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Proposed reforms to criminal procedureReducing trauma and delay for witnesses and victims

Criminal Law Reviewnot

TRIM ID: CD/17/131833*Date: 28 March 2017Version: 1

DRAFT "

Contents

1 Introduction.............................................................................................................31.1.1 Scope...............................................................................................31.1.2 Abbreviations....................................................................................3

2 How are committal proceedings working in Victoria?.........................................3

3 Case management in the Supreme Court.............................................................33.1 Supreme Court proposal: flexible early case management.............................3

4 Reducing delay and stress and trauma for victims of sexual offences who are children or persons with a cognitive impairment.................................................34.1 Proposal: removal of committal hearing where the complainant of a sexual

offence is a child or person with a cognitive impairment.................................3

5 VLRC: The Role of Victims of Crime in the Criminal Trial Process....................35.1 Recommendation 39 — leave to cross-examine a victim at committal hearing35.2 Recommendation 18 — disallowance of improper questioning.......................35.3 Recommendation 19 — victim who is a witness entitled to be present in court3

6 Appeal from the determination regarding indictable offences triable summarily................................................................................................................3

7 Appendix A: Data and performance......................................................................3

8 Appendix B: Summary jurisdiction examples......................................................3

9 Appendix C: appeal from grant of summary jurisdiction............................................3

The purpose of this paper

This paper reflects the Government’s commitment to implement reforms that reduce trauma experienced by victims of crime and reduce delay in the criminal justice system.

Prior reforms to the criminal justice process have improved the early management of cases in the criminal justice system. The reduction of delay in criminal cases improves efficiency and reduces the risk of trauma and stress experienced by witnesses and victims. Minimising the number of times a witness is required to give evidence, increasing available protections for vulnerable witnesses when giving evidence, and appropriately managing questioning of witnesses also serve to better protect witnesses from stress and trauma in the criminal trial process.

Despite these improvements, there are still significant delays in criminal proceedings and there is scope for further reform to improve the experience of witnesses in the criminal justice system. As part of a number of other initiatives, the release of this discussion paper is an opportunity to make further changes to address delay and improve the experience of witnesses in the criminal justice system.

The principal objectives driving these proposals are reducing the stress and trauma suffered by victims of crime, increasing efficiency and reducing delay in the criminal trial process.

The paper contains a number of proposals for change to the law. In particular, the paper contains three proposals for significant changes to the operation of committal proceedings in Victoria. The proposals have been developed by several bodies, including the Supreme Court of Victoria, the Victorian Law Reform Commission’s Review into the Role of Victims in the Criminal Trial Process, and the Department of Justice & Regulation with input from the Director of Public Prosecutions.

The paper asks a number of questions about the proposals. The department welcomes your submissions concerning the proposals and accompanying questions. With the benefit of your submissions, the department will then provide advice to the Attorney-General regarding these criminal procedure proposals.

How to make a submission

If you wish to comment on the matters raised in this paper, you can make a written submission. If possible, please respond to the proposals and questions outlined in the paper, in addition to any other relevant matters you wish to bring to our attention.

Please email or post your submission to:

Criminal Procedure Proposals

Department of Justice & Regulation

GPO Box 4356

Melbourne Vic 3001

E. [email protected]

If you have any questions regarding the submission process, call (03) 8684 0832.

Submissions will close on 5 June 2017.

mailto:[email protected]

1 IntroductionThe objectives of criminal procedure for indictable offences include that:

courts and parties should maximise the use of each court appearance and the resources of the court, prosecution and defence should be aligned to court appearances

where a matter is appropriate to be dealt with summarily, it should be, and

where an accused will ultimately plead guilty, this should be identified at the earliest opportunity.

Following a number of inquiries, including the Victorian Parliamentary Family and Community Development Committee’s Betrayal of Trust (2013), the Victorian Royal Commission into Family Violence (2016), the Victorian Law Reform Commission’s (VLRC) Review into the Role of Victims in the Criminal Trial Process (2016) and the ongoing Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, it is clear that minimising the risk of trauma to victims caused by the criminal justice system should also be an important objective of the law on criminal procedure.

Prior reforms to the criminal justice process have improved the early management of cases in the criminal justice system. The reduction of delay in criminal cases improves efficiency and reduces the risk of trauma and stress experienced by witnesses and victims. Minimising the number of times a witness is required to give evidence, increasing available protections for vulnerable witnesses when giving evidence, and appropriately managing questioning of witnesses also serve to better protect witnesses from stress and trauma in the criminal trial process.

Despite these improvements, there are still significant delays in criminal proceedings and there is scope for further reform to improve the experience of witnesses in the criminal justice system. This paper contains proposals aimed at reducing delay and reducing stress and trauma to victims. In particular, the paper contains three proposals for significant changes to the operation of committal proceedings in Victoria. These are:

the Supreme Court’s proposal for flexible early case management

the department’s proposal to remove the limited committal hearing in sexual offence cases where the victim is a child or person with a cognitive impairment, and

the VLRC’s proposal to restrict the grant of leave to cross-examine victims at committal hearings.

These three proposals apply to different aspects of committal proceedings. It would be possible to implement any one or all of these proposals. Each proposal focuses on a different aspect of committal proceedings.

Reforms to criminal procedure require careful consideration. Procedural changes can have unforeseen effects, and, in some cases, increase delay, inefficiencies, system cost and trauma for victims. The department welcomes the views of stakeholders to ensure that any reforms that proceed are appropriately adapted to achieve the key objectives of criminal procedure.

1.1.1 Scope

This paper contains several proposals for reform to criminal procedure.

None of the proposed reforms includes a complete overhaul of the committal process for indictable proceedings. Instead, each proposes a discrete reform that can be undertaken with the aim of:

reducing delay in criminal proceedings

improving case management of indictable offence matters, and

reducing the stress and trauma experienced by victims and witnesses in the committal and criminal trial processes.

1.1.2 Abbreviations

Child Abuse Royal Commission

Consultation Paper

the department

DPP

Family Violence Royal Commission

VLRC Report

Royal Commission into Institutional Responses to Child Sexual Abuse (Commonwealth, 2013 – ongoing)

the paper

the Department of Justice & Regulation

Director of Public Prosecutions

Royal Commission into Family Violence (Victoria, 2015 – 2016)

Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process: Final Report (November 2016)

Criminal Law Review Proposed reforms to criminal procedure

2 How are committal proceedings working in Victoria?Role of committals

Section 97 of the Criminal Procedure Act sets out the purposes of committal proceedings in Victoria. These are:

to determine whether a charge for an offence is appropriate to be heard and determined summarily

to determine whether there is evidence of sufficient weight to support a conviction for the offence charged

to determine how the accused proposes to plead to the charge

to ensure a fair trial, if the matter proceeds to trial, by—

ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions

enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses

enabling the accused to put forward a case at an early stage if the accused wishes to do so

enabling the accused to adequately prepare and present a case

enabling the issues in contention to be adequately defined.

Appendix A of the paper contains a brief summary of the aims specified in section 97 against data from Court Services Victoria and the Magistrates’ Court of Victoria to assess how well the current system is operating.

In general, committal proceedings appear to be performing well at achieving several of the aims outlined in section 97, in as far as this is able to be ascertained from the available data. Of note:

a significant proportion of non-sexual offence matters (around 30%) heard in the committal list are finalised in the summary jurisdiction (Appendix A, Figure 1)

in non-sexual offence matters the average rates of identification of pleas of guilty at the time of committal of the accused is around 50% (Appendix A, Figure 4)

the rates at which leave to cross-examine (at least some) witnesses is granted are high, at over 90% (Appendix A, Figure 6)

the role of the committal hearing in determining whether there is evidence of sufficient weight to support a conviction for the offence charged remains unclear. Data indicates an extremely low number of matters are discharged at committal hearing (Appendix A, Figure 3).

Many factors relating to the quality of committal proceedings in ensuring a fair trial are unable to be analysed with reference to available data. These include:

the quality of disclosure in the hand up brief

the contribution of case management strategies to plea identification and narrowing of issues

the application of the committal test

factors particular to the practicing environment, e.g. expertise of practitioners, authority to negotiate, the influence of funding and grants of legal aid, time and system pressures.

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Issues in criminal procedure

In any proposal to change the law on criminal procedure, an outcomes focus must be maintained. As has been witnessed in many reforms in the past, focus on discrete policy issues can detract from the overall goal of criminal procedure to narrow issues in dispute and identify appropriate guilty pleas early and ensure a fair trial. A narrow focus can have significant negative effects on delay, affecting justice for victims, the accused and the community.

There have been many reviews of criminal procedure across Australia over recent decades. These reviews highlight the challenges in narrowing issues and early identification of appropriate guilty pleas. These challenges can emanate from the law, practice, administration or culture. The New South Wales Law Reform Commission recently considered these issues, again highlighting several factors that obstruct progression of cases:

the prosecution serves parts of the brief of evidence late

the defence expects further evidence will be disclosed closer to the trial

the defence believes that it is common practice for the prosecution to overcharge early, and that the charges will be reduced as the proceedings advance

the prosecution accepts a plea to a lesser charge late in the proceedings

Crown Prosecutors with the authority to negotiate are not briefed until late in the proceedings

the defence perceives the court to be flexible in the way it applies a sentence discount for the utilitarian benefit of an early guilty plea that occurred later in the proceedings

the defence is sceptical that sentencing discounts will be conferred to their client

the defence believes that they will obtain better results in negotiations that occur just prior to trial

discontinuity of legal representation means that advice and negotiations are inconsistent

the accused holds back a plea because the accused wants to postpone the inevitable penalty; denies the seriousness of his or her predicament until the first day of trial; and/or is hopeful that the case will fall over due to lack of witnesses or evidence.1

The proposals in this paper are unlikely to interact with many of these factors, except where the proposals result in trial practitioners being involved earlier in cases, which may directly or indirectly address some of these factors.

Improvements may be made through increased case management in certain matters, such as those in the proposals for the Supreme Court in Part 3, and the County Court outlined in Part 4. The proposals of the VLRC, outlined in Part 5 of the paper, include discussion of potential impacts of a restriction to the grant of leave to cross-examine witnesses on delay. The introduction of a new appeal right, proposed in Part 6 of the paper, will necessarily increase time to finalisation in matters in which an appeal is commenced. The DPP has indicated the appeal would be used by the DPP in only a limited number of cases.

1 New South Wales Law Reform Commission, Encouraging appropriate early guilty pleas, Report 141 (2015).TRIM ID: CD/17/131833*

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3 Case management in the Supreme CourtThe Criminal Procedure Act governs the procedure for indictable offences from initiation to finalisation. This procedure applies to matters that proceed in either the County or Supreme Courts. Rules and procedures made by each court further govern the process to be adopted within each court.

The introduction of the Criminal Procedure Act clarified criminal procedure laws, and provided frameworks for case management and the requirements of disclosure on the parties.

The Supreme Court has proposed amendments to the Criminal Procedure Act to provide the Court with greater case management capability from the point of initiation of a criminal proceeding.

While the Supreme Court has jurisdiction to deal with all indictable offences, in practice it exercises a discrete jurisdiction, dealing only with the most serious offences in the criminal justice system. This is predominantly fatal offences (murder and manslaughter), complex and serious fraud or drug offences and terrorism offences.

The Court takes an active approach to case management adapting processes based on the needs of each case. The intention of the proposal would be to commence managing selected cases from the point of initiation before expanding to a larger number of cases. This would allow case management approaches to be trialled and refined and the identification of case management approaches achieving the greatest efficiencies that are to be preferred in the longer term.

3.1 Supreme Court proposal: flexible early case managementThe following information about this proposal has been provided by the Supreme Court of Victoria.

Supreme Court proposal – flexible early case management

The Supreme Court proposal is as follows.

Justice is best served by bringing criminal proceedings to a conclusion within the shortest possible time consistent with fairness:

time which may be spent on remand is minimised for the accused;

events are fresher in the mind of witnesses and therefore the quality of their evidence is not diminished by delay;

the experience of victims is substantially improved; and

for those convicted and sentenced, access to rehabilitative programs is brought about sooner.

