I. Introduction

17. When considering criminal procedure it is necessary to appreciate that procedure at 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

18. 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. 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 directives".

19. A number of different methods of studying "the system" have from time to time been proposed and we do not rule out any particular 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 may be affected by it. 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.

III. Objectives: General

20. 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.

21. 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. Examples of proposals for minor amendments in existing rules include those relating to the wording and the service of summonses.

22. 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.

IV. Objectives: Long Term

23. 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 include:

• 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?

V. Objectives: Short and Medium Term

24. It seems that there is general agreement that certain rules are in need of change. Section 41(6) of the justices Act, 1902, for example, is criticised as providing inconsistent criteria upon which magistrates, are to base their decision whether to commit for trial. This matter (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.

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.