witness is under the age of 18 years, that theinterests of justice cannot be adequately served except by grantingleave.” (clause 13(4))

The criteria contained in the rules are attached.

It goes without saying that a substantial amount ofpreparation is required by the defence, the prosecution and the Magistrate for acommittal mention. It also follows that committal mentions cannot be readilyadjourned.

At the present time less cases are being settled at thatpoint. In part that relates to the fact that the focus of all involved istowards getting the question of leave right.

On the other hand, there are three cases pending in theSupreme Court challenging refusal to grant leave to cross-examine, whether anyor what relief is available is not at all clear since such action isfragmentation of the criminal process of the most fundamental kind.

It does cause the parties to think about the case and what thetrue purpose of cross-examination might be. It makes the Crown think about theimmediate strengths and weaknesses of the case. It will inevitably lead tomore “paper” committals, either because the parties do not have theresources or cannot be bothered to make application for leave or because leaveis refused. In relation to committals which do proceed at least the issues aremore defined.

One weakness which has emerged is that leave is granted tocross-examine on certain issues the Magistrate who grants leave is not theMagistrate who hears the case. Magistrates hearing cases have allowedcross-examination outside the leave which has been granted. Fairness willdictate that it be so in certain cases but if it becomes the rule rather thanthe exception the real effort which has gone into the leave application willhave been wasted.

There is a procedure at the end of committal, which ought tobe a useful one. It empowers the Magistrate who has conducted the committal toconvene, at the request of the parties, a further hearing in which the issuesbetween the parties might be refined. It is part of the procedure for theMagistrate to record any agreement for signature by the parties. There havebeen no such post committal conferences to date.

The other important post committal initiative at the moment isa pilot scheme to deal with cases where the plea is reserved at committal. Theygo into a stream which involves the concept of a case conference. The caseconference is designed so that a Judge of the County Court can convene a hearingbetween the prosecution and defence. The purpose of the conference is todetermine issues between the parties. The first part of the conference isinformal and nothing is binding on the parties. The prosecution provides a casesummary that has been settled by a Crown Prosecutor and general instructions aregiven as to the prosecution position. If agreement is reached between theparties then the matter will settle as a plea. No sentence indication is givenalthough it is possible that the Crown may give some idea of itsposition.

After the informal part of the hearing the Judge will convenethe conference formally and announce for the record such agreements as have beenreached and they will be acknowledged by the parties.

Pleas of guilty will be fixed for hearing and trials eitherwith some matters agreed or no matters agreed will be fixed for trial. Adirections hearing under the Crimes (Criminal Trials) Act 1999 will befixed a month prior to trial.

As far as can be ascertained that procedure seems to beworking very well at this stage.

In the Supreme Court under the wings of Pegasus and the ChiefJustice, the prosecution and defence are brought together and basically settlethe witness list and the pre trial issues. The trial issues will frequentlyemerge in that process (Homicide cases are somewhat simpler in that regard). Adocket is prepared for the trial Judge which sets out the witnesses, thepre-trial issues and any of the trial issues which have emerged in discussion. The details of the offences and the elements are also set out. When comparisonis made between the list of witnesses on the presentment and the list ofwitnesses actually called, the initiative has reduced the numbers verysubstantially. I believe that many of the witnesses would not have been calledbut the judicial oversight of the case about a week or ten days before trial isof immense value.

Much the same can be said for the case conference and in myview the Crimes (Criminal Trials) Act 1999. Judicial supervision at anystep in the process should not be underrated. It is by far the most substantialinfluence in the criminal trial process.

I might leave you with two questions and anobservation.

The questions are:

Do accused people want their trials heard earlier?

If an accused was told he or she could go to gaol today andhave a discount or tomorrow and have no discount, which would he or shechoose?

The Comment:

Among those of good will anything is possible

Among those of ill will nothing is possible.

(1) The defence is required to justify the claimed need tocross-examine witnesses in writing 14 days in advance of the committal mentionby identifying the scope, purpose and relevance to the facts in issue of theproposed questioning.

(2) At committal mention the defence must orallycomprehensively argue their claimed need for a witness to be cross-examined andthe prosecution will be called upon to respond in-depth.

(3) Defendants in bail or gaol cases are put on notice at theearliest opportunity that a committal proceeding will not be delayed for them toseek legal representation unless the defendant is able to show exceptionalcircumstances and that the defendant has made reasonable efforts to obtainrepresentation before the hearing.

(4) Committal mentions are held 10 weeks from date of firstremand in custody or admission to bail in all cases other than summonscases, where the committal mention is fixed to be 6 weeks from first issue ofsummons.

(5) Hand-up-briefs are to include a "List of material includedin hand-up-brief" and they must be served not less than 28 days before thecommittal mention and if service cannot be achieved on time the prosecutionshould apply in advance of the service-of-brief-date to have the originalcommittal mention date postponed. Such an application must be supported by astatement or affidavit establishing "special circumstances" for the change ofcommittal mention date.

(6) The defence must reply to the hand-up-brief and providethe D.P.P. with a copy not less than 14 days before the committal mention. If areply is not filed, the matter will proceed as a straight hand-up committal. Ifa reply is filed late (within 14 days), the court will not accept it unless itis accompanied by application and associated affidavit establishing that thereare "exceptional circumstances" as to why the reply was not filed within time. If "exceptional circumstances" are not made out the defence cannot argue forleave to cross-examine at the committal mention.

(7) If the defence propose to cross-examine a witness at acontested committal, the reply must include the witness' name and identify thescope, purpose and relevance to the facts in issue of the proposedquestioning.

(8) Committal mentions will assume far greater importancebecause of the requirement for the defence to justify in writing supplemented byoral argument why the court should give leave to cross-examine.

(9) If leave to cross-examine is not granted, the committalwill proceed by way of straight hand-up.

(10) If leave has been granted to cross-examine a witness orwitnesses, a committal date is fixed. On the day of the committal, in additionto the pre-existing constraints on cross-examination, further objection can nowbe taken if questioning strays beyond the scope for which leave was given, isrepetitive, or has no substantial relevance to facts in issue;

(11) The committal "test" is unchanged.

(12) Magistrates may now convene and conduct post-committalconferences intended to ensure the prosecution discloses the main evidence beingrelied upon; to identify matters that will require resolution before trial; toidentify any prosecution witnesses to the defence.

(13) If a defendant communicates an early desire to pleadguilty an abbreviated plea brief may now be prepared and the matter proceeds bystraight hand-up (or summary plea) at a "Special Mention".

(14) In cases where a defendant has reserved his or her pleaat committal, a pilot program is currently in place requiring that such mattersundergo a Case Conference 10 weeks after the committal date.

(15) In cases where a plea of Not Guilty is made at committal,the case heads into the "arraignment" stream and the arraignment hearing is nowcalled the "1^st Directions Hearing."