Minimising delay in the criminal justice system should therefore be the aim of all components of, and participants in, the criminal justice system.

Reforms have been introduced in the recent past which seek to reduce the length of trials (e.g. Jury Directions) and to encourage early resolution (e.g. sentence indication and statements under section 6AAA of the Sentencing Act 1991). However, some of the largest periods of delay in the system are attributable to awaiting a hearing date, effectively “queuing”.

This occurs in both the Magistrates’ Court during the committal process and then again in the higher court. The fact that this occurs twice within the course of a criminal proceeding

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significantly contributes to the overall time it takes to bring the matter to a conclusion.

The Supreme Court has therefore suggested that reforms be introduced to allow matters to be managed from the point of charge or very shortly thereafter, through to trial in the Supreme Court as a means of reducing delay (avoiding double queuing) and providing continuity of management, whilst maintaining the important processes of disclosure and testing the sufficiency of evidence to proceed to trial.

In every case, a certain amount of time is required for information to be compiled and considered by the prosecution and defence. However, beyond this time period matters are awaiting the next available court listing date.

The Supreme Court recently extracted a sample of the 84 cases finalised in 2015/2016.

The average time from charge to committal for these matters was 7.3 months. The average time from committal to final disposition for the same sample was 10.2 months.

Data provided by the Magistrates’ Court to the Victorian Law Reform Commission shows that only 46% of completed committals involved cross-examination of one or more witnesses.2 It is rare for a committal hearing which does involve cross-examination to take more than one or two days.

This points to there being considerable scope to reduce delays.

Changes in Criminal Case Management

Over the past decade there has been a significant increase in pre-trial management of cases in the higher courts. Once committed for trial, a post committal directions hearing is immediately listed and held in the higher court (usually within 24 hours) and a timetable set for the preparation of the matter for trial, including the subpoenaing of evidence, resolution of pre-trial legal and evidential issues.

There is considerable overlap between these activities and the current committal process. Each court familiarises itself with the case and each engages in a process of facilitating disclosure of relevant materials. There is therefore a duplication of effort.

A rigid separation between the committal process and pre-trial management, no longer accords with modern case management practice which aims to reduce double handling and promote continuity of management through to trial.

The recent appointment of a Judicial Registrar for the Criminal Division of the Supreme Court provides capacity for the Court to take on management of at least a proportion of cases from the point of charge.

The Western Australian model

This proposal is informed by the process which exists in Western Australia whereby the committal process is integrated within the Supreme Court. The Magistrates’ Court Stirling Gardens is located within the Supreme Court building and Registrars of the Supreme Court are appointed as Magistrates to form the Court at that venue. All persons charged with indictable Supreme Court matters appear before the Magistrates’ Court Stirling Gardens and these cases are managed through the disclosure and committal process through to trial.

This process, introduced in 2007, has been successful in reducing delay.

Although the above measures are relatively simple reforms they have some very beneficial outcomes. Defended matters are resolved much earlier and accused have a better opportunity

2 Victorian Law Reform Commission, Report into the Role of Victims of Crime in the Criminal Trial Process , No. 34 (August 2016), 210.

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of obtaining their counsel of choice. More importantly, accused who are in custody spend less time on remand, and alleged victims and secondary victims gain earlier closure. The efficiencies that flow from these reforms result in significant savings in public expenditure.3

While the committal process in Western Australia is different to that in Victoria, there is reason to believe that there is scope for similar beneficial outcomes from management of cases by the Supreme Court from the same early stage.

The Tasmanian model

It is also noted that in Tasmania amendments commenced in 2008 which altered the nature of the conduct of indictable matters. While there remains a committal process to the Supreme Court, this is essentially a formality. The essential function of the committal process in relation to examining witness has been replaced by a ‘preliminary proceeding’. This occurs after the formal committal and is ordered by the Supreme Court to take place before a Magistrate or Justice of the Peace.4 The Supreme Court determines which witnesses may be examined in accordance with the legislative criteria and the preliminary proceeding is then conducted in accordance with that order.5

Nature of the proposal

The proposal is to amend the Criminal Procedure Act to allow:

the uplift of matters from the Magistrates’ Court to the Supreme Court once charges are filed by order of the Supreme Court . This could occur at the request of a party or at the Supreme Court’s own motion

the option to file a charge directly in the Supreme Court with the leave of the Supreme Court.

case management by the Supreme Court encompassing all the usual powers of the Magistrates’ Court during the committal process, with concurrent powers to exercise the functions of the trial court under Chapter 5, and

the ability to remit matters to the Magistrates’ Court if necessary for the conduct of a committal.

The power of the DPP to file a direct indictment “at any time” as provided for in section 159(2) of the Criminal Procedure Act will remain.

The process of providing an accused with access to all relevant information held by the prosecution, the evidence to be presented at trial and the ability to test whether that evidence is sufficient for the matter to proceed, are important aspects of our justice system. Nothing in this proposal detracts from that proposition. However, the proposal does allow for this process to be carried out in different ways.

The above amendments, combined with rule amendments would allow the Supreme Court to:

manage the initial disclosure process, conduct committal proceedings before a judicial registrar and, if appropriate, commit the accused to trial. Being familiar with the matter the Court can at the same time set out the timetable for trial preparations with provision having been made for a trial date immediately following an accused being committed for trial.

manage the initial disclosure process, and if no committal hearing is required and no contest arises as to committal, allow the matter to proceed by direct indictment with a timetable for

3 Supreme Court of Western Australia website http://www.supremecourt.wa.gov.au/M/magistrates_court_stirling_gardens.aspx?uid=4946-0149-8167-1518 , accessed 5 December 2016.

4 Criminal Code (Tas) s 331B.5 Justices Act 1959 (Tas) s 61.TRIM ID: CD/17/131833*

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http://www.supremecourt.wa.gov.au/M/magistrates_court_stirling_gardens.aspx?uid=4946-0149-8167-1518


pre-trial preparation and listing of hearings to determine preliminary issues.

following filing of the charge, list and determine a preliminary legal issue by way of ruling which will determine the scope of the charges proceeding to trial or focus the preparation of the matter for trial.

Key to the proposal is that the Supreme Court is in a position to manage the case from the perspective of the ultimate trial court. This will avoid two separate case management processes and allow for a single case management process from the perspective of the ultimate trial court.

The case management processes of the Supreme Court often results in the resolution of a matter via a plea of guilty to the most appropriate charge. By allowing that process to begin at an earlier stage, the prospects of early resolution are increased.

Bringing proceedings into the Supreme Court

An amendment is proposed to allow for the Supreme Court to order of its own motion that a charge for an indictable offence which is not triable summarily filed in the Magistrates’ Court be uplifted/removed to the Supreme Court. This would be similar in some respects to the provision in section 167 of the Criminal Procedure Act which allows the Court to uplift a matter for trial from the County Court.

A further amendment would allow for charges to be filed in the Supreme Court. This would be subject to a leave requirement to ensure that the process was not used vexatiously by individuals.

Conscious of the fact that this would be a significant change in the criminal justice system, this approach would allow the piloting of the procedure with a smaller number of cases. The success of the pilot and the resources available within the Court would then determine the extent to which the procedure was expanded to, for example, all homicide cases.

The initial selection of cases would be based on matters which would ordinarily proceed to trial in the Supreme Court. It would be open to the prosecution or defence to request that the Court consider uplifting a matter. However, the Court would also seek to proactively identify suitable cases for uplift through liaison with State and Federal prosecutors, defence practitioners including Victoria Legal Aid, Victoria Police and the Magistrates’ Court.

The Court would, as a starting point, seek to establish a process whereby it is notified of all murder and manslaughter charges upon filing. Whilst not all cases may be subject to uplift initially, this process would allow case volumes to be monitored and improved capacity for forward planning for all homicide cases as these cases fall within the exclusive criminal jurisdiction of the Supreme Court.

Case Management

Once a matter is uplifted or charges filed, the proposal is that cases proceeds in accordance with the provisions of the Criminal Procedure Act, but do so in the Supreme Court. The difference would be that there would be the option to exercise both the powers of the Magistrates’ Court in relation to committal proceedings and those of the Supreme Court in relation to pre-trial management concurrently or immediately following the committal of an accuses as appropriate. There would also be the option to remit matters to the Magistrates’ Court if this became necessary. For example:

a charge may be uplifted at the request of the defence who have indicated an intention by the accused to plead guilty. The Court could give directions for the plea brief to be served, but it may be agreed that the prosecution will file a direct indictment. The plea in mitigation could be listed in the Supreme Court with directions for the filing of reports and submissions. This

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would substantially reduce the overall time taken to bring the matter to a conclusion.

a charge may be uplifted to the Supreme Court, with the Supreme Court conducting a committal mention. The Court could determine whether leave will be granted to cross-examine witnesses and list the committal hearing either before the Supreme Court (most likely before the judicial registrar), or back before the Magistrates’ Court, if this was deemed more appropriate, to be conducted in accordance with the directions given at the committal mention. If the committal is undertaken in the Magistrates’ Court a Magistrate will be able to exercise the discretion under section 132A of the Criminal Procedure Act to grant leave to cross-examine a witness, in respect of whom leave exists to cross-examine, on an issue not earlier identified.

A charge may be filed by leave in the Supreme Court where the parties are seeking an initial ruling on a question of law before the matter proceeds through the committal process as this ruling may lead to the resolution of the proceeding through a plea process or a substantial change in how the matter proceeds

The intention is to provide flexibility to adapt to the needs of each case with continuity of management by the Supreme Court as the ultimate trial court. It is considered this will reduce the time each proceeding takes to reach a conclusion by eliminating the need to revisit issues in different courts, by resolving issues early in proceedings, and by eliminating listing delays, particularly for those matters which do not proceed to a full committal hearing.

In addition to provision for filing or uplifting charges, it is proposed that amendments by made to the Criminal Procedure Act to provide that:

where a matter is filed in/uplifted to the Supreme Court it shall proceed in accordance with Chapter 4 of the Criminal Procedure Act - Committal Proceedings- subject to the below:

the Supreme Court may give directions for the matters to be remitted to the Magistrates’ Court for the conduct of the committal hearing; and

the Supreme Court may exercise powers under Part 5.5- Pre-trial Procedures- in relation to a matter before an indictment has been filed, if it would be appropriate in the interests of justice to do so. See the example above in relation to a pre-committal ruling by the Supreme Court.

As with other proposals in this paper, the Government is interested in stakeholder views on the proposal and any issues that arise.

Consultation Questions: Supreme Court Proposal

Do you support the Supreme Court’s proposal?

Are there any difficulties with the proposal which need to be addressed?

What further amendments might be required to facilitate the proposal?

Are there any additional matters that need to be considered in relation to the application of this proposal to regional courts?

Are there any resourcing implications for this proposal for the prosecution and defence?

Where, following the filing of a direct indictment, the Supreme Court considers the balance of justice lies in favour of ordering a committal proceeding, would it be desirable to indicate whether Chapter 4 of the Criminal Procedure Act applies to the proceeding and whether any modifications to this committal proceeding are required?

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Are there any particular problems that may arise from, or difficulties that need to be addressed, in relation to the transfer between the jurisdictions of the Magistrates’ Court and the Supreme Court? Are any legislative mechanisms necessary to ensure seamless transitions?

The Magistrates’ Court deals with many matters related, or connected, to committal processes (e.g. bail applications, DNA orders, disclosure related processes). Are there any issues relating to these matters that need to be considered in the context of this proposal?

