I. INTRODUCTION

6.1 When considering criminal procedure it is necessary to appreciate that procedural rules cannot be viewed in isolation. They necessarily interact not only with the substantive law, but also with those individuals and organisations which are the agencies through which that law is applied. Accordingly, criminal procedure should be seen not as an entity in itself but as an integral part of the criminal Justice System.

II. CRIMINAL PROCEDURE AND THE CRIMINAL JUSTICE SYSTEM

6.2 The expression “the criminal justice system” is a convenient and short description of a complex whole. Whether the use of the term “system” is justified at all is a matter for debate, and has been debated elsewhere. ¹ Criminal justice in Australia has been described by one commentator as “made up of a random and somewhat bizarre collection of individuals and agencies without any organised or interrelated premises or directive.” ²

6.3 A number of different methods of studying the “system” have from time to time been proposed. ³ These include examining the structure of the agencies that operate the system, such as the police, prosecutors, court and prison officials. An examination of this kind would analvse the respective functions of these agencies and the characteristics of persons, such as magistrates and judges, who discharge those functions. An alternative approach is to scrutinise the decision-making process and the interaction of policies and practices among the courts and operational agencies. ⁴

6.4 We do not rule out any partictilar approach at this stage, however, we prefer to consider the decision-making process involved in making the system work, and the impact of any procedural rule upon the parts of the system which maybe affected but we would consider it unwise, for example, to contemplate a rule requiring Committal proceedings to be completed within a specified time after an accused person’s arrest without assessing the likely impact of the rule on police investigators, prosecutors, and the administrators of Courts of Petty Sessions. Similarly, we would think it shortsighted to consider imposing rules upon police investigators, and others responsible for gathering evidence, without having regard to the attitude of the courts towards the admission and rejection of evidence.

6.5 We mention these matters not for the purpose of indicating likely areas of work, but for the purpose of illustrating both the extensive ramifications of criminal procedure and the need to be conscious of them all.

III. OUR OBJECTIVES AND WORK PROGRAM

A. Objectives: General

6.6 Our terms of reference enable us to consider proposals which would have far-reaching consequences for the system as a whole, and others which would involve no more than a minor amendment to an existing rule. Clearly, proposals of the former type will only mature into recommendations after a great deal of deliberation and consultation while those of the latter type are capable of being given effect much more quickly.

6.7 Examples of proposals with far-reaching consequences include those which may take some offences out of the criminal justice system altogether and those relating to a possible restructuring of statutes concerned with criminal procedures and related matters. These are foreshadowed later in this chapter. ⁵ Examples of proposals for minor amendments in existing rules include those relating to the wording and the service of summonses. These are dealt with in chapter 9. ⁶

6.8 It would be possible for us to work first on the major proposals in order to avoid “wasting” work on minor amendments to provisions which may ultimately cease to exist if more far-reaching recommendations are adopted and implemented. It would also be possible to work first on the simpler matters with a view to making recommendations without the delay that would be involved in formulating recommendations on the major proposals. Our intention is to work concurrently at varying levels, pursuing what we see as long term medium term and short term objectives. It is possible that matters that can be dealt with relatively speedily will have a significant effect upon the efficiency of our criminal procedures and will prove to be valuable even if some of those procedures are subsequently replaced. Similarly, we regard it as desirable that we have, and develop, an appreciation of the ultimate goal towards which we are working as we set about more immediate tasks.

6.9 We believe it appropriate that what we have in mind as long term objectives be made known at this early stage. We expect later to receive detailed submissions concerning them but their statement now puts our current work into context and enables any who wish to do so to make submissions in general terms.

B. Objectives: Long Term

6.10 The matters with which we propose to deal in the long term can conveniently be considered as potential answers to a series of questions. These are:

• What offences should attract the rules of criminal procedure?
• Should there be a standard method of defining those offences?
• How, and where, ought provisions relating to criminal procedure be found in the law?
• By whose decision made in what circumstances and upon the basis of what criteria, are people to be charged?
• In what courts are these matters to be determined, and how should those courts be structured?
• What roles should be played by the various agencies within that court system and in particular, should there be a clearer separation of functions between prosecution and courts?

1. What Offences Should Attract the Rules of Criminal Procedure?

6.11 At present criminal procedures in New South Wales apply to all criminal offences. As explained in chapter 2, these offences are divided into felonies and misdemeanours, and, for other purposes, are divided into indictable and summary offences. In chapter 8, we consider the distinction between indictable and summary offences. Our long term proposals include a consideration of the abolition of the distinction between felonies and misdemeanours. On one view, that distinction has long ceased to have meaning, both as to the seriousness of the offences to which it is applied and as to penalty.

6.12 There is, however, a new distinction which perhaps could properly be drawn between those offences which ought to carry the consequences customarily associated with criminality, and those which ought not. We have under consideration a proposal that a number of “offences” be removed from the operation of the criminal law. The proposal is that this apply to regulatory and other minor offences in respect of which it would accord with current social attitudes to say that although the imposition of penalties is warranted the conduct ought not be labelled “criminal”. Where to draw the line is ultimately a policy decision for others to make; our main concern will be with analysing the proposal and the procedures which would be appropriate to it.

