INTRODUCTION

1. This Issues Paper is the first to be published in the course of the Commission’s reference

“to inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings, and matters incidental thereto...”

The Paper is divided into three Parts.

2. The first Part Chapters 1-4, is introductory. Chapter 1 is mainly concerned with the need for our terms of reference; Chapter 2 with some of the idiosyncratic language of criminal procedure; Chapter 3 with the structure of the criminal courts system in New South Wales, and Chapter 4 with how criminal proceedings are initiated, and the procedures which then come into play.

3. The second Part of the Paper, comprising Chapters 5 and 6, outlines our general approach to this reference. Chapter 5 is intended to open wide ranging debate about the principles which ought to underpin criminal procedures. Chapter 6 states our present view on the scope of the review of criminal procedure we shall undertake in the course of the reference. We list there, in broad terms. not only our general objectives but also our long term, short term. and medium term objectives. In addition, we speak of our work program.

4. In this Paper, we are concerned mainly with procedures in Courts of Petty Sessions. A second Paper will consider the period between committal and trial in indictable matters, and trials on indictment in general a third Paper will consider matters relevant to sentencing-, and a fourth Paper will consider appeals.

5. We stress in Chapter 6 that we do not propose to defer making reports on this reference until after all the Issues Papers have been publisher We will 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 our Issues Papers, dealing with our long term objectives, has been produced.

6. The third part of this Paper, Chapters 7-10, is concerned solely with Courts of Petty Sessions. We consider delays in those courts, their jurisdiction, and some of their procedural problems. Finally, we examine the subject of committals for trial.

7. We concentrate on Courts of Petty Sessions at this early stage of our work on this reference for two main reasons. First, as indicated in Chapter 3, most of the criminal court work of New South Wales is done in these courts, And, secondly, their work-load at any given time influences the work- load of the entire criminal courts system. Almost all cases dealt with in the criminal jurisdictions of the Supreme Court and the District Court are first dealt with in Courts of Petty Sessions. In short, they constitute a pipe through which most criminal work is conveyed; if the pipe is obstructed, the work cannot flow as it should.

8. Chapters 2, 3 and 4 are descriptive and, for the purposes of this Summary, we make no further reference to them.

CHAPTER 1: OUR TERMS OF REFERENCE

9. In speaking of the need for our reference, we ask, by way of illustration some very general questions. The questions are:

• Is our criminal courts system coping adequately with its work-load of serious criminal cases (paragraph 1.10)?
• Can our existing procedures cope adequately with “white collar” and computer crime (paragraphs 1.11 and 1.12)?
• Is the law relating to criminal procedure readily accessible to those who need to understand the system (paragraphs 1.13-1.15)?
• Can juries, without additional assistance, cope with the complex laws they are called upon to apply (paragraph 1.16)?

CHAPTER 5: SOME GENERAL PRINCIPLES

10. Some principles are regarded as fundamental to, and an essential part of our criminal law. They are commonly referred to as the presumption of innocence, the standard of proof, the right to silence, and the privilege against self-incrimination Other established rules, as distinct from these principles, are under challenge. They include the following:

• An accused person at his or her trial on indictment may make an unsworn statement without becoming a witness and liable to cross-examination.
• If an accused person opts not to give evidence, no comment on that fact may be made either by the trial judge or by the crown prosecutor.
• The spouse of an accused person is not a compellable witness.
• No comment may be made upon an accused person’s failure to call his or her spouse.

11. If these rules, or any like them are to be changed, by reference to what tests or criteria should specific changes be proposed (paragraphs 5.9-5.15)?

12. Is a general approach based on balancing the need to protect the innocent from unacceptable risk of wrongful conviction against the need to seek “efficiency” in the criminal justice system a proper approach (paragraphs 5.9-5.11)? In this context, "efficiency' is used not only in the sense of avoiding unnecessary delay and expense, but also in the sense of facilitating the conviction of the guilty.

13. Is it feasible to go beyond "the balance" referred to and establish a framework of first principles as a means of measuring the adequacy of existing and proposed procedures, for example, by the use of criteria such as “fairness” and “openness and accountability” (paragraphs 5.12-5.15)?

CHAPTER 6: THE SCOPE OF OUR REVIEW

14. Our intention is to pursue what we see as long term, medium terra and short term objectives. We therefore regard it as desirable to outline, in general terms, possible long-term objectives towards which we are working as we set about more immediate tasks.

I. OBJECTIVES: LONG TERM (paragraphs 6.10-6.22)

15. 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?

II. OBJECTIVES: SHORT AND MEDIUM TERM (paragraphs 6.23-6.27)

16. In the short and medium terms 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 the summary jurisdiction of magistrates, committal proceedings, and appeals from magistrates.

CHAPTER 7: COURTS OF PETTY SESSIONS: DELAYS

17. In assessing the effectiveness of any criminal justice system a criterion of major importance is the absence of unreasonable delay in the disposition of cases passing through the system. For this reason, we consider the general question of delays in Courts of Petty Sessions, with particular emphasis on the extent of existing delays, their causes, and their effects (paragraphs 7.10-7.18, 7.19-7.27, and 7.28-7.32 respectively).