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4 Reducing delay and stress and trauma for victims of sexual offences who are children or persons with a cognitive impairment The Criminal Procedure Act includes a matrix of protections for children and persons with a cognitive impairment who are complainants in certain cases. Some of these protections apply to committal proceedings, including:

a requirement that a committal proceeding must be determined within two months after the last committal mention6

a prohibition on the cross-examination of a child or person with a cognitive impairment at a committal hearing, where the child or person is a complainant in a proceeding for a charge of a sexual offence, and a statement or transcript of recorded evidence-in-chief or examination at a compulsory examination hearing was served in the hand up brief7

requiring the Court to consider additional factors when determining whether leave is to be granted to cross-examine a witness under the age of 18. These include both therapeutic considerations (e.g. trauma or disability) and forensic considerations (e.g. strength of case or issues in dispute),8 and

providing for the admissibility of recorded evidence-in-chief of children and persons with a cognitive impairment who are victims of sexual offences, assault or injury offences.9

Need for improvement

While the combined effect of these provisions is to provide greater protection to children and persons with a cognitive impairment in select criminal cases (predominantly sexual offence cases), there may be a further opportunity to reduce delay in these matters and to use resources more efficiently. Despite the two month time limitation, extensions may be granted and the committal process can take several months. Significantly, pre-trial examination of witnesses then occurs at two separate events, one connected with the committal hearing and the other with the trial. This has significant resourcing issues, given the preparation required for each hearing and increases the risk that some pre-trial examination will not be conducted by trial counsel.

There remain strong reasons for prioritising sexual offence matters where the complainant is a person with a cognitive impairment or a child. While the potential vulnerability of all witnesses is acknowledged, children and persons with a cognitive impairment are more likely to suffer the harms of increased delay in criminal proceedings. The evidence of complainants of child sexual offences was the focus of research commissioned by the Child Abuse Royal Commission.10 The research noted that, due to their age and level of development, child complainants are particularly vulnerable to the negative effects of anxiety and stress in diminishing the quality of their evidence.11 Possible sources of stress noted in the research include giving evidence in a foreign courtroom setting, the unanticipated challenge of questions in cross-examination and being subject to an extensive and lengthy cross-examination.

One of the findings of this research was that ‘problems with delays in proceedings and the lack of a streamlined prosecution process may increase the anxiety, stress and fatigue a complainant experiences and reduce the reliability of the evidence they can give’.12

6 Criminal Procedure Act 2009 (Vic) s 99.7 Criminal Procedure Act 2009 (Vic) s 123.8 Criminal Procedure Act 2009 (Vic) s 124(5).9 Criminal Procedure Act 2009 (Vic) division 5 of Part 8.2.10 Martine Powell, Nina Westera, Jane Goodman-Delahunty and Anne Sophie Pichler, An evaluation of how evidence is

elicited from complainants of child sexual abuse (Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016).

11 Ibid, 11.12 Ibid, 8.TRIM ID: CD/17/131833*

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Additionally, due to the staggered process, counsel may change between the committal court and the trial court (e.g. due to scheduling issues when matters are listed for trial, or because of the lower fees that apply in committal proceedings). This means there is a duplication of legal preparation work in each court, and opportunities to narrow issues in dispute and identify appropriate guilty pleas early may be missed.

During this time, the complainant child or person with a cognitive impairment must wait for the matter to be transferred to the trial court, where they will be cross-examined in a special hearing and finalise their role in the proceeding. The special hearing may be critical to whether there is a resolution in the case, which is unlikely to be determined by the examination of other witnesses at committal hearing.

The committal hearing increases delay in cases in which the passing of time has been shown to affect the quality of evidence, and prolongs the period before which resolution of the case occurs and the child or person with a cognitive impairment can fully devote themselves to rehabilitation.

4.2 Proposal: removal of committal hearing where the complainant of a sexual offence is a child or person with a cognitive impairmentThis proposal is to remove the limited committal hearing in cases where the complainant of a sexual offence is a child or a person with a cognitive impairment.

Proposal: Removal of committal hearing where the complainant of a sexual offence is a child or has a cognitive impairment

It is proposed to amend the Criminal Procedure Act to provide that where:

a proceeding relates (wholly or partly) to a charge for a sexual offence, and

the complainant of the offence was a child or person with a cognitive impairment when the proceeding commenced

the Magistrates’ Court cannot grant leave to cross-examine witnesses.

The Magistrates’ Court would still conduct most aspects of committal procedure under Part 4 of the Criminal Procedure Act, such as bail and remand, disclosure, initial case discussions and grant or deny summary jurisdiction for indictable matters triable summarily. The proposal would retain the role of Magistrates to determine a committal proceeding with the discharge of cases for inadequate evidence.

However, the committal hearing process, under which witnesses are available for cross-examination by the accused’s lawyer, would not be available for sexual offence cases in which the complainant is a child or has a cognitive impairment.

The removal of cross-examination of witnesses at committal hearing would refocus the committal process for these matters on disclosure, identifying case direction, and on the committal determination on the papers.

Further disclosure in the form of pre-trial oral evidence could occur in the trial court, where it can be properly case managed in the context of the issues relevant to a trial or plea.

Pre-trial examination of witnesses

The proposal does not remove the ability of the accused to apply for leave to cross-examine prosecution witnesses prior to trial. Instead, it moves this process to the trial court.

The resource implications of shifting pre-trial cross-examination to the trial court are less significant in sexual offence cases involving children or persons with a cognitive impairment. As

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sexual offending predominantly occurs in private, there are usually not many witnesses in addition to the complainant. Additional witnesses are usually confined to any witness to the complainant’s report of sexual offending, medical professionals, forensic experts and investigating police officers.

There are three circumstances in which a court may order that the evidence of a person be taken after the committal of an accused but prior to the commencement of a trial.

Following a committal hearing, the Magistrates’ Court may order pre-trial examination of witnesses under section 150 of the Criminal Procedure Act. Section 150 permits the Magistrates' Court to make an order permitting examination of a witness in circumstances akin to a committal hearing in certain circumstances (e.g. where the witness did not give evidence at a committal hearing or did not make a statement that was admitted at the committal proceeding).

The Supreme and County Courts have the capacity to order pre-trial examination of witnesses under:

section 198 of the Criminal Procedure Act (order for taking evidence from a witness before trial), or

the common law Basha hearing process.13

The Criminal Procedure Act does not specify when an application should be made in the Magistrates’ Court under section 150, or in the trial court under section 198 or the common law. However, the section 150 process should be available until the County Court is formally seized of the matter— after that time section 198 is a more appropriate vehicle. When the Criminal Procedure Act was introduced, it often took many months before a directions hearing was held and an indictment filed (for non-sexual offence matters). However, that has changed following the introduction of the 24 hour initial directions hearing in the County Court (and post-committal directions hearing in the Supreme Court). There is now, in most cases, a very limited window (if any) in which the process outlined in section 150 would be most appropriately utilised in the Magistrates’ Court.

In the trial courts, a party (prosecution or the accused) may make an application for an order under section 198 in several circumstances, including where the witness was not available to be examined at the committal hearing.14 If the proposal is adopted, there may be a need to specify that this excludes the complainant child or person with a cognitive impairment (who will be cross-examined at a special hearing), but includes other witnesses.

The court must not grant an order under section 198 unless it is in the interests of justice that the evidence of the witness be taken.15 The ‘interests of justice’ test in section 198 may allow for broader uses of pre-trial questioning than is possible under the Basha test. A Basha is not to be granted as a matter of course,16 and the test is directly linked to a fair trial.

This raises the question of whether the proposed removal of committal hearings for certain matters would mean that it would be preferable to codify all or much of the Basha hearing process and integrate, or clarify, the interaction between the three different pre-trial examination processes. This would also provide an opportunity to provide a more suitable name than a ‘Basha hearing’ where this description is used in court or by the parties, as it may send (unintentionally) an inappropriate message to a witness who is to be examined at such a hearing.

13 R v Basha (1989) 39 A Crim R 337 (Basha).14 Criminal Procedure Act 2009 (Vic) s 198(2)(a).15 Criminal Procedure Act 2009 (Vic) s 198(4).16 Williams & Ors v DPP [2004] VSCA 516.TRIM ID: CD/17/131833*

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Matters relevant to whether leave may be granted for cross-examination at committal under section 124 include, for example, that matters relevant to a potential plea of guilty are clarified.17 This is unlikely to justify the granting of a Basha hearing, although it would have clear benefits in reducing delay and victim stress and trauma if it assists in identifying early appropriate guilty pleas or if it removes the need for a contested hearing to determine a factual basis for sentencing (although it would be rare for counsel to explicitly state this).

Issues of inadequate disclosure in the absence of cross-examination could be argued in the context of the particular case when determining whether a witness should be made available. Depending on the process adopted by the County Court, this may be argued before the trial judge, who would be aware of particular issues in the case and can engage in pre-trial case management to narrow issues for trial.

Time limits for commencing trials for sexual offences

Sexual offence trials are required to commence within three months after the day on which the person is committed for trial in respect of the offence.18 Any pre-trial examination undertaken will need to be factored into compliance with these time limits, subject to any extension of time that is approved by the court.19

As there is an existing process in place for extensions of time, and the intention is to reduce delay in sexual offence matters involving children and persons with a cognitive impairment, it is not proposed to amend the time limit for these trials.

While this may not pose issues for a standard trial, it would be more challenging in matters in which multiple child or cognitively impaired complainants have been joined on one indictment, and where there are numerous secondary witnesses.

Consultation Questions: removal of committal hearing where the complainant of a sexual offence is under 18 years of age or has a cognitive impairment

Are any negative effects likely as a result of moving pre-trial examination to the trial court in the specified circumstances?

What are the resourcing implications of this proposal?

Are any particular case management practices necessary in either the Magistrates’ Court or the trial courts to ensure a focus on narrowing issues and identifying appropriate guilty pleas is not reduced by the delay in witness examination?

Is it necessary to clarify that section 198(2)(a) of the Criminal Procedure Act (which provides a relevant consideration is whether a witness was available at committal hearing) does not include a complainant who is a child or person with a cognitive impairment, but includes other witnesses who are made unavailable by virtue of this proposal?

Should the Criminal Procedure Act be amended to:

(a) provide more clearly for the different circumstances in which a witness may be cross-examined under section 150 (post-committal) rather than section 198 (pre-trial)?, and

(b) codify the Basha hearing and when it applies rather than section 198?

17 Criminal Procedure Act 2009 (Vic) s 124(4)(e).18 Criminal Procedure Act 2009 (Vic) s 212.19 Criminal Procedure Act 2009 (Vic) s 247.TRIM ID: CD/17/131833*

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5 VLRC: The Role of Victims of Crime in the Criminal Trial Process The VLRC’s Report20 makes several recommendations aimed at reducing stress and trauma experienced by victims in the criminal trial process. The Government has made some announcements concerning the VLRC report and is currently considering the remaining recommendations.

Recommendations 37, 38 and 40 propose creating a new class of witness, termed a ‘protected victim’, for whom recorded evidence-in-chief, special hearings, a prohibition on cross-examination at committal hearing, and alternative arrangements for giving evidence would be available. A ‘protected victim’ refers to ‘victims who are likely to experience unnecessary trauma, intimidation or distress as a result of giving evidence.’21 The VLRC notes that all victims may be vulnerable to experience of trauma or distress during the criminal trial process. This is a different approach to that taken in the Criminal Procedure Act, in which different procedural protections apply to certain classes of vulnerable witnesses, such as children and persons with a cognitive impairment or victims of sexual offences. The VLRC’s recommendations on ‘protected victims’ are being considered separately to this paper.

The VLRC Report also makes recommendations that relate to the experience of all victims during the criminal trial process, whether they fall within the ‘protected victim’ category or otherwise. This includes:

amending the Evidence Act 2008 to require a court to disallow improper questioning of a victim (recommendation 18)

amending section 336A of the Criminal Procedure Act to remove the clarification that there is no restriction on a court ordering a victim to leave court at any time after giving evidence (recommendation 19), and

introducing a new test for leave to cross-examine a victim at a committal hearing (recommendation 39).

The department seeks your views on these recommendations below.

5.1 Recommendation 39 — leave to cross-examine a victim at committal hearingThe proposal in Part 4 of this paper relates to a small proportion of matters committed for trial in the County Court — sexual offence cases where the accused is a child or person with a cognitive impairment. Even if this proposal is adopted, the majority of indictable matters will still proceed through the standard committal process before being committed for trial.

This leaves the remaining issue of stress and trauma experienced by victims who are subject to cross-examination at a committal hearing.

