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Criticisms of committals process unfounded

Criticisms of committals process unfounded

By Karin Derkley

Courts Criminal Procedure 


Abolishing committal hearings will undermine fundamental rights in the criminal justice system and exacerbate trial delays in the higher courts by making pre-trial processes significantly longer and increasing the number of cases that proceed to trial, the LIV says.

Victoria Police and the Director of Public Prosecutions are pushing the Andrews government to abolish the committal hearing system, claiming the hearings drag on for weeks and are abused by defence lawyers as a "fishing exercise" to find ways to “get offenders off”.

But LIV Criminal Law Section Executive Committee co-chair Melinda Walker says the LIV rejects the claim that committals are used as “fishing expeditions”.

She describes as a “flagrant insult to the ethical obligations of members of the profession who appear for accused, as well as the magistracy that oversees the process” the DPP’s suggestion that committals “give the defence the opportunity to try and manufacture inconsistent statements from witnesses”.

Defence lawyers must obtain permission from the court to cross-examine a prosecution witness at a committal by identifying each issue on which the charge is defended and justifying the relevance of the cross-examination to the issue.

“To suggest a manipulation of the court process and witnesses evidence by defence lawyers is simply unfounded,” Ms Walker says.

A properly run committal hearing, which takes place in the Magistrates Court, can save weeks and sometimes months of trial time by filtering the quality of evidence and reducing the number of charges to be heard, the LIV says.

Committal proceedings are also more likely to resolve matters before they go on to the higher courts, with data from 2017-2018 showing 79.4% of guilty pleas were achieved through committal proceedings.

LIV Criminal Law Section Executive Committee member and defence lawyer Tim Freeman says committal hearings are tightly regulated proceedings which usually occupy no more than a few days in court, and often no more than a day.

"Even murder committals, where the subsequent trial may go for over a month in the Supreme Court, will often occupy less than a week of court time at the committal stage, but the benefits gained may save many days of pre-trial argument in the higher Court." he says. “Indeed, often the Committal process can resolve a criminal proceeding in its entirety.”

The proposed abolition of committals would be more likely to exacerbate the problem of delay than help it, he says. "Any time gained in the Magistrates’ Court will be largely off-set in the higher Courts as pre-trial processes become longer, and perhaps most significantly many more cases will proceed to trial as cases simply won’t resolve, increasing the backlog of cases awaiting trial in the higher courts."

The Victorian Law Reform Commission is conducting a review of the Victorian committal system, which is not due to report until March.

In its submission to the review, the LIV says committal hearings are integral to fair criminal proceedings.

"Committal hearings enable both the prosecution and defence to determine the relevance and admissibility of evidence gathered during the course of the police investigation. Additionally, the Court is able to identify those charges where there is insufficient evidence to convict the accused at trial," the submission said.

Committals play a fundamental role in disclosure not only of additional material such as police notes, diary entries or other reports not initially collected in the hand-up brief, but also from witnesses themselves in addition to their written statement, Ms Walker says.

“Statements of witnesses are often tested in committal hearings due to inconsistencies or contradictions found in other witness statements and reveal relevant and often compelling material not disclosed in a written statement. It provides an opportunity for a witness to deny, concede or explain an inconsistency.”

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