2. Should There be a Standard Method of Defining the Offences Which Should Attract the Rules of Criminal Procedure?

6.13 The nature of the procedures involved in trying persons charged with criminal offences is necessarily dependent upon how those offences are expressed. At present in respect of many offences, there are technicalities associated with their proof, and highly complex directions which are required to be given to juries in indictable matters. Many of these might be overcome if a standard method were adopted of specifying offences. What is envisaged in respect of all crimes is that the relevant legislation would describe a basic offence, with specified aggravating (or mitigating) circumstances which might affect the maximum penalty.

6.14 One illustration is the offence of robbery, in respect of which the present provisions are to be found in sections 94 to 98 inclusive of the Crimes Act 1900. Under the proposal there would be a single offence of robbery. The features which presently distinguish the different offences, for example, being armed, being in company, or causing wounding, would be expressed as being aggravating circumstances having a stated effect upon penalty. A more striking illustration relates to the offence of stealing, which might be expressed as a single offence, but which presently is the subject of an array of provisions to be found in sections 116 to 163 inclusive and section 501 of the Crimes Act.

6.15 If this proposal were to be adopted, verdicts would be returned first in respect of the “basic offence”, with the aggravating circumstances being the subject of separate findings. At this stage, we are merely foreshadowing further consideration of the proposal which will be dealt with in more detail in a later issues Paper. One of the claimed advantages for the proposal is that a jury, having returned a verdict of not guilty in relation to the offence charged could consider, as the basis of an alternative verdict, any lesser summary offence all the elements of which are included in the offence charged. This would overcome the necessity for further trials on “backup” charges. An example is a charge of culpable driving in respect of which there is frequently a charge under the Motor Traffic Act 1909, held in abeyance, and which is proceeded with in the event of an acquittal on the culpable driving charge.

3. How and Where Ought Provisions Relating to Criminal Procedure to be Found in the Law?

6.16 At present the rules of procedure affecting criminal matters in New South Wales are scattered through a number of statutes, and, in some instances, are still dependent upon an interpretation of ancient common law rules. The common law, for example, governs the Attorney General’s powers in relation to indictable matters. These powers were the subject of litigation as recently as 1980 in Barton v. The Queen. An illustration of a procedure which is the subject of statutory provision is the summary procedure available in the Supreme Court under the Supreme Court (Summary jurisdiction) Act 1967. Where rules of criminal procedure are to be found in our statute law they are scattered through a number of different acts such as the Crimes Act 1900, and the justices, Act 1902. There they rub shoulders with provisions dealing with substantive criminal offences, rules of evidence, the appointment of magistrates, and many other matters.

6.17 There may be a case for codification of the rules of criminal procedure, or at least a rationalisation and restatement of those of them which are the subject of statutory provision This could be part of a wider scheme of rationalisation of statutes relating to criminal matters, with the possibility of those matters becoming the subject of a Crimes Act, a Criminal Procedure Code or Act a Criminal Appeal Act a Courts Act a Power of Criminal Courts Act and a Criminal Evidence Act. If the application of these Acts were limited to matters which retained a “criminal” status and a number of minor offences were excluded from the list of “crimes”, then there might also be a Civil Offences Act to deal with the procedure in respect of those matters. A consideration of a possible rationalisation of the relevant statutes along these or similar lines is one of our long term objectives.

4. By Whose Decision, Made in What Circumstances and Upon the Basis of What Criteria, are People to be Charged?

6.18 Although the question whether a person who has been charged with an offence should be convicted or acquitted, is determined by the application of a great number of carefully developed and, at times, highly complex rules of law, little is known about the basis upon which decisions to prosecute are made. We believe that the task of reviewing criminal procedure in this State cannot be complete without consideration of this important question. Issues to be considered include where the responsibility for the decision to prosecute lies, both as a matter of law and in practice, and the criteria upon which the decision is based.

6.19 In summary matters, the decision is generally that of a police officer or of an officer of some other law enforcement agency. In indictable matters the position is more complex, as the case does not get to trial until there have been a number of decisions. These include the initial decision to prosecute, generally a decision by a magistrate to commit for trial and a decision by a Crown Prosecutor to determine the offence that will be alleged if a bill is found. The Attorney General has the power to order “no bill”, and also has the power to proceed ex officio if no committal order has been made. In respect of each of these steps in the process, both the law and the practice may be examined.

6.20 From time to time in New South Wales consideration has been given to the possibility of establishing an office of a Director of Public Prosecutions. Further consideration of that possibility might be appropriate.