In addition to specific recommendations applying to ‘protected victims’,22 the VLRC recommended reforms to the availability of witnesses for cross-examination at a committal hearing that would apply to all complainant witnesses.

VLRC Recommendation 39

Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the Magistrates’ Court must not grant leave to cross-examine a victim at a committal hearing

20 Victorian Law Reform Commission, above n 2.21 Ibid, 203.22 Victorian Law Reform Commission, above n 2, 203 [8.45].TRIM ID: CD/17/131833*

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except on a matter that relates directly and substantially to the decision to commit for trial. The test for granting leave should include reference to whether the victim is able to and wishes to be cross-examined at a committal hearing.

The VLRC noted that more significant reforms, such as abolishing the committal process, or introducing a prohibition on the cross-examination of a victim at committal, would be beyond the scope of their terms of reference, and may result in considerable resource implications or reduce the fairness of the criminal trial process.23

The VLRC considered that the wording of the leave test, being ‘on a matter that relates directly and substantially to the decision to commit for trial’, encapsulated the New South Wales ‘special reasons’ test, but ensured that leave would not be granted in a broader range of circumstances than anticipated.24 The special reasons test also applies in South Australia.

It appears that the VLRC proposal is directed at one aspect of the ‘special reasons’ test, which is whether ‘there is a real possibility the accused will not be committed’ as a result of the proposed cross-examination.

Aim of the reform

The aim of the VLRC’s reform is to limit cross-examination of the victim at committal. It does not limit cross-examination of a victim pre-trial or at trial.

The VLRC noted:

Cross-examination at a committal hearing is often described as worse than at the trial.

Material gathered by the Commission suggests two reasons for this:

victims cannot tell their story through evidence-in-chief. Rather, their statement is tendered to the magistrate and they are subject only to cross-examination.

the manner of questioning by the defence is not constrained by the presence of a jury. As a result it may be more oppressive or intimidating.25

These two factors are replicated in the trial courts when engaging in pre-trial cross-examination of victims. If the focus of the reform is simply on limiting the number of times that evidence is given in order to reduce the risk of trauma to victims, it is unlikely to achieve this for all victims. If genuine issues warranting cross-examination exist, then pre-trial cross-examination is likely to be granted.

However, pre-trial examination in the trial courts is likely to be more targeted to the issues in the trial (because the examination is conducted by trial counsel), and the manner of questioning may differ if undertaken in front of the trial judge.

Potential effect of the proposal for trial courts

Argument regarding pre-trial cross-examination of victim witnesses would occur in the trial court. Where ordered, pre-trial cross-examination of the victim would occur in front of a judge of the trial court, or, if the proposal of the Supreme Court outlined in Part 3 above proceeds, before a Judicial Registrar in the Supreme Court.

There are already restrictions on the availability of victim witnesses for cross-examination at committal in sexual offence cases involving a complainant who is a child or a person with a cognitive impairment. If the proposal in Part 4 of this paper proceeds, this would mean that all pre-trial examination in these cases would occur in the trial court (most commonly the County Court). A further limitation on the grant of leave to cross-examine victims who are witnesses at a committal hearing would have additional resourcing implications for the County Court. The

23 Ibid, 208.24 Ibid, 209.25 Ibid, 207.TRIM ID: CD/17/131833*

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Supreme Court in its criminal jurisdiction deals predominantly with fatal offences, although, as noted above, it also hears some serious drug and fraud matters. In the Supreme Court, the principal effect of limitations on the grant of leave to cross-examine victims who are witnesses would be on fatal offence matters in which family members of the deceased are witnesses in the prosecution case. This would depend on the evidence in the particular case, noting that approximately 40% of all deaths attributed to homicide in Victoria occur between parties in an intimate or familial relationship.26

It is notable that there are very low rates of cross-examination of witnesses at committal hearing in South Australia and New South Wales. These jurisdictions have a stricter leave test than Victoria. Possible explanations for the low rates of cross-examination include:

the interaction of the stricter leave test with the a merit test for grants of legal aid means that committal hearings in those jurisdictions are rarely applied for in legally aided criminal cases.

that in decisions about the scarce allocation of legal aid resources, funding for legal aid for committal hearings is not a high priority and is therefore rarely applied for

as committal hearings become less common in practice, legal culture adapts and the focus shifts to other parts of the system to improve prosecution disclosure processes, or

a combination of the above factors.

Limitations in the availability of legal aid appear to have been a factor in Western Australia, where, prior to their abolition, committal hearings were largely utilised in privately funded cases.27

The use of leave tests in the grant of cross-examination

Attempts to limit the use of cross-examination at committal hearing have had mixed results in Victoria.

In 1999, legislation was passed to restrict the cross-examination of witnesses at committal hearings with the introduction of a strict leave test primarily through Magistrates’ Court rules. The new test had a counterproductive effect, by focusing parties on the issue of whether leave would be granted (and arguments for and against) in relation to each proposed question, at the expense of identifying pleas and narrowing issues for trial. The adversarial nature of the contest for leave to cross-examine increased delay and reduced system efficiency.

Subsequent reforms simplified tests for cross-examination of witnesses at a committal hearing, and placed obligations on parties to enter into discussions at an early stage.

In 2014, reforms in the Criminal Organisations Control and Other Acts Amendment Act 2014 strengthened the case management role of the Magistrates’ Court in granting leave to cross-examine witnesses at committal. The reform amended the test for leave to ensure it applied regardless of whether the informant consented to a witness being cross-examined. This was intended to result in a greater focus between the prosecution and accused’s lawyers on narrowing issues and reaching agreement as to relevant witnesses for whom leave to cross-examine is sought. Magistrates must now ensure that the test in section 124(3) of the Criminal Procedure Act is satisfied for all witnesses before leave is granted.

26 Coroners Court of Victoria, ‘Submission to the Royal Commission into Family Violence 2015’ to Victoria, Royal Commission into Family Violence (2015) vol 1, ch 2, 41.

27 See Office of the Director of Public Prosecutions (WA), ‘A Review of the Role of the Director of Public Prosecutions in the Perth Court of Petty Sessions 1997’ (Office of the Director of Public Prosecutions (WA) 1997) 8. The DPP estimated that 86 per cent of defendants who proceeded to a preliminary hearing (the equivalent of a committal hearing) had private legal representation.

TRIM ID: CD/17/131833*

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Test for leave to cross-examine a witness

The test proposed by the VLRC adopts one aspect of the New South Wales ‘special reasons’ test, focusing on the decision to commit for trial.

The New South Wales test requires ‘special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.’28 It applies to witnesses who are victims of sexual or violent offences. A similar test is also in place in South Australia,29 where it initially applied to victims of sexual offences, but has since been expanded to all witnesses. In South Australia, there is an additional test applying to victims of sexual offences, witnesses who are children aged under 14 or witnesses with a cognitive impairment. In these cases, leave may only be granted if the court is satisfied that the interests of justice cannot be adequately served except by doing so.30

The ‘special reasons’ test is focused on limiting the availability of cross-examination of the complainant at committal.31 Although the test is applied to the particular circumstances of each case, a body of case law explores circumstances in which special reasons may or may not exist. This can include similar considerations to the Victorian test, such as inadequate disclosure and the need for the accused to know the case against him or her.

In South Australia, the test has been interpreted strictly, and results in a low rate of grant of leave for cross-examination.32 The test as applied emphasises the prioritisation of fulsome disclosure by way of the brief of evidence:

Proof of facts by means of written statements is the norm and special reasons involve some facts or circumstances which require a departure from that norm having regard to one or more of the indicated criteria. A desire for cross-examination for the purpose of affecting the credibility of a witness in the eyes of the court conducting the hearing, is not sufficient… Such disadvantage as the defence may suffer in consequence of being deprived of the opportunity of cross-examining a witness twice and thereby testing the witness’s ability to tell a consistent story, is not sufficient, as that would not be a sufficient departure from the norm to amount to special reasons. A desire to conduct an exploratory cross-examination without a definite object based on solid grounds, but in the hope of unearthing something which might assist the defence, is plainly not sufficient.33

The VLRC considered that the ‘special reasons’ test should be further narrowed to avoid it being interpreted broadly, and instead proposed that cross-examination be restricted ‘except on a matter that relates directly and substantially to the decision to commit for trial’.34 Under the ‘special reasons’ test, this consideration is expressed differently, as to whether there is ‘a real possibility the accused will not be committed’ as a result of the proposed cross-examination. In Victoria’s existing test for leave, this is expressed in section 124(4)(c), which refers to the need to ensure that the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged. This represents the committal determination in Victoria.35

It is difficult to consider how the test would apply in Victoria. Reasons for requiring a witness for cross-examination may be persuasive in sexual offence cases, in which the complainant is the principal or sole witness with evidence relating to the alleged commission of the offence, and on whose evidence the decision to commit therefore rests. It may also be highly relevant in family violence cases, where violence has been perpetrated in the family home with few witnesses. However, the credibility rule in the Evidence Act 2008 applies to committal hearings,36 and cross-examination should not be granted to use the committal hearing solely as an opportunity to test witness credibility. Further, where self-defence is claimed, this will usually depend upon the

28 Criminal Procedure Act 1986 (NSW) s 93.29 Summary Procedure Act 1921 (SA) s 106(2).30 Summary Procedure Act 1921 (SA) s 106(3).31 B v Gould (1993) 67 A Crim R 297, 303-304 (Studdert J).32 Low rates of leave may also be the result of very limited legal aid being available for committal proceedings.33 Goldsmith v Newman and the State of South Australia (1992) SASR 404, 410 (King CJ).34 B v Gould (1993) 67 A Crim R 297, 303-304 (Studdert J).35 Criminal Procedure Act 2009 (Vic) ss 128 and 141(4).36 See Criminal Procedure Act 2009 (Vic) s 124, n 1 and 2.TRIM ID: CD/17/131833*

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evidence that a jury accepts or rejects and therefore not be a matter where the evidence leads to a magistrate discharging for failing to satisfy the committal test. Unless some other issue can be identified, such as inadequacy of evidence relating to whether the elements of the offence can be established, the test may successfully limit the availability of the complainant for cross-examination at committal hearing.

Victim’s wishes and ability

The proposal also involves considering the victim’s wishes about whether they are to be cross-examined at a committal hearing, and whether they are ‘able to’ be cross-examined. This introduces a complex set of considerations to the decision to refuse or to grant leave to cross-examine.

There may be very different reasons that victims do not wish to give evidence at a committal hearing.

There are victims who will experience stress and trauma from the process of examination and cross-examination, as it necessarily requires them to revisit traumatic events. This is more likely to be the case for victims of offences against the person (violent and sexual offending). However, as noted by the VLRC, the type of offending is not determinative of a victim’s experience of trauma.

For many people, the prospect of giving evidence in court is stressful, even when questioning does not seek to discredit the witness. For the majority of people unfamiliar with court processes (civil or criminal) the process of examination and cross-examination is unfamiliar and jarring.

And for some witnesses, the criminal process is not perceived as distressing, but as an inconvenience. Committal hearings may require a witness to be available for several days, depending on the anticipated length of cross-examination and progress with other witnesses. For witnesses who are employed, caring for children or who have to travel a distance to court, the process may be an inconvenience they would rather avoid.

The VLRC also recommended that the test for leave have regard to whether a victim was ‘able to’ give evidence. It is not clear what was meant by this aspect of the test, particularly in respect of victims who may fall within the proposed new category of ‘protected victim’, discussed above.37 It may reflect that the test for leave only applies to those for whom leave to cross-examine may be granted under the legislation, for example, not to complainants of sexual offences who are children or persons with a cognitive impairment. The discussion in this paper proceeds on this basis.

Existing considerations for child witnesses

The Criminal Procedure Act provides that certain considerations should be taken into account for child witnesses when determining if leave is to be granted for cross-examination.38 These are:

the need to minimise trauma that might be experienced by the witness in giving evidence39

any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding, and40

any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the court is aware.41

37 Victorian Law Reform Commission, above n 2, Chapter 8: Protection.38 Criminal Procedure Act 2009 (Vic) s 124(5).39 Criminal Procedure Act 2009 (Vic) s 124(5)(a).40 Criminal Procedure Act 2009 (Vic) s 124(5)(b).41 Criminal Procedure Act 2009 (Vic) s 124(5)(c).TRIM ID: CD/17/131833*

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In addition to these factors, the Act lists broader forensic factors such as the existence of evidence corroborating the witness’s evidence.42 The issues outlined above in relation to requiring the court to undergo a complex balancing task of forensic and protective factors may be relevant to the consideration of these factors. However, it is not clear if these have been significant issues in practice.

