It is time for action to rein in the abuse of the Committal process in Victoria.

Therefore, with minimal disquiet, we welcome the changes proposed by the Government’s Attorney General Jaclyn Symes, as reported in the Herald Sun on the 29^th of October.

Most of our concerns lay with the failure of the Office of the Director of Public Prosecutions, and these changes, increasing the Power of that Office, may be proven detrimental to the administration of Justice in this State.

The acknowledged dichotomy of the role of that Office in determining whether prosecutions should proceed through the Committal process or whether the matter should be dealt with as a direct presentment to a Higher Court for trial seems never to be based on pragmaticism, which should be the core of the decision-making process.

The activities and performance of the Director of Public Prosecutions have never been far from controversy and, on occasion, have been operating not in the best interest of the administration of Law in this State—a view caused by a void in the rationale of the decision, accountability.

Examples where the DPP’s Office has made questionable decisions that would seem not to be in the best interest of Justice include,

• The travel rorts of two politicians.
• The decisions around the Pell matter.
• Any number of matters associated with the Lawer X fiasco.
• Decisions relating to the Red Shirts rort, and
• Aspects of the COVID Hotel Quarantine fiasco resulted in 768 deaths and 18,000 infections.

In these matters, the lack of anybody being held to account before the law, with one exception, the Pell matter, where the High Court determined that the actions of the office of the DPP had perpetrated a grave injustice, raises the suspicion that the DPP’s Office is exercising bias.

In the Pell matter, the architects of this injustice should have been held to account before the same law they attempted to manipulate for their purposes.

Another common denominator has been the conga line of key players responsible for these debacles being promoted to higher office. A cynic may argue that you need to make a mess of what you are responsible for to get ahead, ending up with people promoted to the level of incompetence.

It is no wonder that many in high office in this state were promoted despite their apparent failures and are now responsible for guiding Victoria, by any measure, into decline.

A brave and welcome change where the DPP was required to give a reason for decisions not to prosecute would go a long way to improve the accountability of that Office. That would ensure the decision is based on the Law, not some other influence.

The Judiciary are required to provide reasons for decisions, why not the DPP, as letting the light in avoids misconceptions of the office’s function.

The publication of decisions and reasons does not hamper the independence of the Courts, so it would not hamper the independence of the DPP.

The Victorian Law Reform Commission (VLRC) also called for Victoria’s Director of Public Prosecutions to take charge of more matters earlier and for police to take a back seat in prosecuting indictable offences.

For the DDP’s Office to play a more significant role, taking charge of criminal cases earlier is a retrograde step that will open up the legal system to corruption, as placing too much power in one entity inevitably creates, particularly if that entity is not accountable.

The idiom of ‘power corrupts, absolute power corrupts absolutely’ will be the inevitable outcome.

Moving from a preliminary advisory role to ‘taking charge’ is blatantly an attempted power grab and is of great concern. There appears to be no boundary to what the ‘take over’ may mean, which is very dangerous.

There has been a tendency in many serious matters to involve the DPP’s Office very early in the investigation, which makes us wonder to what end. Is that an abdication by investigators of responsibility?

It is a question of the risk to the impartiality of the investigation process that is a bother.

This is moving the role of the DPP lawyers from advisers to taking charge, which will hurt law enforcement, not enhance it. Investigators are being led to capitulation of their accountability to the Chief Commissioner in favour of the bureaucrats.

What is often conveniently overlooked in this issue is the role of the ‘Hand Up Brief’ introduced in 2009 by the Criminal Procedures Amendment Bill, and much of the media focus of that time argued that the Hand Up Briefs could eventually eliminate committal proceedings. But that would adversely impact the employment of Lawyers, so nothing was ever done.

The DPP’s office has always had the option of a Direct Presentment, but it is rarely used, and there appears to be no legal reason other than the adverse impact on Lawyer’s employment.

Removing Committals will not adversely impact the defendant’s right to a fair trial; however, it will make the legal system more efficient, reducing time served for prisoners on remand who we must remember have not been convicted of the offence with which they have been charged and the unacceptable delays in administering justice through the Courts for victims seeking closure on criminal matters. These delays are not a few weeks but can be years.

The idiom of ‘Justice delayed is justice denied’ is very apt.

Ironically, this call from the Victorian Law Reform Commission in the Herald Sun on the 31^st of October has drawn a somewhat predictable response from the Victorian Bar Council, ‘Victorian Bar warns against Victorian legal system overhaul’ is its own goal as their response in favour of the retention of this archaic legal practise exposes their bias in protecting the ‘status quo’ and Lawyers hip pocket.

Data from the Law Reform Commission website solidly supports what we all know: that the Committals process has well-passed its use-by date. And for the well-being of our legal system, it must be disposed to a safe place in history.

3.4 Each year, around 3000 criminal cases commence in the committal stream of the Magistrates’ Court and pass through some or all parts of a committal proceeding.^[237]

3.5 Of these cases, roughly:

• 30 per cent are heard and determined summarily in the Magistrates’ Court^.

A case can only be determined summarily if all indictable charges are withdrawn or discharged and a magistrate grants an application for summary jurisdiction, which, if granted, means the case will be determined according to the procedure outlined in the Criminal Procedure Act 2009 

• 30 per cent are committed to the County Court for sentence following a guilty plea.
• 30 per cent are committed to the County Court for trial, following a plea of not guilty,
• four per cent are committed to the Supreme Court. Of the cases committed to the Supreme Court, approximately 14 per cent are committed for sentence following a plea of guilty.

With 900 cases dealt with by Magistrates, which could be achieved administratively instead of a hearing, somewhere in the region of 2100 cases are committed to a higher Court or nearly 100% of all criminal committals are sent to the Higher Courts for determination.

On that matrix alone, what is the point of a committal process?

These findings, however, are an outstanding testament to the capabilities of Police investigators, the quality of their investigations, and the briefs they submit for prosecution.

There will also be some credit claimed by the prosecutors of the DPP’s Office; however, the best prosecutor cannot’ turn a purse back into a pig’s ear’, no matter how clever.

The role of the DPP should be to assess the validity of evidence presented to them by trained investigators – the Police.

A significant problem with Law reform is that the future employment advantages of Lawyers are foremost in any decision. The VLRC risks, in part, putting ‘the fox in charge of the hen house’ as the Victorian Bar Council confirms.

With approximately 3000 criminal cases to go through some form of committal proceeding each year in Victorian magistrate’s courts. Eliminating committals will save the state millions of dollars that could be directed to expanding the higher courts to improve justice overall by radically speeding up the administration of law.

The role of the DPP should be to assess the validity of evidence presented to them by trained investigators. If the Law Reform Commission has its way, it won’t be long before the DPP does investigations, which is the next logical step, and the police will be relieved of the task -. Rue the day.