Until 1968 there was only one form of committal proceedings in England and Wales. This procedure, which is still used in some cases, requires that the justices hear the witnesses for the prosecution, whose evidence is recorded in the form of written depositions. The accused must be present and he may be legally represented. The defence may cross-examine witnesses. The accused may give evidence and he may call witnesses, but he need not say anything or produce any evidence. Usually the defence is reserved; that is to say, no indication is given of whether the case will be defended or what the defence may be at the trial. The justices then decide whether the accused ought to be committed for trial and whether he ought to be released on bail or kept in custody to await his trial.
In England and Wales the Criminal Justice Act 1967 (U.K.) introduced substantial changes in respect to committal proceedings. The relevant sections of the Act came into force on I January, 1968. Basically, the Act introduced a procedure whereby the accused can be committed for trial upon evidence contained only in written statements, without consideration of the evidence by the magistrates, provided that he is legally represented and consents to this procedure being followed. The Act also introduced substantial changes in regard to public access to, and publication of, committal proceedings, but I do not propose to discuss that subject in this report.
Section I of the Act empowers the examining justices, or a magistrate, to commit the accused for trial, not only on the basis of written statements without oral evidence, but also without the justices or magistrate having considered the contents of the statements unless: (1) the accused, or one of several accused persons, is not represented; or (2) the legal representative of the accused, or of one of several accused persons, has requested the court to consider a submission that the statements disclose insufficient evidence to support a committal. The section provides a number of safeguards for the accused - for example, the written statements must comply with a prescribed form; all the evidence of the prosecution and defence (if any) before the court must consist of written statements; and all accused persons must be legally represented. The procedure cannot be used if the accused is a person under 17 years of age.
If the prosecution does not want to use committal proceedings, it must serve on each of the accused persons or on their solicitors, copies of the statements of the prosecution witnesses. If the prosecution believes that it is possible to make out a prima facie case without tendering the statement of a particular witness, or without calling him to give evidence, even though he may be the principal witness, that is a matter within its discretion. The prosecution cannot be compelled to use the statement of a witness at the committal proceedings.
The written statements served on the accused are equally admissible as the same evidence would be if given orally by the witness. The statement must be signed by the witness, and contain his declaration that he believes it to be true and that he is aware that he may be prosecuted for wilfully making a false statement. If any accused person objects to the admission of a written statement before it is tendered in evidence, the committal proceedings must take their ordinary course.
The examining justices or magistrate may commit the accused for trial without considering the contents of the statements, where the accused: (1) having seen the statements, does not elect to have any of the witnesses called to testify; and (2) does not submit that there is insufficient evidence to put him on trial. The court may, of its own motion or on the application of any of the parties to the proceedings, require a witness to give oral evidence.
As noted above, committal for trial previously involved, in every case, the hearing of oral evidence by the magistrates and the recording of the evidence in the form of depositions. This was an extremely laborious and time-consuming procedure. It did provide an opportunity for crossexamination of the prosecution witnesses. However, in the many cases in which the defence did not intend to resist committal, it served little useful purpose beyond disclosing the evidence - often the minimum necessary to ensure committal - upon which the prosecution intended to rely. The procedure was particularly wasteful of manpower and time in cases where the accused intended to plead guilty in the higher court. The opinion in England is unanimous that the procedure of committal, without consideration of the evidence by the magistrates, has relieved them of a heavy burden in the large majority of cases and has generally effected a substantial saving of time.
The procedure in committal proceedings in New South Wales is similar to that which previously obtained in England and Wales. Where a person is charged with an indictable offence it is generally necessary for a magistrate to conduct a preliminary hearing to ascertain whether or not there is a prima facie case so as to justify committing the accused for trial to the District Court or to the Supreme Court.
The charge is formally read to the accused but no plea is taken. The depositions of every witness are then taken down in writing in the presence of the accused. The deposition is read either to or by the witness and is signed by him and by the magistrate, except where the magistrate directs that the deposition shall be taken down by shorthand, stenotype machine, sound-recording apparatus or other authorized means.
It is proper for counsel to examine every avenue of defence open to the accused and, for this purpose, to cross-examine exhaustively the witnesses for the prosecution. Counsel has the advantage of being able to ask questions which may elicit answers unfavourable to the accused but which will not be heard by a jury. When the prosecution case has been completed the accused may make a statement, give evidence himself and/or call witnesses in his defence. At the conclusion of the hearing the magistrate may discharge the accused or commit him for trial.
Criticisms made of committal proceedings in England before 1968 could be applied to the procedure in New South Wales. Committal proceedings in this State can be very slow and expensive. Ideally the defence should use the hearing to test fully the prosecution case. But often the proceedings serve to present the prosecution case and little else. The wastage in time and money is particularly acute when the accused pleads guilty in the higher courts after being committed for trial.