One benefit of this model is that it applies to a class of witnesses (children), about whom it is broadly agreed there exists particular vulnerability to trauma. The court may consider these factors broadly in determining whether leave should be granted. Health information, such as disability, is only relevant in so far as the court is already aware of it, or it is apparent from the witness’s evidence.

Discussion

The application of the test for grant of leave that proposed questioning relates to ‘a matter that relates directly and substantially to the decision to commit for trial’ may result in greater restriction of the cross-examination of victims at committal.

However, the proposal of the VLRC that the test apply to all victim witnesses, rather than being a typical factor for the court’s consideration, may require the court to look beyond the victim’s wishes against the background of possible reasons they do not wish to give evidence. It also requires the weighing of the victim’s wishes against forensic considerations when applying the proposed test—whether the victim’s evidence directly and substantially relates to the committal determination. The weighing of these matters is a complex task, which may place the court in the position of overriding either the victim’s interest in avoiding trauma, or the accused’s interest in having the prosecution case disclosed and tested.

It does not appear to be the aim of the proposal to give expression to the wishes of victims who find the criminal process an inconvenience. If the victim’s wishes are to have a role in assessing whether leave should be granted, some assessment would need to be made of the reasons for the victim’s wishes, and any particular vulnerabilities of the witness.

If mental health or medical matters are raised in arguing that a victim should not be required to give evidence at committal hearing, it may result in disclosure of information that the victim would rather keep private, or is properly the subject of the confidential communications privilege and accompanying process.43 Without this information, the wishes of the victim not to give evidence may later be the subject of cross-examination to discredit the witness, noting the victim’s unwillingness to subject the offence allegations to scrutiny.

While the application of the VLRC proposal to all victims reflects the potential for trauma or stress to be experienced by all victims in the criminal trial process, it does not acknowledge the historically different experience of victims of sexual offences and family violence offences — evidenced by attrition rates during the criminal trial process. The approach of specifying classes of victims based on offence type may provide more clear delineations of vulnerability and risk of trauma than the treatment of all victims as a unified class.

The existing application of section 124(5) may provide a useful comparator for the consideration of the risk of trauma to a witness, and of factors personal to the witness on the face of the evidence in the hand-up brief, in the determination of whether to grant leave. However, this does not involve an enquiry into the victim’s wishes, and notably, child victims of sexual offences (the most common form of offending against children) are already unavailable for cross-examination at committal.

The sexual offences list and the committals list in the Magistrates’ Court are busy lists and changes to the grant of leave to cross-examine may impact on resourcing in the Magistrates’

42 Criminal Procedure Act 2009 (Vic) s 124(5)(d) – (j).43 See Evidence (Miscellaneous Provisions) Act 1958, Part II Witnesses.TRIM ID: CD/17/131833*

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Court. The introduction of a more adversarial leave process might require additional sittings to allow time for argument regarding witnesses. Greater case management may be necessary to ensure that any change to the committal hearing does not delay discussions between parties and reduce opportunities for the early identification of appropriate guilty pleas. However, limitations on the availability of victim witnesses for cross-examination at committal hearing may result in shorter committal hearings and free up additional resources for the Court to devote to case management.

Any reform must maintain an outcomes focus — on narrowing issues and identifying appropriate guilty pleas early — or it may be counterproductive to the aim of reducing victim trauma.

Consultation questions: VLRC recommendation 39

Should Victoria introduce a new leave test for the cross-examination of complainants at committal hearing, in the terms proposed by the VLRC?

Should any restriction apply to all victims, victims of certain classes of offences, or all vulnerable witnesses?

Should any restriction apply only to the grant of leave for committal, or also to examination of a witness under sections 150 and 198 of the Criminal Procedure Act or at a Basha hearing?

Should a victim’s wishes about cross-examination have a role in determining whether they may be cross-examined at a committal hearing?

Are there alternative tests for granting leave for cross-examination which might be appropriate?

Should alternative options to the VLRC recommendation be considered? For example:

making the complainant unavailable for cross-examination at committal hearing, but available in the trial court through a Basha inquiry or section 198 of the Criminal Procedure Act

introducing considerations related to reducing victim trauma and considering victim wishes to the existing determination of whether to grant leave to cross-examine in section 124 of the Criminal Procedure Act

adapting the considerations in section 124(5) of the Criminal Procedure Act to apply to all victims or to certain classes of victims?

5.2 Recommendation 18 — disallowance of improper questioningThe VLRC noted that perceptions of the occurrence of improper questioning in criminal trials differs.44 Because of the nature of cross-examination, questioning that is not improper may still be upsetting for the victim. However, the VLRC found that the perception of some victims, victim support workers, members of the legal profession and members of the judiciary was that judicial intervention was not adequate and sometimes improper questioning occurs. Other members of the legal profession stated that the manner of questioning had changed, and the Victorian Bar and Criminal Bar Association stated that judicial officers were enforcing existing protections.

The VLRC noted the law in the uniform evidence jurisdictions of New South Wales,45 the Australian Capital Territory46 and Tasmania47 requires the disallowance of an improper question

44 Victorian Law Reform Commission, above n 2, 96 [5.49 – 5.52].45 Evidence Act 1995 (NSW), s 41.46 Evidence Act 2011 (ACT), s 41.47 Evidence Act 2001 (Tas), s 41.TRIM ID: CD/17/131833*

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put to a witness. South Australia, which is not a uniform evidence jurisdiction, also has this restriction.48

In Victoria, the court may disallow an improper question put to a witness, whereas an improper question put to a vulnerable witness must be disallowed.49

The equivalent provision in the Northern Territory’s uniform evidence law mirrors this distinction between vulnerable witnesses and other witnesses.50

The VLRC recommend that Victoria’s law on improper questioning, at least in relation to victims, be aligned with that of New South Wales, Tasmania and the Australian Capital Territory.


Section 41 of the Evidence Act 2008 (Vic) should be amended to require a judicial officer to disallow improper questioning in relation to all victims, in accordance with the Uniform Evidence Act provisions adopted by New South Wales, Tasmania and the Australian Capital Territory insofar as they relate to victims.

‘all victims’

In New South Wales, Tasmania and the Australian Capital Territory the restriction on improper questioning applies to the questioning of all witnesses.

The VLRC recommendation is that the Victorian evidence law should be amended to limit the questioning of ‘all victims’, meaning all victims who are witnesses. The Commission noted that the limited scope of its recommendation was due to its terms of reference, which relate to the role of the victim and not to witnesses generally.51

Application of section 41, Evidence Act 2008

There is limited case law on the application of section 41 of the Evidence Act 2008.

The Court of Appeal has considered the tension that may arise for counsel when questioning to fulfil their professional duties (such as the rule in Browne v Dunn), as well as ensuring compliance with section 41. However, the Court acknowledges that the tone and content of questioning can ensure that such duties can be performed without being unnecessarily or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.52

The possible reform to certain professional duties, or greater judicial involvement in framing and approving questioning in sexual offence cases, is being considered by the Child Abuse Royal Commission.53

Case law does not reveal whether the different formulation of section 41 in Victoria makes any practical difference.

Research

The Child Abuse Royal Commission has released research on the questioning of complainants of child sexual abuse in criminal trials. Study 17 of this research concerned intervention in the questioning of child sexual abuse complainants by judges, the prosecution and defence. Researchers analysed 120 transcripts of complainant evidence from 94 child sexual abuse cases heard in New South Wales, Western Australia and Victoria.54

48 Evidence Act 1929 (SA), s 25.49 Evidence Act 2008 (Vic), s 41.50 Evidence (National Uniform Laws) Act (NT), s 41.51 Victorian Law Reform Commission, above n 2, 98 [5.63].52 Woods (a Pseudonym) v The Queen [2014] VSCA 233 [92].53 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Consultation

Paper (September 2016) 374.54 Powell, Westera, Goodman-Delahunty and Pichler, above n 10.TRIM ID: CD/17/131833*

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The research found that judges were the most common interveners during cross-examination, intervening four times as much as prosecutors.55 However, judges did not intervene in relation to all questions classified by the researchers as complex.56 A complex question may be misleading or confusing and therefore be considered ‘improper’ under section 41. A direct comparison of data on potentially ‘improper’ questions and intervention by parties, in each case and in aggregate, is not presented in the paper, which acknowledges that further research on these issues is required.

The research identifies differences in intervention between different jurisdictions based on the age group of the complainant, however there did not appear to be a clear difference attributable to the different law in Victoria on improper questioning. The study noted the reforms to section 41 of the uniform evidence law in New South Wales, and stated that ‘it remains unclear what impact, if any, these reforms have had on the practice of cross-examining witnesses in child sexual abuse trials.’57

The Child Abuse Royal Commission’s Criminal Justice Consultation Paper discusses possible reform, such as the introduction of ‘ground rules hearings’, to increase judicial management of questioning.58 The Child Abuse Royal Commission is anticipated to make recommendations on criminal justice topics in 2017.

Discussion

As acknowledged by the VLRC and academic commentators on this issue,59 the larger issue with the use of court powers to manage improper questioning is whether the court and parties appropriately identify questioning as ‘improper’, and are able to adapt questioning content and style where necessary. This is determined by the knowledge of practitioners and judicial officers.

The VLRC has made several recommendations to non-government bodies to address these matters.60 Any reform to section 41 is unlikely to have a substantial effect in the absence of greater understanding about questioning approaches, the understanding of children and persons with a cognitive impairment to questioning, and engagement of the courts and legal profession in considering how to integrate a research based approach to legal practice. However, it is also unclear that there is any reason the amendment could not proceed in anticipation of this further training.

As there is no policy reason for limiting the application of the proposed reform to victims who are witnesses, if an amendment proceeds, it is desirable that it be consistent with other uniform evidence jurisdictions and apply the limitation on improper questioning to the questioning of all witnesses. An amendment to section 41 would remove the differentiation between ‘vulnerable’ witnesses and other witnesses. There may already be more focus on appropriate questioning in cases involving a victim who is a child or person with a cognitive impairment, although this is unclear.

Consultation questions: VLRC Recommendation 18

Should section 41 of the Evidence Act 2008 be amended to require a court to disallow improper questions put to:

victims who are witnesses, or

55 Ibid, 236. In studies 14 and 17 the researchers analysed 120 transcripts of complainant evidence from 94 child sexual abuse cases (N = 40 children aged 12 years and under; N = 40 adolescents aged over 12 and under 18; N = 40 adults aged 18 and over) heard in three Australian jurisdictions (N = 38 complainants in NSW; N = 34 complainants in Victoria; and N = 48 complainants in WA).

56 Ibid, 239.57 Ibid, 272.58 Royal Commission into Institutional Responses to Child Sexual Abuse, above n 51, 371 - 374.59 Phoebe Bowden, Terese Henning and David Plater, ‘Balancing fairness to victims, society and defendants in the

cross-examination of Vulnerable Witnesses: An impossible triangulation?’ (2014) 37(3) Melbourne University Law Review 539.

60 Victorian Law Reform Commission, above n 2, see recommendations 3 – 9 and 17.TRIM ID: CD/17/131833*

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any witness?

Is there likely to be any adverse effect from the removal of the category of ‘vulnerable witness’ in section 41?

5.3 Recommendation 19 — victim who is a witness entitled to be present in courtThe VLRC’s Recommendation 19 concerns section 336A of the Criminal Procedure Act.

Section 336A(1) provides that ‘the court may order the victim to leave the courtroom until required to give evidence only if the court considers it appropriate to do so’.

Section 336A(2) provides that nothing in the section prevents the court from ordering a victim who is a witness to leave the courtroom at any time after giving evidence.

