I. Introduction

85. The committal for trial is arguably the most controversial part of the criminal process in New South Wales. Some commentators, for example, Mr. Justice Blackburn, Chief Justice of the Supreme Court of the Australian Capital Territory, describe committals as "a total waste of time". On the other hand, Mr. Justice Wilson, of the High Court of Australia, has said that committals are designed to facilitate the administration of justice and they serve this purpose by marshalling the evidence and requiring the magistrate to be satisfied that the evidence establishes a prima facie case before the accused person is committed to stand trial.

II. Before the Trial

A. INTRODUCTION

86. In this context, we use “trial” in the sense of trial on indictment before judge and jury. We are concerned here with some of the procedures which lead to trial with what the objectives of these procedures are, or ought to be, and with how best to achieve these objectives. We consider, first, the committal system now used in New South Wales, secondly, (as an optional alternative) “paper committals”, and, thirdly, other pre-trial procedures as a substitute for, or a supplement to, committals. whether oral or “paper”.

B. EXISTING COMMITTAL PROCEDURES

1. The Objectives

87. There seems to be general agreement that the primary objective of our committal procedures is to ensure that a person should not stand trial unless evidence has established that there is a prima facie case against that person. There is not, however, general agreement on the secondary objectives of our committal procedures.

88. In practice, committals often serve the purpose of enabling the defence to assess the strength of the prosecution case. In this sense, Committals act as a form of pre-trial discovery for the benefit of the defence. Prosecution witnesses can be tested under cross-examination and sometimes, but not always, the essential issues to be determined at the trial can be clarified.

89. On the other hand, the courts have generally been reluctant to acknowledge that discovery of the prosecution case is a proper objective of a committal for trial, or that the procedure is designed to provide the defence with an opportunity to cross-examine the prosecution witnesses as a form of rehearsal for the trial.

90. We do not have to resolve this debate at this stage, but we invite comment on it.

2. The Advantages and Disadvantages of Committals

91. Some of the perceived advantages of committals are:

• no person is put on trial without a prima facie case having been first established against him or her;
• the evidence is sifted and issues are defined, thus shortening any trial; and
• ensuring that facts in dispute are put to the jury;
• a weak case against a person will be revealed, and the person concerned will be discharged quickly, a particularly important consideration if the person is in custody;
• if a person is committed for trial the offence charged will be one appropriate to the facts disclosed;
• witnesses are examined publicly and orally, and thus their strengths and credibility are tested in a way which cannot be matched by any other procedure for discovery;
• the costs of a criminal trial which far exceed the costs of committals, are not incurred in respect of weak cases;

92. Another advantage sometimes claimed for committal proceedings is that they enable the solicitor for an accused person to protect a client against himself or herself by permitting the solicitor to analyse the prosecution evidence, test it by cross-examination, and, if necessary, advise the client that the likely outcome of a trial is that the jury will convict When this happens the solicitor may be able to suggest that a plea of guilty would be in the best interests of the client.

93. Some critics of the committal system refuse to admit all the advantages claimed for it, and point to disadvantages. They say, for example:

• in practice, little sifting of evidence and defining of issues results from committal proceedings, and the length of the trial is seldom influenced by those proceedings;
• because of the lower level of evidence required for a committal order than for a conviction, a case which is “weak” at trial is frequently enough to warrant a committal order, and the result is that that case is presented twice before the accused is acquitted;
• the costs of committal proceedings plus trial far exceed the costs of a trial alone;
• it is an unwarranted imposition on witnesses and, in many cases, duplicates what is an unpleasant and traumatic experience for them, to require them to go through their evidence and to be cross-examined twice;
• as the prosecution is under no obligation to adduce all the evidence it will call at trial, committal proceedings are not necessarily an adequate means of enabling the defence to discover the prosecution case; and
• committal proceedings are wasteful of time, money, and effort, and their legitimate functions could be more efficiently performed through a system of pre-trial procedures designed to effect disclosure of the prosecution case, and such limiting and pre- trial determination of issues as co-operation by the defence will allow.

94. The committal proceeding has become so established and well entrenched apart of the criminal procedure of this State that the strongest of argument would be necessary to justify its abolition. However, criticism of it has been growing in strength over recent years, as what appear to be shortcomings in the system are recognised.

C. PAPER COMMITTALS

95. New South Wales is the only jurisdiction in Australia where provision is not made for committals for trial to be based on written, as distinct from oral, statements of witnesses. We stress that we see paper committals as possible alternatives to, not necessarily as substitutes for, either existing committals for trials or other pre-trial procedures.

96. We are aware that proposals for paper committals have been drafted by the Criminal Law Review Division of the Department of the Attorney General and of Justice, and we stress that nothing that we say in this Paper is intended to delay the implementation of any recommendations for their adoption made by the Division.

97. Two purposes can be fulfilled by the use of written statements instead of oral testimony. These statements may be employed as a means of making the committal procedure more efficient, for the witnesses' need to attend and recite their evidence is obviated and the court s time is saved. This leaves the court s function substantially unaltered, as the magistrate must still consider the evidence and determine whether it warrants committal. Alternatively, if the relevant legislation permits, the use of written statements can remove from the court the task of examining the sufficiency of the evidence and thus create a mechanism which in effect, replaces the committal hearing.