At the same time, the traditional form of committal procedure in New South Wales serves two primary purposes. First, it ensures that a person will not be required to stand trial for an indictable offence unless a prima facie case has been established.73 It thus serves as a safeguard against speculative prosecutions by requiring that the evidence be such that, if uncontradicted at the trial, a reasonable jury may convict upon it, Second, committal proceedings give to the accused full notice, not only of the charge against him, but also of the evidence which will be called to support the charge.74 At the conclusion of the proceedings the accused knows substantially what case has to be met. He has an opportunity of deciding how to plead and of seeking to obtain the evidence needed to answer the prosecution’s case.
There are other advantages. Committal proceedings enable witnesses to give their evidence whilst the matter is still fresh in their minds; the reliability of witnesses is tested, and the prosecution may discover weaknesses in its case at a time when they can still be remedied. Committal proceedings may lead to a withdrawal of the prosecution by the entry of a nolle prosequi, may help in the proper framing of the indictment, may assist in estimating the length of trial, and may encourage a plea of guilty through the presentation of a strong case for the prosecution.75
There is a strong body of opinion in England which holds that the primary aim of committal proceedings is not satisfied under the new procedure. It is put that a significant number of persons are committed for trial on evidence which does not justify a committal. It is not possible to support this opinion statistically but, from the many conversations I have had on the subject, I have no doubts that it is well-founded. Several reasons have been advanced to explain why cases are committed for trial when a submission of “no case to answer” would stand a fair chance of success. One reason is that solicitors do not always have time to prepare the case for a contested summary trial and they find it easier to agree to a committal under section 1 of the Criminal Justice Act 1967 (U.K.) and then brief counsel. Another reason is that some solicitors undertake more business than they, or their staff, can cope with efficiently. A further reason is that defence lawyers consider that delay may assist their clients. And it is said that the prosecution often welcomes the consent procedure because it allows more time to strengthen what may be a very weak prosecution case.
There is no move in England for the abolition of the committal procedure in its new form. That would be seen as a retrograde step, as the advantages of the new procedure demonstrably outweigh its disadvantages. To revert to the old form of committal, in all cases, would be impracticable because of the burden it would impose on magistrates and staff. The new system is on a firm footing, subject to finding a solution to the problem caused by weak cases being committed to the Crown Court.
One suggested solution is that provision should be made for magistrates to consider, on the basis of written statements, whether there is a case to answer. Such a provision could either require them to read the statements or simply enable them to do so. The James Committee has raised two valid objections to this suggestion.76 First, it is not practicable because it would, in obliging magistrates to read the statements, impose an unacceptable burden on them and an even heavier burden on their clerks, who would also need to read the papers. Even if the power were only permissive, it would be necessary, in virtually every case, for some preliminary examination to be made of the papers in order to decide whether to refer them to the bench. Second, the suggestion is not desirable because it offends against the fundamental concept of a committal under section 1 of the Criminal Justice Act 1967 (U.K.) which is a committal without consideration of the evidence by the court.
Another solution, proposed by the James Committee, is that, before a person is committed for trial under section I of the Act, the person conducting the prosecution, and the defence advocate, should be required to sign a certificate to the effect that they have examined the statements of the witnesses and are satisfied that the case is suitable for committal for trial under the section, without consideration of the evidence by the court.77 The James Committee suggested that this procedure be made statutory.
It felt that this procedure would remind the prosecuting police or solicitor to consider whether the offence charged was supported by the evidence, and, if so, whether the interests of the parties and the administration of justice would be better served by either reading the statements to the court or hearing the evidence of some or all of the witnesses. It also considered that this innovation would ensure that the accused’s solicitor examined the statements and satisfied himself, on the evidence disclosed, that the case was a suitable one for committal under section 1. A specific sanction was not thought necessary or advisable, because the legal profession could be trusted to act in accordance with the duty owed by them to their clients and to the court. Abuse of the system would be very uncommon and the court could give directions to the taxing officer if it were necessary that he take account of any exceptional cases. No additional measures were considered necessary.
I do not share the Committee’s enthusiasm for this proposal. If my assessment of the position in England is correct, the present problem can be primarily attributed to pressures placed on solicitors through shortages of time, staff and finance. The solution to the problem should involve a procedure which reduces these pressures. In my view the parties may initially pay some attention to the formal requirements of the new system, but it would not be long before the procedure became a meaningless routine, with weak cases proceeding to the Crown Court as before.
I recommend that there be introduced in New South Wales a new form of committal proceedings of the type now in use in England and Wales; that is to say, a person, with his consent, may be committed for trial on the basis of written statements, without consideration of the evidence by the magistrate.
I further recommend that this innovation be made subject to conditions similar to those now obtaining in England and Wales. The most important conditions are that: the accused is not less than 18 years of age; the accused and any co-accused persons are legally represented; the written statements, which constitute the evidence for the prosecution, are in the form of statutory declarations or statements verified by affidavit; and the accused and any co-accused persons consent to committal for trial without consideration of the evidence by the magistrates. The court may, of its own motion or on the application of any party to the proceedings, require a person who has made a statement to attend to give oral evidence.