The VLRC recommend that section 336A(2) be repealed.


Subsection (2) of section 336A of the Criminal Procedure Act 2009 (Vic) should be repealed.

Section 336A, Criminal Procedure Act 2009

Section 336A of the Criminal Procedure Act is a re-enactment of the former section 42 of the Evidence Act 1958. Rather than restricting the victim’s role in proceedings, this section was introduced by the Sentencing (Further Amendment) Act 2005 in order to better support victims of crime. The second reading speech for the Sentencing (Further Amendment) Act 2005 provided:

One way in which victims' access to information and proceedings could be enhanced is for steps to be taken to ensure that they are not unnecessarily excluded from the court.

Sometimes a victim will be a witness in the proceeding. A court may make a 'witness order' which requires all witnesses except the defendant and the witness being examined to leave the court. In the Magistrates Court, an exception is also made for the informant because he or she is a party to those proceedings.

When a 'witness order' is made, a victim who is also a witness is excluded from the court. While this may sometimes be appropriate, it may be preferable for the court to give specific consideration to whether the victim needs to be excluded.

Finally, the bill will ensure that a victim who wants to observe proceedings is not automatically excluded when the court makes an order for witnesses to leave the courtroom. This provision is intended to ensure that courts consider the particular circumstances of the victim when ordering witnesses from the courtroom. This recognises the particular position of victims in criminal proceedings. The court will still retain the discretion to make a determination that a victim must leave the courtroom; for example, in order to ensure a fair trial to the defendant.61

In this context, the role of section 336A(2) is to clarify that section 336A(1), which emphasises the need of the court to consider whether it is necessary to exclude a victim from court until the victim is required to give evidence, does not limit the inherent jurisdiction of the court to make a witness exclusion order to ensure a fair trial, including after the victim has given evidence in the proceeding.

Discussion

It is not clear from the discussion of the VLRC whether any issue has arisen relating to the unnecessary exclusion of a victim who has given evidence from the trial court as a result of section 336A(2).62

61 Victoria, Parliamentary Debates, House of Assembly, 24 March 2005, 432 (Robert Hulls).62 Victorian Law Reform Commission, above n 2, 99.TRIM ID: CD/17/131833*

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The repeal of section 336A(2) may not have a significant effect in practice, as the power to order the exclusion of witnesses is an inherent power of the trial court. Interfering with the exercise of this power, beyond what is currently in place, could interfere with the court’s obligation to ensure a fair trial.

Consultation question: VLRC Recommendation 19

Should section 336A of the Criminal Procedure Act 2009 be amended as proposed by the VLRC?

TRIM ID: CD/17/131833*

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6 Appeal from the determination regarding indictable offences triable summarilyDuring 2016 and 2017, the department consulted with key criminal justice stakeholders on possible reforms to summary appeals.

One area which was not addressed in that consideration was the process of determining whether an indictable offence should be tried summarily.

Under the Criminal Procedure Act, questions of jurisdiction are determined by the classification of an offence as ‘indictable’, ‘summary’ or as an ‘indictable offence triable summarily’.

Indictable offences that are triable summarily may be tried in either the Magistrates’ Court, or the trial courts, depending on the seriousness of the particular offence and whether the accused consents. The decision is made with an understanding that offences should be tried in the lowest appropriate jurisdiction.

The DPP has raised concerns about whether the current system allows the correction of determinations on jurisdiction for indictable offences triable summarily. The paper includes a proposal for a new appeal right from the determination regarding whether an indictable offence which is triable summarily should be tried summarily.

Criminal Procedure Act framework for indictable offences triable summarily

When police lay charges in the Magistrates’ Court, they may include a request for a committal proceeding in a charge sheet containing a charge for an indictable offence that may be heard and determined summarily.63 The court considers this request when listing the matter either for mention (in summary stream) or filing hearing (in committal stream).64 Matters that are listed for mention in the summary stream may be dealt with summarily, or transferred to the committal list.

Section 28 and Schedule 2 of the Criminal Procedure Act set out which indictable offences can be heard and determined summarily. Section 29(1) of the Act provides when the court may hear and determine summarily an indictable offence triable summarily. Section 29(2) outlines considerations for the court when determining whether a particular charge is appropriate to be heard and determined summarily:

the seriousness of the offence including—

the nature of the offence

the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances

whether the offence forms part of a series of offences being alleged against the accused, and

the complexity of the proceeding for determining the charge

the adequacy of sentences available to the court, having regard to the criminal record of the accused

whether a co-accused is charged with the same offence, and

any other matter that the court considers relevant.

The accused must consent to a summary hearing for it to be held.65 This acknowledges that summary procedure is streamlined and does not provide the same process rights as when a matter is dealt with as an indictable offence, such as a committal process and a jury trial. An

63 Criminal Procedure Act 2009 (Vic) s 6(4).64 Criminal Procedure Act 2009 (Vic) s 10(3).65 Criminal Procedure Act 2009 (Vic) s 29(1)(b).TRIM ID: CD/17/131833*

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accused may refuse summary jurisdiction and opt to have the offence dealt with as an indictable offence.

The Magistrates’ Court may grant a summary hearing of an indictable offence triable summarily at any stage of the committal process. Following the grant of summary hearing, the matter may be dealt with immediately or adjourned to be dealt with in a summary list (for example by contested summary hearing, or plea in a general list).

The decision about whether an indictable offence triable summarily is appropriate to be determined summarily is made by a Magistrate having regard to the matters set out in section 29(2) (as discussed above). Once a determination has been made under section 28, a Magistrate cannot subsequently revoke the determination and re-determine the issue.66

The issue can be reconsidered by the Supreme and County Courts, which have the power to transfer an offence to the Magistrates’ Court, where they determine that it is appropriate to be heard or determined summarily and the accused consents to it being so heard.67 If this conflicts with the decision of a Magistrate that the case was not appropriate to be heard and determined summarily, a judge cannot transfer the case unless there has been a significant change in the charges against the accused or in the prosecution case against the accused.68

There is ordinarily no right of appeal from the determination that an indictable offence is, or is not, triable summarily. A statutory appeal from the Magistrates’ Court to the Supreme Court on a question of law is not available from committal proceedings.69 Judicial review is available from a determination about whether an indictable offence is triable summarily.70 Judicial review requires the identification of legal error on the face of the record, or jurisdictional error.

DPP concerns

Victoria’s DPP is concerned that a small number of indictable offence matters are being finalised summarily, when they should appropriately be dealt with in the Supreme or County Courts. Examples provided by the office of the DPP are included at Appendix B.

The Office of Public Prosecutions has noted that grounds for judicial review may be difficult to make out in a determination as to whether an indictable offence is triable summarily, given the broad nature of the considerations listed in section 29. In some cases, there may be no legal error, but disagreement as to the exercise of the discretion.

If the case proceeded to committal and the accused was discharged, the DPP would have the option of directly indicting the accused. However, the DPP has no available remedy beyond judicial review where a Magistrate has made a determination pursuant to section 28 that an offence is triable summarily.

The determination as to whether an indictable offence can proceed summarily is of interest to both the prosecution and the accused because it impacts upon:

legal and system costs (which are lower in summary jurisdiction)

sentence (the Magistrates’ Court has a jurisdictional maximum limit of two years imprisonment for a single indictable offence tried summarily,71 and a cumulative sentence limit of five years imprisonment)72

66 Williams v Hand & Anor [2014] VSC 527 [47].67 Criminal Procedure Act 2009 (Vic) s 168.68 Criminal Procedure Act 2009 (Vic) s 168(2).69 Criminal Procedure Act 2009 (Vic) s 272(1).70 R v Batich [2013] VSCA 53; Williams v Hand & Anor [2014] VSC 527.71 Sentencing Act 1991 (Vic) s 113(1).72 Sentencing Act 1991 (Vic) s 113B.TRIM ID: CD/17/131833*

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victim interests (victims or their family may consider the Supreme or County Courts more serious and respectful of the harm caused or may simply want the matter heard as quickly as possible), and

process rights, including disclosure obligations, a committal procedure, and right to a jury trial.

Children’s Court

The determination of indictable offences triable summarily in the Children’s Court, and those which proceed through a committal to the Supreme or County Courts, is governed by the Children, Youth and Families Act 2005.

Specified offences (such as murder and arson) must proceed as indictable offences. However, the majority of offences are heard and determined summarily by the Children’s Court, unless the child objects or the Court considers that the charge is unsuitable, by reason of exceptional circumstances, to be determined summarily.73 The Court is required to give reasons where there are exceptional circumstances as to why the matter cannot be heard summarily.

The Supreme Court and Court of Appeal have given guidance on ‘exceptional circumstances’ on several occasions.74

The cases highlight the difference in nature of the statutory scheme establishing the Children’s Court jurisdiction, when compared with the Magistrates’ Court. Unlike the determination regarding whether an offence is indictable triable summarily in the Magistrates’ Court, the emphasis in the Children’s Court is on dealing with matters within the specialist jurisdiction of the Children’s Court. In DPP v Anderson [2013] VSCA 45 (which was a judgment on a DPP appeal from sentence in the County Court), the Court quoted with approval the comments of the sitting magistrate in the Children’s Court —

It is clear that the Children’s Court should only relinquish its jurisdiction with great reluctance. It is a specialist jurisdiction with a specialist approach to the criminality of children and young persons under the age of 18 years.

…

In particular, I have had regard to the comments of Vincent J in D L (A Minor by his Litigation Guardian) & Ors, where he said:

...that for very good reasons, our society has adopted a very different approach to both the ascertainment of and response to criminality on the part of young persons to that which is regarded as appropriate where adults are involved. It is only where very special, unusual, or exceptional, circumstances exist of a kind which render unsuitable the determination of a case in the jurisdiction specifically established with this difference in mind, that the matter should be removed from that jurisdiction to the adult courts.75

The Court of Appeal noted with approval the judgment of the sitting Magistrate that ‘exceptional circumstances’ were present.76

Despite the different policy context for Children’s Court determinations as to jurisdiction, similar justifications for an appeal right exist. In cases in which questions of what constitutes ‘exceptional circumstances’ arise, parties are required to make use of the strict, error based approach of judicial review.77

As summarised by Forrest J in K v Children’s Court of Victoria & Anor [2015] BSC 645—

This is not an appellate procedure ‘enabling either a general review of the order or decision of the inferior court...or a substitute of the order or decision which the superior court thinks

73 Children, Youth and Families Act 2005 (Vic) s 356.74 DPP v Anderson [2013] VSCA 45; C L (a minor) v Lee & Ors [2010] VSC 517; K v Children’s Court of Victoria & Anor

[2015] VSC 645.75 DPP v Anderson [2013] VSCA 45, [26].76 DPP v Anderson [2013] VSCA 45, [27].77 C L (a minor) v Lee & Ors [2010] VSC 517; K v Children’s Court of Victoria & Anor [2015] VSC 645.TRIM ID: CD/17/131833*

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should have been made.’ Should the writ run ‘it merely establishes the quashing of the impugned order or decision upon one or more of a number of distinct, established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.

Judicial review is not a review on the merits.78

Both the accused and the prosecution may disagree with the determination as to whether ‘exceptional circumstances’ exist in any case, but are more likely to disagree with the outcome of the determination, rather than identify a specific legal error warranting judicial review.

The proposed appeal process would provide scrutiny of determinations about ‘exceptional circumstances’, but also provide a broader appeal mechanism than that available currently.

Draft proposal

A draft proposal for a right of appeal is included in Appendix C to assist stakeholders. As there are specific issues that would need to be addressed with regard to this proposal, that would be different from other appeal processes, the draft proposal sets out how it could work.

The proposal relates to the determination under section 28 of the Criminal Procedure Act. A similar model would apply to determination of the Children’s Court under section 356 of the Children, Youth and Families Act.

Because the Magistrates’ Court has jurisdiction to determine the charge, any remedy for the DPP should work within the existing system and the appeals process should provide the appropriate mechanism for this. The proposal has been developed on that basis and on the following assumptions:

if the DPP is provided with an appeal right then similar rights should ordinarily be available to the accused

an appeal process should, as far as possible, operate consistently with similar appeals (the following proposal is based on models proposed for appeals from summary hearings)

any appeal process in this circumstance will need to operate quickly and with minimal additional expense.