5. In What Courts are These Matters to be Determined, and How Should Those Courts be Structured?

6.21 We have already in chapter 3 referred to the present hierarchy of courts. Any complete review of criminal procedure will necessarily involve an examination of their structure. Questions to which we believe consideration should be given in the long term include whether there should be two separate higher courts for the purpose of hearing trials on indictment. The English Crown Court system suggests itself as an obvious alternative. If New South Wales does continue to have two separate courts exercising criminal jurisdiction in respect of trials on indictment, it may be appropriate to consider the limits of their respective jurisdictions. The present law is largely based upon the penalties that used to apply in 1955. Another area which may profitably be examined relates to the tribunals which deal with criminal appeals, both front decisions in similar matters and decisions in trials on indictment.

6. What Roles Should be Played by the Various Agencies Within the Court System, and in Particular Should There be a Clearer Separation of Functions Between Prosecution and Courts?

6.22 Reference is made in chapter 3 to the present role of the Clerk of the Peace and Solicitor for Public Prosecutions. The dual role of that officer, who is at the one time the solicitor for the prosecution in respect of the majority of indictable matters and an officer of the court which deals with the majority of those matters, may be thought difficult to reconcile with the principle that the court stands impartially between prosecution and defence. If there were but a single court dealing with trials on indictment only a single registry would be required to take over all the court work now done by the Clerk of the Peace.

C. Objectives: Short and Medium Term

6.23 We have already received a number of submissions from judges, magistrates and practitioners regarding particular aspects of criminal procedure. It seems that there is general agreement that certain rules are in need of change.

6.24 As mentioned in paragraph 1.15, examples include the provisions relating to committals for sentence under section 51A of the Justices Act, 1902, and the magistrate’s decision to commit for trial provided f or in section 41(6) of that Act. So far as the former is concerned, the view is generally expressed that judges ought not to be required to return a matter for committal proceedings if a defendant who has pleaded guilty before a magistrate and been committed for sentence changes his or her plea. Subject to a consideration of submissions received, we believe that this is a matter in respect of which a recommendation could be made in the short term, even though the later adoption of a proposal for “paper committals” (considered in chapter 10) may make it unnecessary to provide for committals for sentence at all. ⁷ Section 41(6) of the Justices Act, 1902, is criticised as providing inconsistent criteria upon which magistrates are to base their decision whether to commit for trial. This matter (also considered in chapter 10) may be dealt with by a “short term” recommendation despite the long term objective to review the whole system of discretionary decisions to prosecute and to send for trial. ⁸

6.25 In the medium term our objective is to isolate some general areas of major concern and as soon as possible to make recommendations with regard to them. Examples include committal proceedings and appeals from magistrates.

6.26 In a later part of this Paper, we deal with committal proceedings and raise general questions as to whether they should be retained as part of the procedure relating to indictable offences, and whether, if they are retained, provision should be made for the use of written statements rather than oral evidence in certain circumstances. ⁹ As to appeals from magistrates, there seems to be general agreement that the present complex position needs to be rationalised. Aggrieved parties at present have the right to a re-hearing before a judge, and may, in certain circumstances, proceed by way of stated case or common law or statutory prohibition. The type of “appear” chosen might take the parties to the District Court or to the Supreme Court.

6.27 Matters of this kind give rise to important policy considerations. They cannot be dealt with in the short term like simple amendments to existing rules, but nonetheless we see them properly to be regarded as medium term projects, not to be delayed while consideration is given to the long term objectives outlined above.

D. Our Work Program

6.28 We propose to publish four Issues Papers directed towards our short and medium term objectives. In each of them we will seek to identify policy questions which in our view, need to be considered in the course of our reference. Thereafter, we will separately publish other Issues Papers on what we see as our long term objectives.

6.29 In this Paper, to this point we have presented background information on the structure and functioning of our criminal court system and explained the manner in which we are approaching our task. The remainder of this Paper is primarily concerned with the jurisdiction of Courts of Petty Sessions and with procedural problems encountered in those courts. It deals with committal proceedings, and considers general policy questions with regard to them.

6.30 The second Issues Paper will consider the period between committal and trial in indictable matters, and trials on indictment in general in the third issues Paper we will be considering matters relevant to sentencing, and in the fourth we will consider appeals.

6.31 We do not propose to defer the making of a report on this reference until after all the Issues Papers have been published. We invite submissions on the subject matter of each Issues Paper as it is published, and we expect to make reports from time to time before the last of the Issues Papers, dealing with our long term objectives, has been produced.

1. P. Sallmann, “Criminal Justice: A Systems Approach” (1978) 11 Aust. & N.Z Journal of Criminology 195, and P. Wilson, “Crime and Criminal Justice: Towards a Saner Approach” in D. Chappelland P. Wilson (eds), The Australian Criminal Justice System (Butterworths, 2nd ed. 1977), p.12.

2. P. Wilson n.1 above, p.12.

3. Newman, Introduction to Criminal Justice (Lippincott, Philadelphia, 175) pp 4-6.

4. Ibid.

5. See paras.6.11-6.13, and 6.17.

6. See paras.9.55-9.56, and 9.5-9.8.

7. See paras. 10.22- 10.39.

8. As to the Justices Act, 1902, s.41 (6), see paras. 10.61- 10.66.

9. See paras.10.22-10.53.