98. In concluding our examination of paper committals, we draw attention to one problem in New South Wales which the introduction of paper committals might solve. We refer to section 51A of the Justices Act 1902. The section was enacted in 1955 and is concerned with the effect of pleas of guilty in committal proceedings. if a person is charged with an indictable offence not punishable with penal servitude for life, he or she may plead guilty at any stage of the committal proceedings, and may be committed for sentence, as distinct from trial.

99. Section 51A makes provision for the case where a plea of guilty is changed to a plea of not guilty upon the commencement of the proceedings for sentence in a higher court. The section requires that the case be remitted to the Court of Petty Sessions, and committal proceedings resumed. This procedure is criticised on the ground that it enables an accused person to avoid being sentenced by a judge who is not to his or her liking, and also because of the resultant delay in final disposal of the matter. Changes of pleas are common.

100. If paper committals were introduced in New South Wales, there would cease to be a need for committals for sentence. People who are now ready to plead guilty under sectional could reasonably be expected to elect for paper committal. They would then be committed for trial not for sentence. if still minded to plead guilty in the higher court, they would do so and be dealt with byway of sentence as is now the case. If, however, there was a change of mind and a plea of not guilty was entered, the trial could proceed without any reference back to a Court of Petty Sessions for resumption of the committal proceedings.

D. OTHER PRE-TRIAL PROCEDURES

101. The Law Reform Commission of Canada has expressed support for the view that procedures providing for discovery to accused persons of the prosecutions case should be introduced, and that the preliminary inquiry as it then existed in Canada should be abolished. It suggested that if an accused is fully informed, before the trial, and preferably before plea, of the prosecution's evidence, he or she ought then to be empowered to make an application to the court to be discharged on the basis of an absence of prima facie evidence. On such an application the court should be able to examine all the information disclosed by the prosecution to the defence and to base its decision on this information. In this way, the committal purpose of the preliminary inquiry would still be achieved, but with the advantage that it would be confined to those cases where the question of committal is really in issue. On this approach ancillary purposes of committals, for example, the perpetuation of evidence, would be dealt with as part of the discovery procedure.

102. The proposals of the Law Reform Commission of Canada have not yet been implemented. But, in 1981, the Philips Royal Commission on Criminal Procedure in England made somewhat similar proposals. The Philips Commission also argued for fuller disclosure of the prosecution case to the defence. It said that this disclosure should enable the defence to make some assessment whether there is sufficient evidence on paper to justify the case going to trial. If the defence wishes to challenge this, it should, unless the case would be brought to trial within a specified period, have the option of a hearing before a magistrate at which to make a submission of no case to answer.

103. The majority of the members of the Philips Commission doubted whether, on an application for discharge, a magistrate would need to make his or her decision upon the basis of oral evidence tested under cross-examination.

E. SOME ISSUES

104. Questions which need to be considered in the context of committals include the

following:

General

• Should committal proceedings be abolished in New South Wales?
• If so, what procedures, if any, should replace them?
• If not, are there reasons why New South Wales should not adopt the idea of paper committals for trial as an alternative, at the election of the defendant, to the present proceedings?

Paper Committals

• Generally, in what circumstances should paper committals be used?
• Should paper committals be allowed without consideration of the evidence by the magistrate?
• Should written statements be admissible in proceedings involving an unrepresented defendant?
• Should written statements be admissible in proceedings relating to all indictable offences?
• Should the court be empowered to delete any inadmissible material in a written statement?
• Should there be an alternative method of proceeding whereby the written statements of some witnesses are used and other witnesses are examined orally?
• Should written statements admitted as evidence in a committal be admissible as evidence at a trial if the witness is not then available?

III. Particular Problems in the Present Form of Committals

THE TITLE OF THE PROCESS

105. We suggest that if committal proceedings are retained, they be called “preliminary inquiries.”

106. We suggest that only magistrates should be empowered to preside over committal proceedings.

B. THE JOINDER OF ADDITIONAL DEFENDANTS

107. We suggest that it may be useful to make provision for the joinder of additional defendants, even after committal proceedings have commenced.

C. THE APPLICATION OF THE RULES OF EVIDENCE

108. Should magistrates be given wider powers to control cross-examinations, and wider discretion in relation to the application of rules of evidence, in committal proceedings?

D. THE CRITERIA FOR COMMITTAL

109. We invite submissions as to the criteria upon which magistrates should be required to act under section 41(2) and section 41(6) of the Justices Act, 1902, and the manner in which those criteria might be stated.

E. GUILTY PLEAS AND COMMITTAL FOR SENTENCE

110. Should pleas of guilty under section 51A of the Justices Act, 190 2, be limited to offences not punishable by penal servitude for life?

111. We suggest that a defendant should be legally entitled to call evidence as to his or her good character in proceedings under section 51A of the Justices Act 1902.

112. We invite comment on a proposal that section 51A of the Justices Act, 1902, be amended to provide that if a defendant has been committed for sentence following a plea of guilty, and does not adhere to that plea before the higher court, the judge of that court should have a discretion either to remit the matter to the Court of Petty Sessions or to direct that it proceed to trial without further committal proceedings.