If adopted, this proposal would operate in conjunction with the Government’s commitment to further clarify the criteria that the Children’s Court consider when determining whether a matter should be heard in a higher court.

Appeal from determination of whether an indictable offence that may be heard and determined summarily

Are there any issues that would arise due to the creation of an appeal right from a determination under section 29(1) of the Criminal Procedure Act 2009 that a charge for an indictable offence is, or is not, suitable to be determined summarily?

Should there be a right of appeal from a determination under section 356(4), Children, Youth and Families Act 2005 that a charge is, or is not, suitable to be determined summarily?

Are there different considerations to be considered in an appeal from the Children’s Court than those applying in the Magistrates’ Court (apart from the differences that already exist

78 K v Children’s Court of Victoria & Anor [2015] VSC 645, [23] – [24].TRIM ID: CD/17/131833*

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concerning when summary jurisdiction should be exercised in those jurisdictions)?

TRIM ID: CD/17/131833*

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7 Appendix A: Data and performanceMatters appropriate to be heard and determined summarily

In 2015/16, 29% of non-sexual offence matters that commenced in committal stream were finalised in summary jurisdiction (Figure 1). 71% of matters that commenced in the committal stream resulted in the accused being committed for trial. The proportion of committal proceedings dealt with summarily has steadily increased over the past 10 years, from 18% of matters in 2005/6, to 29% of matters in 2015/16.

Figure 1: Total committals by stage of finalisation – non-sexual offence matters (proportions), Court Services Victoria (2016)

Ensuring that matters are dealt with in the lowest appropriate jurisdiction remains an important aspect of the committal process. This ensures an efficient use of justice system resources, and retains the focus of the Supreme and County Courts on the most serious matters in the criminal justice system.

The point at which a matter is finalised summarily from the committal stream varies, but occurs most often at committal mention. In 2015/16, 48.7% (402) of matters that were finalised summarily in the committal stream were finalised at committal mention. However, a significant proportion, 30.3% (250), were finalised summarily at committal hearing stage (Figure 2). Whether or not this is the result of cross-examination of witnesses, or discussions between parties, it indicates that the procedural ‘event’ of the committal hearing plays an important role in determining matters which are finalised summarily.

Only a small proportion of sexual offence matters were finalised summarily from the committal stream of the sexual offences list (3.4%, Figure 2). This may be because this list contains a summary stream and a committal stream, and determinations about which charges to lay and the appropriate jurisdiction are made by specialist police and prosecutors, and therefore may be less likely to change. Sexual offence cases may have a longer investigation stage prior to charges being laid (particularly where they relate to historical abuse, or sexual abuse of children), which again may contribute to greater consideration of the resulting charges.

TRIM ID: CD/17/131833*

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Figure 2: Defendants finalised summarily in committal stream by hearing booking, Court Services Victoria (2016)

Evidence of sufficient weight to support a conviction

In 2015/16, there were six non-sexual offence matters in the committal stream where the accused was not committed on any charge, and was discharged on at least one charge. There were 55 non-sexual offence matters where the accused was discharged on some charges and committed on some charges. (Figure 3).

It is noted that the data in Figure 3 includes overlap between the category ‘cases with at least one charge committed’, which would also incorporate in ‘cases with at least one charge committed, none discharged’ and ‘cases with some charges committed, some discharged’. Further, these figures do not include sex offence cases, which could have different outcomes.

The percentage of matters discharged at committal in Victoria remains low. However, this data is not the only measure of the impact of the committal proceeding on assessment of evidence. For instance, the data on matters finalised in the summary jurisdiction includes charges withdrawn by the prosecution, which may include entire matters. This is not reflected in discharge figures but is a result of the assessment of evidence undertaken in the committal process.

TRIM ID: CD/17/131833*

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Figure 3: Committed cases, Court Services Victoria (2016)

Determining how the accused wishes to plead

In 2015/16, the accused entered a guilty plea in over half of non-sexual offence matters (51.4%) in which the accused was committed at a committal proceeding (Figure 4). This figure has been broadly consistent at around 50% of matters since 2008, which may reflect reforms which removed the option of a reserved plea,79 or an early resolution project that commenced at the Office of Public Prosecutions at that time, or other case management strategies. Regardless, the figures indicate some success in having parties identify guilty pleas at an earlier stage. Prior to 2008, the accused entered a guilty plea at committal in less than 40% of matters.

Figure 4: Total Committals by Plea (Proportion), Court Services Victoria (2016)

An accused may be committed at any of the hearings during a committal proceeding.

Very few accused are committed at a filing hearing. In 2015/16, 19 accused with non-sexual offence charges were committed at a filing hearing (17 guilty, 2 not guilty).80 At this stage, in most cases, it is unlikely that an accused has had anything more than preliminary legal advice, and the prosecution and defence are likely waiting to review the evidence before discussions regarding resolution occur. However, in rare cases, such as where charges follow a coronial or other investigatory process, notice has been given to the accused, charges have been rationalised (i.e. do not require discussion), or a brief has been filed early, an accused may wish to proceed to committal at filing hearing.

79 Criminal Procedure Legislation Amendment Act 2008, s 16.80 Data provided by Court Services Victoria (2016), no chart available.TRIM ID: CD/17/131833*

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Most commonly, guilty pleas are entered where an accused is committed at committal mention. In 2015/16, 798 non-sexual offence matters were committed at committal mention, and 80.6% (643) entered a guilty plea.81

A smaller percentage of accused committed at committal hearing entered a guilty plea. In 2015/16, of 929 non-sexual offence matters committed at committal hearing, 74.9% entered a plea of not guilty (696), while 25.1% (233) entered a plea of guilty.

This could indicate that in around a quarter of non-sexual offence matters listed for committal hearing, the evidence given at a committal hearing persuades the accused to plead guilty, or provides a basis for a plea agreement between the prosecution and the accused. Alternatively, the procedural ‘event’ of the committal hearing may stimulate better disclosure, analysis and preparation of matters by both parties, resulting in agreement to a plea of guilty to certain charges and meaning that cross-examination of witnesses does not go ahead.

The data in relation to sexual offence cases differs, with a greater proportion of accused entering a plea of not guilty when committed at committal hearing. In 2015/16, 16.5% of accused in sexual offence matters (23) who were committed at a committal hearing entered a guilty plea, and 83.5% (116) entered a not guilty plea (Figure 5).

Figure 5: Sexual Offence cases committed at committal hearing (proportions), Court Services Victoria (2016)

Ensuring the accused has a fair trial

There are several considerations relevant to the committal process to ensure the accused has a fair trial. These may be some of the most difficult to measure against available data.

These include disclosure of the prosecution case, enabling issues in contention to be clearly defined, enabling the accused to adequately prepare and present a case, and enabling the accused to put forward a case at an early stage if the accused wishes to do so.

Applications for leave to cross-examine witnesses

In 2015/16, of 1333 applications for leave to cross-examine a witness at committal, 1188 were granted (89%), 10 were refused and 135 were struck out (Figure 6). These applications represent entire matters, not individual witnesses, so it is possible that within applications granted, applications for leave with respect to individual witnesses were refused. The data indicates that most applications for leave to cross-examine witnesses will be granted, at least in part.

81 Ibid.TRIM ID: CD/17/131833*

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There is no data available to indicate how many applications for leave actually resulted in the cross-examination of a witness in a committal hearing. For example, in 2015/16 there were 1188 successful applications for leave to cross-examine a witness at committal hearing (Figure 6), but not all of these matters necessarily proceeded to cross-examination of witnesses. Matters booked for a committal hearing may proceed as a plea of guilty following discussions between the parties, and result in committal by hand up brief, or finalisation in summary jurisdiction, meaning that no cross-examination of witnesses occurs.

Figure 6: Applications for leave to cross-examine witness finalised by order, Magistrates’ Court of Victoria (2016)

Magistrates' Court of VictoriaApplications for leave to cross-examine witness finalised by orderData extract from Courtlink Case Management System

Year Granted Refused Struckout Total

2011/12 1142 3 185 1330

2012/13 1223 7 127 1357

2013/14 1252 5 130 1387

2014/15 1221 9 117 1347

2015/16 1188 10 135 1333

Length of committals

The vast majority of cases set for committal hearing in the Magistrates’ Court are listed for only one or two days. Magistrates’ Court data reflects the number of days a matter was initially listed for, but not the actual length of the proceeding. Some cases may run for more or fewer days than indicated.

In 2015/16, in 83% of matters (1114 matters) the committal hearing was listed for one or two days (Figure 8). In 14.5% (194) of matters the committal hearing was listed for between three to five days. In the remaining 2.2% (29) of cases the committal hearing was listed for six days or more.

Figure 7: Length of Contested Committal Hearings, Court Services Victoria (2016)

TRIM ID: CD/17/131833*

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Length of committal proceedings

The average length of time for committal proceedings from first hearing to committal varies slightly depending on matter type.

For offences classified as ‘death related’ (predominantly fatal offences), the average time in 2015/16 was around seven months, or 220 days (Figure 9).

For sexual offences, the average time in 2015/16 was less, at 6 months (Figure 10). This perhaps reflects shorter committal timeframes in matters involving children or persons with a cognitive impairment, and that there are generally less witnesses for examination at a committal hearing.

For non-sexual and non-death related offences, the 2015/16 average was seven months, or 210 days (Figure 11).

These figures do not give an accurate picture of the length of all committal proceedings, as many accused are committed at committal mention, and for these matters the time frame is likely to be much shorter. The longer timeframes are likely to reflect matters that have delays in service of brief material, which may be the case for fatal offences (excepting many fatal driving offences) and offences involving forensic evidence, or complex evidence (such as fraud or some drug trafficking), and for matters which are listed for committal hearing.

Figure 8: Death related committal, average days between first hearing and finalisation, Court Services Victoria (2017)

Figure 9 : Sex offence committal, average days between first hearing and finalisation, Court Services Victoria (2017)

TRIM ID: CD/17/131833*

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Figure 10 : General offence committal, average days between first hearing and finalisation, Court Services Victoria (2017)

TRIM ID: CD/17/131833*

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8 Appendix B: Summary jurisdiction examplesThe office of the DPP has identified cases in which the prosecutor disagreed with the grant of summary jurisdiction for an indictable offence triable summarily, but could not identify legal error for an appeal from the determination under section 28 of the Criminal Procedure Act 2009.

Case A — Recklessly causing serious injury

Charge: recklessly causing serious injury

Maximum penalty: 15 years imprisonment (level 4)

Factual summary

In the early morning the accused entered a fast food restaurant after being out at a nightclub. The accused was seated eating a meal and became annoyed at the victim. They exchanged words. The accused continued eating, then grabbed a stool and swung it above his head and behind him. The victim was standing and the stool struck him to the forehead, causing a gaping wound, exposing his skull and bleeding profusely. The accused kept hold of the stool and pushed it against the victim’s body. There was a short scuffle and the accused ran from the restaurant. The victim suffered a fractured nose and eye socket, chipped tooth and a wound to the forehead exposing the skull. The victim required surgery and the insertion of plate into his forehead.

Arguments made for summary jurisdiction or comments made by Magistrate

Defence arguments not recorded.

Magistrate noted that this incident was not a glassing.

Prosecution arguments

A drunken act with dangerous weapon like a metal chair in a public place in the early hours of the morning after leaving a licenced premises was very similar to a glassing.

A glassing in these circumstances is considered highly serious.

Tendered cases noting seriousness of glassing (e.g. Winch v The Queen [2010] VSCA 141).

Outcome

Summary jurisdiction was granted.

The accused pleaded guilty and was sentenced to a 24 month Community Corrections Order with conditions.

The DPP appealed the sentence to the County Court.

The County Court upheld the appeal and resentenced the offender to 3 months imprisonment with an 18 month Community Corrections Order on the same conditions as the Magistrates’ Court, but without 62 hours of unpaid community work.

