10th February 2019
Our legal system has many flaws but the one that gets no attention is the one that we should be seriously discussing and is probably the easiest to fix.
The Community Advocacy Alliance (CAA) has long advocated for the abolition of Committal Hearings for indictable offences. Successfully removed from other jurisdictions with no adverse consequences, Victoria needs to do the same.
From a bygone era (before the introduction of the hand up brief), the Committal Hearing process does not offer defendants any more protection and simply puts a step in the process that is detrimental to the offender, adds additional trauma for victims and complicates the legal system as a whole.
If somebody is charged by Police with an Indictable Offence (a serious offence that must go for trial and cannot be heard by a magistrate), there are a number of steps that the evidence must be processed through and Committal proceedings are unnecessary.
Unless the offender is arrested and charged the evidence (often referred to as the brief) must first be appraised by a senior member of the Police Force independent of the investigators to ‘approve’ the prosecution.
A copy of all the evidence against an accused person is provided to that person before any court proceedings. The ‘Hand Up Brief’ details all the evidence that the prosecution has against the accused. Effectively duplicating one of the original purposes for a Committal Hearing by ensuring the accused is aware of the totality of the accusations against them and the evidence that would be presented at a trial to support the charges, giving them ample opportunity to prepare a defence to the allegations.
Many of these committals run for days or weeks at enormous cost to the public purse as many accused persons receive legal aid. Committals often cost in real terms thousands of dollars and on that basis alone, they would fail any cost benefit analysis.
In Victoria almost all of defendants that are presented for a committal are committed for trial. If a defendant is discharged after a committal it is very unlikely the Office of Public Prosecutions (OPP) would proceed with a trial although a direct presentment is possible.
Once a defendant is committed for trial the Police are no longer the informants but purely a witnesses that can be called upon to give evidence if a trial proceeds. The role of informant and prosecutor transfers to the OPP who on assessing all the evidence will decide whether the matter will proceed to trial. If, based on the evidence, there is a likelihood that a trial is unlikely to achieve a conviction the OPP can decide not to proceed. The OPP has other considerations before a trial proceeds. A safety check valve superior to a Committal against wrongful prosecution.
There are several issues that should encourage that the Committal Process to be assigned to history.
Detention of accused on remand. The abolition of the Committal process will mean that remanded prisoners will not be held until a Committal Hearing can be scheduled, then again from when the Committal hearing is decided until their trial date. This will alleviate overcrowding in the prison system and Police cells. It is also much better for the accused who will spend much less time on remand.
Court Backlogs. This will substantially reduce the demand on Magistrates so that all Magistrates Court matters can by processed much more quickly. Relatively simple matters can take months and months to be dealt with and that does not serve the community well.
Cost savings. Apart from the obvious savings to the Courts, Police and Corrections budgets, one of the most important savings is to the Legal Aid budget. A corner stone of our legal system that ensures every person is properly represented. The savings can be put to expanding the Legal Aid function to represent victims.
There has been the occasion when a question has arisen over the innocence of a convicted criminal and that matter is dealt with as it should be by the Appeal process to ensure the integrity of our legal system. It is highly likely that each of these questionable matters went through our legal system including Committal proceedings so thereof it would have made no difference to the outcome had the Committal process not existed.
We encourage debate on this matter but hasten to add that the arguments put forward by the Legal Profession need to be viewed in the context of their pecuniary interests which they are unlikely to declare.