Under the present procedure, committals can be measured in hours or days and, at times, weeks and months. The new procedure takes only a few minutes. It saves the time not only of courts but of witnesses, with considerable saving of expense and mitigation of inconvenience as a result.
The problem, experienced in England, of weak cases proceeding to the Crown Court is a matter of concern. It is not easy to determine whether, in New South Wales, weak cases will proceed to the District Court and to the Supreme Court for jury trial. Indeed, it is difficult to know how popular the new form of committal will be.
In my view, it would be wise to experiment by allowing the new procedure to operate in a small number of courts and by assessing, not only the extent to which the new form is used, but also the quality of the cases in which the consent procedure is adopted. However, it would be unwise to commence this experiment unless cases where the accused has been committed for trial can be thoroughly “screened” before trial. In my view, a more thorough “screening” procedure can be introduced without undue expense.
In New South Wales, power to set in motion a trial for an indictable offence is restricted to the Attorney General, the Solicitor-General and the Crown Prosecutor, although, in practice, most prosecutions are conducted by Crown Prosecutors. Some offences cannot be prosecuted by a Crown Prosecutor without the leave of the Attorney General. But Crown Prosecutors are prosecutors in their own right, not delegates of the Attorney General.
Normally, the filing of an indictment by a Crown Prosecutor is preceded by the laying of an information by a police officer in a Court of Petty Sessions. Thereafter a preliminary hearing results in a committal for trial. The depositions of evidence at the preliminary hearing are sent to the Crown Prosecutor who decides whether there is sufficient evidence to justify a trial. The Crown Prosecutor may reframe the char&e, add new charges, or prefer a different charge entirely. He may decide that the evidence is insufficient and decline to proceed. If an indictment is filed the prosecutor can still bring proceedings to a close before final adjudication by entering a nolle prosequi, which is simply a notice of discontinuance.
In determining whether to file an indictment, a Crown Prosecutor in Sydney has two major sources of guidance. First, prosecution witnesses at the committal are generally tested in cross-examination by a solicitor or counsel for the accused. In Sydney the accused is represented in approximately 90 to 95 per cent of committals for trial. Of course the testing of the prosecution case is not always as thorough and extensive as it ought to be. However, the defence advocate’s cross-examination is to some extent supplemented by questions from the magistrate, who must be satisfied there is a prima facie case before committing the accused for trial.
Second, the Crown Prosecutor is assisted by a report prepared by a legal officer from the office of the Clerk of the Peace. It includes formal information, such as the name of the accused, details of the charge, a statement of the facts, a list of the witnesses and a summary of their evidence, a list of additional witnesses and a summary of what evidence they are expected to give, observations and comments on the strengths and weaknesses of the prosecution case, and a recommendation on the appropriate charges.
If the consent procedure is introduced the Crown Prosecutor will not have the assurance that his witnesses have been tested in the lower courts. In my view this disadvantage can be offset by giving to the Clerk of the Peace a more important role in “screening” a case before trial. At present, witnesses for the prosecution are rarely interviewed prior to indictment. There seems to be no reason why officers of the Clerk of the Peace should not then interview important witnesses. A lawyer can form a very good idea of the reliability of a witness by “cross-examining” him on his statement prior to trial.
The responsibility for presenting a case to answer to a jury remains that of the Crown Prosecutor. If he elects to proceed he must sign an indictment in his name. If he is unsure whether or not a critical witness is reliable it is his responsibility to use the assistance available. Should weak cases be presented before the court he must shoulder the blame. In New South Wales there cannot be any doubt as to who is in charge of the prosecution case and who is responsible for it.
The innovation I propose will not be without expense. All accused persons must be represented for the new procedure to operate. But I have already pointed out that, in Sydney, most accused persons are represented at their committal for trial. It would not be unduly expensive to close the remaining gap by authorizing solicitors from the Public Solicitor’s Office to conduct these committals. The professional staff of that office already provide legal aid in committal proceedings where offences fall within section 476 of the Crimes Act, 1900, i.e., those indictable offences triable summarily with the consent of the magistrate and of the accused. Further expense would have to be incurred in expanding the office of the Clerk of the Peace. However, in most indictable offences, the success of the prosecution case turns on the reliability of one or two witnesses. Thus, most witnesses would not have to be interviewed. In many cases the principal witnesses are policemen, and a preliminary interview would not be warranted. Any additional expense must be balanced against the considerable savings that would be effected by the new procedure. In my view, the case for experimenting with committals for trial by consent is a convincing one.
Footnotes
73. Criminal Law and Penal Methods Reform Committee of South Australia, Third Report on Court Procedure and Evidence, (1975) p. 7 1.
74. Ibid.
75. Frohlich, “Committal Procedures in England and Australia”, (1975) 49 A.L.J. p.561.
76. The Distribution of Criminal Business between the Crown Court and Magistrates’ Court, Cmnd. 6323, (1975) para. 234.
77. Id. Paras 235-239.
