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The trade-off between fairness and efficiency

The trade-off between fairness and efficiency

By Simon Moodie


Although not perfect, the committal process is a vital link in the criminal justice system. The Victorian Law Reform Commission’s (VLRC) inquiry into Victoria’s committal system is considering whether to maintain, abolish, replace or reform it. This inquiry is not unexpected as there has been continuous pressure for change to the system. Victoria is now the only Australian jurisdiction that has cross-examination of prosecution witnesses as a standard feature of the committal process. It is unclear why, since all jurisdictions had similar committal processes up to the 1980s. In that decade, all Australian jurisdictions investigated committals. John Coldrey QC, then Victorian Director of Public Prosecutions, led the Victorian inquiry in 1985-86. The resulting Coldrey Report is an important document. It covers much of the debate around contested committals subsequently and it is useful to review it here. At that time, the committal process in Victoria was characterised by limited pre-trial disclosure, carriage by police prosecutors (rather than the Office of Public Prosecutions), lack of funding for some accused, the ability of accused to cross-examine witnesses and to require witnesses to give evidence in chief. The Coldrey Report noted the arguments for abolition of committals, including: difficulties in funding committals committals were not adequately filtering out poor prosecution cases committal hearings were used as "fishing expeditions" there were other preferable methods for disclosure. These arguments still stand in the case for abolition. The Coldrey committee agreed that while flawed, committals should be retained as a vital link in the criminal justice system. Three primary objectives could be fulfilled: filtering out inadequate prosecutions refining issues to be contested at a subsequent trial (thereby reducing its length) facilitating pleas of guilty by showing the strength of the Crown case. The committee drew particular attention to the difference between a witness statement and evidence adduced from cross-examination: Whilst the revelation of the Crown case can be accomplished administratively by the production of documents, there is a vast difference between subjecting an accused person to trial on the basis of typewritten statements of unknown reliability and presenting an accused person for trial upon the basis of evidence, the potency of which has been tested by cross-examination. Abolition of committals, the committee predicted, would see longer trials as voir dire hearings in the higher courts replace contested committals: Arguably the Crown would be creating a “paper tiger” devoid of forensic teeth and it is not difficult to predict the lengthening of criminal trials as the scene of battle is transferred from the committal to the voir dire. The committee also noted a potential disadvantage for the prosecution if contested committals were to be abolished: The Crown itself might well be disadvantaged if it is forced to conduct adversarial proceedings in the superior courts without having had the opportunity to realistically assess the viability of its own case. This highlights the fact that the committee’s unanimous recommendation to retain contested committals was not because of any perceived advantage to the defence over the prosecution. In this regard, it should be noted that the committee had representatives from the magistracy, the Bar, solicitors and the police. Retention of contested committals was useful to defence and prosecution. The committee’s recommendations included: (1) the test to commit an accused for trial should be “is the evidence of sufficient weight to support a conviction?” This was adopted and is identical to the current test; and (2) changes be made to processes for the nomination and cross-examination of witnesses. These were also adopted although further changes to these processes have been introduced since. The Criminal Procedure Act 2009 (Vic) (CPA) was a major overhaul of criminal procedure laws in Victoria but incorporated only minor changes to committals. Nevertheless, incremental changes and proposed reform to committal proceedings followed. These include the introduction in the Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic) of a more rigorous test for the granting of leave to cross-examine a witness at a contested committal, which is to tackle delays and inefficiencies in the justice system. Between 2014 and 2016 the VLRC considered the role of victims of crime in the criminal trial process in an inquiry. It made recommendations on the role of victims in committal and other pre-trial proceedings. These recommendations included legislative amendments to the Victims Charter Act 2006 (Vic), the Evidence Act 2008 (Vic) and the CPA. There has been no indication of legislative change. There was a similar process of review and reform of the committal process in other jurisdictions at the same time as the Victorian developments. A significant conference on the future of committals, organised by the Australian Institute of Criminology, was held in 1990. This conference traversed much of the same ground as the Coldrey Report but with entrenched positions stated by retentionists and abolitionists. There was little common ground, although the then head of the Commonwealth Director of Public Prosecutions, Justice Mark Weinberg, provided a balanced perspective saying committal hearings can provide significant advantages to the prosecution. These included: the ability to “learn a great deal about how a defence case will be conducted at trial from the line of cross- examination adopted at committal” that a “committal hearing may expose weaknesses in the prosecution case” thereby prompting the prosecution to strengthen the evidence before trial” that “defence submissions as to defects in the prosecution case … can be met and rectified in time for trial. All this is of immense value to a prosecutor who benefits from a second chance to get the case right”. He was not uncritical, however, noting there was a “real need for reform in some areas” and in particular “it is essential that the magistrates be given power to cut short protracted cross-examination.” The divergence in treatment of committal processes can be traced to this conference. Tasmania and Western Australia have abolished committals and moved the proceedings to the higher courts. The other states have retained some form of committal proceedings in the lower courts but have either effectively abolished (NSW) or severely constrained hearings in which prosecution witnesses can be cross-examined (South Australia and Queensland). Understanding outcomes in other states will be an important task for the VLRC but the fact that other states have made different choices should not in itself be determinative in Victoria. Supporters of contested committals, in Victoria and elsewhere, argue that they are necessary for fairness and some efficiency benefits. Opponents say the loss in efficiency caused by contested committals outweighs any purported fairness benefits. The VLRC’s position on committals, to be reported in March 2020, should be based in large part on a trade-off between fairness and efficiency. Factors to consider include: Are contested committals necessary to get full disclosure? Do contested committals cause additional or unnecessary delay? How appropriate is the test that magistrates apply with respect to committing an accused for trial, particularly given that the OPP has the power to directly indict? Do contested committals result in earlier resolution of guilty pleas or shorter and more targeted trials? Does the fact that a contested committal may mean that a prosecution witness has to give evidence twice, at committal and trial, disadvantage the prosecution or impose an unfair or inappropriate burden on such witnesses? Are there aspects of the conduct of contested committals that require significant improvement or overhaul? Some aspects of the committal system can be improved but it is not fundamentally flawed. Any future policy decisions about it should flow from recommendations out of the VLRC inquiry. They must be based on evidence, not opinion. It is critical contested committals are not abolished. While not perfect, they are a vital link in the criminal justice system. n Simon Moodie is a criminal lawyer at Stary Norton Halphen and a member of the LIV Criminal Law Section.

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