Case B — Dangerous driving causing serious injury

Charge: dangerous driving causing serious injury

TRIM ID: CD/17/131833*

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Maximum penalty: 5 years imprisonment (Level 6)

Factual summary

A 40 year old accused driving truck and trailer on urban highway carrying 20 tonnes of bricks and forklift. The truck had inadequate brakes. The truck side-swiped 10 cars. The victim was the driver of a vehicle that became crushed between the accused's truck and a vehicle in front. The victim was trapped in her car for one hour and taken to hospital with what were believed to be life threatening injuries. The victim suffered a traumatic head injury and now has post-traumatic vertigo. The accused stated that he thought the vehicle was roadworthy or it would not be loaded, that traffic stopped faster than he had anticipated and that he thought he had left enough room.

Defence arguments made for summary jurisdiction or comments made by Magistrate

There were deficiencies in the brief.

An accident reconstruction was not conducted.

There was no evidence of braking times for a vehicle of that weight.

The prosecution could not establish the specific speed of the truck.

The Magistrates’ Court had adequate sentencing jurisdiction (e.g. 2 years imprisonment plus CCO).

The defence had engaged their own expert.


Prosecution arguments not recorded.

Outcome


The case was contested, and was listed for a summary hearing. The outcome of the hearing is unknown.

Case C — Co-accused drug possession

Charge: possession of material to manufacture a drug of dependence

Maximum penalty: 10 years imprisonment (Level 5)

Factual summary

The police executed a warrant at the accused's premises and located the following items:

Iodine in the kitchen

3 grams of Methylamphetamine in the accused's pocket

A small amount of Methylamphetamine in the accused's bedroom, and

cartridge ammunition.

The accused and another person were charged with offences as a result of the items seized in the search.

Defence arguments made for summary jurisdiction

The co-accused was committed and had a guilty plea listed in the County Court.TRIM ID: CD/17/131833*

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The accused’s main charge of possession of material for manufacturing drug of dependence was withdrawn. It was that charge triggered the co-accused’s matter being dealt within the County Court.

The accused had prior history for lesser offences of trafficking and firearms offences.

The Magistrates’ Court had adequate jurisdiction for sentencing.

The accused was on bail and also on a Community Corrections Order in relation to other matters.


The accused’s prior convictions related to similar offending.

Although a trafficking charge had been withdrawn, the charges stemmed from common property of both accused, and both accused were charged with other serious offences.

Both accused should be in the same jurisdiction to avoid inconsistent sentencing.

Outcome


The accused pleaded guilty and was sentenced to an aggregate term of imprisonment of 6 months.

Case D — Co-accused theft and robbery

Charge: theft and robbery

Maximum penalty: theft — ten years imprisonment (Level 5), robbery — 15 years imprisonment (Level 4)

Factual summary

The accused and a co-accused stole a motorbike which was parked in a car park. The engine immobiliser kicked in shortly thereafter and they were unable to take the bike with them.

Later that same day, they were in a car with a third co-accused. The victim was on his motorcycle behind the car, stopped in traffic. The accused and a co-accused exited the vehicle and approached the victim. The co-accused had a motorcycle helmet in his hands. Both accused demanded the victim hand over his motorcycle. The victim attempted to ride away but the co-accused driving the car reversed the car blocking the victim. The victim fell off his bike as a result. The co-accused attempted to start the bike but was unsuccessful. The accused then got back in the car which drove away.

Defence arguments made for summary jurisdiction

The gravity of the offending was at mid-range.

The focus should be on this accused’s role, the co-offender was involved in aggravating features.

There was some degree of planning.

Robbery itself could be seen as high range offending however bikes were only removed for a short distance and returned to the riders.

There was adequate jurisdiction for sentencing.

TRIM ID: CD/17/131833*

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The co-accused should not be used as a yard stick as they were facing more serious charges.


Both accused should be dealt with in the same jurisdiction to avoid inconsistent sentencing.

The offending was serious and at the upper level of seriousness – it was open to the court to impose more than two years imprisonment.

The prior history of the accused was significant and contained similar offences.

Outcome


The accused pleaded guilty and was sentenced to a total effective sentence of 1 year and 6 months imprisonment, with a non-parole period of 12 months.

A compensation order was made.

TRIM ID: CD/17/131833*

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9 Appendix C: appeal from grant of summary jurisdictionA draft proposal for a right of appeal is included below to assist stakeholders in this issue. As there are specific issues that would need to be addressed with regard to this proposal that would be different from other appeal processes, the following sets out how it could work but is not determinative.

The proposal would create an appeal from a determination of a Magistrate to grant or to deny, summary hearing of an indictable offence triable summarily.

The proposal relates to the determination under section 28 of the Criminal Procedure Act. A similar model would apply to determination of the Children’s Court under section 356 of the Children, Youth and Families Act.

Because the Magistrates’ Court has jurisdiction to determine the charge, any remedy for the DPP should work within the existing system and the appeals process should provide the appropriate mechanism for this. The following proposal has been developed on that basis and on the following assumptions:

if the DPP is provided with an appeal right then similar rights should ordinarily be available to the accused

an appeal process should, as far as possible, operate consistently with similar appeals (the following proposal is based on models proposed for appeals from summary hearings)

any appeal process in this circumstance will need to operate quickly and with minimal additional expense.

Appeal from determination regarding indictable offence triable summarily

The accused and the DPP have a right of appeal against the determination under section 28 of the Criminal Procedure Act to grant, or to deny, summary hearing of an indictable offence triable summarily

How appeal is commenced

An appeal is commenced by giving immediate oral notice of an intention to appeal the determination. This notice would temporarily stay action on the criminal proceeding (such as plea or committal).

The matter must be adjourned for [14 days]

Within [14 days] the potential appellant must file a notice of appeal or notice of discontinuance

If:

an appeal notice is lodged, at the return date, the matter would be adjourned for mention to a date following the likely appeal period

no notice is filed, at the return date, the matter would proceed in accordance with the Magistrate’s determination

The proceeding would effectively remain ‘on foot’ for the purpose of bail and remand arrangements, but action would be stayed until the outcome of the appeal

Conduct of appeal

The appeal must be heard by the County Court within [21 days] of the notice of appeal

TRIM ID: CD/17/131833*

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The Court would re-determine the matter on the evidence given before the Magistrates’ Court, having regard to the reasons for granting or denying summary hearing of the indictable offence triable summarily

New evidence would be admissible with leave of the Court

Determination of appeal

The appeal would be based upon an ‘outcome error’, but not a strict legal error (i.e. House v King)

The appellant must satisfy the court having regard to the considerations listed in section 29(2) that, either the offence:

is not appropriate to be heard and determined summarily, or is appropriate to be heard and determined summarily.

The appeal would be final, and other and further avenues of appeal forgone where the appellant has opted to utilise this form of appeal.

Judicial review of the determination of the County Court would remain available.

Orders on appeal

The County Court could:

dismiss the appeal grant the appeal, and substitute the Magistrates’ determination with a new determination as

to whether the offence may be heard and determined summarily, and order that the accused appear before the Magistrates’ Court on a specified date, remand

the accused in custody, or grant bail, to appear before the Magistrates’ Court on a specified date

The County Court ruling would be binding on the conduct of the proceeding in the Magistrates’ Court

The proceeding would be returned to the Magistrates’ Court for listing on a specified date (consistent with bail/remand and the order made in the appeal as to summary or committal stream)

The Magistrates’ Court, and the County and Supreme Courts, would not be able to revisit the determination of the County Court unless there has been a significant change in the charges against the accused or in the prosecution case against the accused since the determination.

Return to Magistrates’ Court

The matter would be returned to the Magistrates’ Court and heard on its return date (the date it was adjourned to prior to the appeal)

The matter would proceed in accordance with the outcome of the appeal.

How appeal is commenced

Critical to the operation of the appeal right is that it acts as a temporary stay, to ensure the matter does not proceed to committal, or is not dealt with summarily, without the appeal being heard.

However, bail and remand arrangements must be maintained, and as far as possible the proceeding in the Magistrates’ Court not fragmented, so that the matter can proceed following appeal.

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The appeal would commence by oral notice being given immediately to the Magistrate and the other party, following the determination regarding summary jurisdiction. Upon receiving notice, no action could be taken in relation to the proceedings, and the Magistrate would be required to adjourn the matter for a short period (e.g. 14 days).

During this period, the potential appellant would be required to lodge a notice of appeal or discontinuance of appeal with the Magistrates’ Court.

The return date is necessary to avoid further delay caused where an appeal is abandoned, and the matter would require relisting, and to allow time for the DPP to consider whether to approve an appeal where the notice of intention to appeal is given by the prosecution.

In instances where, following a notice of intention to appeal being given, the party determines they do not want to appeal, or the DPP does not authorise an appeal (or VLA does not fund an appeal), a notice of discontinuance must be filed with the Magistrates’ Court and provided to the other party. This informs the Magistrates’ Court that the matter will be ready to proceed at the mention date.

If neither a notice of appeal nor notice of discontinuance is filed within the relevant period, the matter would proceed as though no notice of intention to appeal was given.

Where a notice of appeal has been lodged, the Magistrates’ Court would transfer the notice to the County Court, which would contact parties regarding listing. At the return date in the Magistrates’ Court, the matter would be adjourned to a date after the appeal is likely to be finalised (counsel could contact County Court listings to determine the timeframe).

Where the Chief Magistrate has made the determination under section 28, the appeal would lie to the Supreme Court. This is due to the dual sitting arrangements introduced for heads of jurisdiction in 2016.82

Similarly, where the President of the Children’s Court, or a County Court Judge sitting in the Children’s Court, has made the determination under section 28, the appeal would be to the Supreme Court. In other cases, as with the Magistrates’ Court, the appeal would be to the County Court.

Conduct of appeal

The appeal would require fast-track listing in the County Court. Given the appeal is on a single issue (and therefore able to be simply argued and quickly determined) it is likely that the only limitations on fast listing would be court availability and obtaining a transcript of the determination in the Magistrates’ Court. A transcript is likely to be short, except in the instance that evidence given at a committal hearing is relevant to the determination of the appeal.

Issues regarding transcript availability have been raised by stakeholders in recent consultation regarding summary appeals, and will be considered in any reforms that proceed.

It is not anticipated that submissions on appeal would require a significant amount of court time. As it is not a strict legal error appeal, the arguments to be made regarding the considerations in section 29(2) and any error displayed in the Magistrate’s reasons are reasonably limited. It is not intended that the appeal right become a de facto judicial review or an opportunity to litigate broader issues in the case.

Determination of appeal

The appeal should not require extensive deliberation by the court. As it is not an appeal on the basis of legal error, but on ‘outcome error’, the role of the appeal court would be to review the evidence from the decision at first instance, including reasons given, and to determine whether the outcome was correct.

82 See Justice Legislation Further Amendment Act 2016 (Vic).TRIM ID: CD/17/131833*

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Orders on appeal

On appeal, the County Court could dismiss the appeal, or grant the appeal and substitute the Magistrate’s determination with a new determination as to whether the offence may be heard and determined summarily. In addition to these orders, the Court would have powers to deal with bail and remand, for the purposes of the next date in the Magistrates’ Court.

The orders on appeal would be final. Those who opt to use the appeal against a section 28 determination would forego further appeal. However, it may be desirable that a ‘case stated’ in the County Court could be transferred to an appeal court, where the decision is complex or contains significant legal issues that require greater consideration.

Where an appeal is based on real legal issues, rather than a disagreement with the outcome, an appeal by judicial review is the vehicle that should continue to be used. This preserves the role of the appeal courts in setting precedent regarding the determination under section 28. It is not intended that the decisions of the County Court on appeal operate as precedent, as each decision is based on the circumstances of the case based upon the factors in section 29(2).

Consultation questions: Appeal from determination regarding indictable offence triable summarily

What time limits are able to be placed upon the appeal process to reduce the potential for delay and fragmentation of proceedings?

Are there any other orders that should be made by the County Court?

Should there be an option for the County Court to send a ‘case stated’ on a determination to an appeal court (e.g. on a complex case or where legal issues exist)?

TRIM ID: CD/17/131833*

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