We have always found the relationship between victims and the Courts an anathema.
In a civilised society, compassion for perpetrators is laudable, but the pendulum has swung so far in favour of criminals that it borders on insanity.
The Herald Sun reported ‘A new deal for Victims’ on March 18th, including 55 recommendations and findings of an inquiry by Fiona McCormack, Victoria’s Victims of Crime Commissioner.
There is a lot to like in the report; however, the problem will be the implementation of her recommendations because it tackles hitherto untouchable and archaic practices of the Courts, and the noise of the legal fraternity seeing their rivers of gold challenged will be loud and vitriolic generating spurious arguments to avoid altering the status quo.
Looking at just two of the recommendations gives an insight into why her work is so important and how ruffled the legal fraternity feathers will be.
Abolish the committal hearing process.
- Abolish court committals for some cases, prioritising sex offences and family violence,
There are about 3000 pre-trial or Committal proceedings in Victoria each year, and as best we can determine, at least 95% of those hearings commit defendants for trial.
As an estimate, discarding Committals could save over 12,000 court hours annually.
The only benefit derived from these numbers is that they assist the defence in preparing their case. Receiving a copy of the Prosecution case, the Hand-up Brief should adequately serve that purpose.
A new model must be designed to eliminate committals and the old argument that the risks to the defendant being convicted if innocent is disingenuous. There are significant checks and balances without the Committal.
In the present system, the arresting police officer must prepare a Brief of Evidence capable of providing evidence that prosecution is warranted. Senior police must approve the hand-up brief and provide the accused with a copy. The Director of Public Prosecutions then determines whether a prosecution will proceed.
The Victorian Law Reform Commission recommends,
4.3 The Commission concludes that the test for committal should be abolished and cases transferred from the jurisdiction of the lower courts by a magistrate making an order that the accused appear in a higher court for trial or sentence. Magistrates will no longer be required to apply a test for committal based on the evidence in a case. Instead, the accused should be able to apply for a discharge, and the lower courts should be empowered to discharge the accused if the Court is satisfied that there is no reasonable prospect of conviction.
4.4 An outcome of the proposed change is that the language of ‘committal’ will no longer play a role or be necessary. In place of the present test for committal, a case would move from a lower court to a higher court by an order of the lower court that the accused:
- appear for plea and sentence in a higher court on a date to be determined or
- stand trial in a higher court on a date to be determined.
McCormack’s recommendations disappointingly do not go as far as the Law Reform Commission; nevertheless, she adds weight to the argument for abolishing committals.
The Government can no longer avoid addressing this major issue, although the legal fraternity, which has a vested interest in maintaining the status quo, will substantially oppose it.
When we talk about many thousands of hours of court time, and our estimates are very conservative, addressing this issue is now urgent and must be prioritised.
Criminals are scamming the system.
What has been overlooked is the impact on Court time and the flow-on effect of long delays adversely impacting the victims as well as perpetrators.
Adjournments are the tactics of perpetrators and their Legal representative’s weapon of choice, and every excuse that can be imagined is used to gain an adjournment from gullible Magistrates.
It works like this – extending delays will often wear down the victim to convince them to withdraw their complaint. If not, when it seems any further adjournment is unlikely, a Guilty plea is entered with extenuating grief the perpetrator suffered because of the self-induced adjournments. That opens another avenue for adjournments.
These tactics clog the system and, coupled with the removal of committals, will unlock substantial court time to ensure that the legal idiom of “Justice delayed is justice denied” does not apply.
It is disgraceful that many examples of matters taking many years to process through the legal system are common, and often, not only is it Court management issues, but perpetrators scam the system with Magistrates too accommodating, allowing delays based on spurious excuses. ‘Magistrate shopping’ to achieve the result is not uncommon.
This is particularly hard and cruel in domestic matters where the person charged will avoid a court hearing by creating the need for adjournments, usually of many months, designed to break the Victim. Moreover, it often prohibits the Victim from accessing any property rights, even their own personal possessions.
It is not uncommon that because of the committal process, many victims are further scarred on top of the events that the offender perpetrated.
A sentence for being a Victim.
In one case, we know of the Victim suffering the ignominy of 14 adjournments secured by the defendant over five years. At the last adjournment hearing, the defendant asked to change his plea to guilty.
The case was again adjourned for sentencing. As reports impacting his sentence are gathered, it will be interesting to see if the perpetrator uses this process to gain further adjournments.
For five years, the victim has been in hiding, protecting her children, wearing a bracelet alarm. She is currently still in hiding and penniless because of the power the defendant has and continues to exercise over her.
The victim has suffered a sentence of 5 years of fear that has not yet been resolved. Yet it is doubtful the perpetrator will receive anywhere near this penalty for the crimes committed against her. Where is the justice in that?
The fault lies at the feet of the Law, bureaucracy, and, therefore, the Attorney General.
Specifically, the Court’s management processes, the weak, disinterested, or ideologically driven judiciary, and the need for more accountability in the legal system to rectify anomalies.
A Judicial Review Panel must be created, as in other States, to deal with the judiciary’s processes, behavioural, and performance issues at all levels with the ability to measure Judicial performance and legal balance effectively.
The current situation has evolved because of a need for more performance evaluation and accountability of the judiciary, which can be achieved while still respecting Judicial independence.
This is now a priority.