18. A preliminary question is what is a “proper” delay in disposing of a routine criminal case in a Court of Petty Sessions (paragraphs 7.4-7.7)?

19. Are existing delays acceptable (paragraph 7.18)? In answering this question it is necessary to distinguish between cases where defendants are in custody and those where they are not.

20. Do we identify accurately the most common causes and effects of existing delays (paragraphs 7.19-7.27 and 7.28 and 7.32)?

21. Should magistrates, for the purpose of reducing delays, be given additional powers to control proceedings in Courts of Petty Sessions? If so, what additional powers should they be given (paragraph 7.34)?

22. In Chapters 8 and 9, we consider some changes in the jurisdiction and procedures of Courts of Petty Sessions which are directed, in part, towards the problem of delays.

CHAPTER 8: COURTS OF PETTY SESSIONS: JURISDICTION

23. This Chapter is concerned with four main issues and foreshadows at later consideration of one other issue.

I. INFRINGEMENT NOTICES

24. Parking and many other minor traffic offences are dealt with by a “ticket” system or, as it is more commonly known an "infringement notice" system. Consideration is now being given by Government to an extension of that system whereby infringement notices must be enforced otherwise than by court action. The new system will involve the use of what are termed "self-enforcing" procedures (paragraphs 8.2-8.7).

25. Should self- enforcing procedures be extended beyond parking and other minor traffic offences and if so, to what offences, or categories of offences, should they be extended (paragraphs 8.8-8.11)?

26. If self-enforcing procedures are not so extended, should the present infringement notice system be extended to offences other than minor traffic offences and if so, to what offences (paragraphs 8.8-8.11)?

II. INDICTABLE OFFENCES WHICH MAY BE TRIED SUMMARILY

27. Some indictable offences may be disposed of summarily in Courts of Petty Sessions. Most, but not all, of these offences are listed in either section 476 or section 501 of the Crimes Act 1900. Those listed in section 476 may be dealt with summarily only if the defendant consents and the magistrate is satisfied that the case is one which may properly be disposed of summarily. On the other hand when a defendant is charged under section 501 with an offence listed in that section it will be disposed of summarily whether the defendant consents or not.

28. The issues we raise in the context of indictable offences which may be tried summarily vary in complexity. Section 476 offences may be dealt with summarily only with the consent of the defendant and no defendant would be deprived of the right to opt for trial by jury if the scope of that section were enlarged. The position is otherwise where the decision to proceed summarily is made by the prosecuting authority and the consent of the defendant is not required. Any enlargement of the scope of section 501 would deprive defendants charged under that section with the right to opt for trial by jury.

29. Issues raised in the context of section 476 (paragraphs 8.17-8.26) are:

• Should there be any change in the method of specifying the offences to which section 476 applies, and in particular, should the legislation continue to list specific offences or should the application of the section to any offence depend simply upon the prescribed penalty or some other criterion?
• Should any of the of fences now subject to the provisions of the section be removed and should any others be included?
• If a property value limitation is retained, is the present limitation appropriate, and if not, what change should be made?
• Are the present penalty limitations appropriate, and if not. what change should be made?

30. Issues raised in the context of section 501 (paragraphs 8.27-8.32) are:

• Is the present property value limitation in section 501 appropriate, and if not, what change should be made?
• Are the present penalty limitations in section 501 appropriate, and if not, what change should be made?
• Should further indictable offences be made triable summarily without the consent of the defendants

III. INDICTABLE OFFENCES WHICH OUGHT TO BE SUMMARY OFFENCES

31. Are there any offences now triable before a Judge and jury which should become triable only by a magistrate (paragraphs 8.34-8.36)?

IV. TRIAL BY JUDGE ALONE

32. The Supreme Court (Summary jurisdiction) Act, 1967, permits a defendant to choose to be tried by a Supreme Court judge alone but only in respect of a limited class of offences, mainly those involving alleged conspiracies and “white-collar” crime. There is no comparable provision in respect of other indictable offences. Should the right to choose trial by a judge alone be extended to other indictable offences, and, if so, to which offences? What procedural rules should then apply (paragraph 8.39)?

V. TRIAL ON INDICTMENT LEADING TO CONVICTION OF SUMMARY OFFENCE

33. As a long-term objective, we propose to consider a standard method of prescribing offences. One consequence of this would be to enable juries at trials on indictment to return alternative verdicts by which they acquit on the indictable charge and convict of a summary offence. The intention is that this would do away with the necessity for a separate summary trial The details of the proposal will be considered in a later Issues Paper. For the present we invite comment on the advantages of the proposal in general terms and on any objection in principle that may be seen to it (paragraph 8.40).

CHAPTER 9: COURTS OF PETTY SESSIONS: PROCEDURE

34. Some of the proposals made in this Chapter are at such a level of simple practicality as to approach the trivial. But, in matters of practice and procedure, the simplest of rules can have far-reaching consequences. in dealing with matters of this kind, we often make tentative suggestions for change rather than raising issues. In referring to parts of Chapter 9, we use the Roman numerals which correspond with the headings used in that Chapter.

II. THE SERVICE OF PROCESS

35. The provisions of the Justices Act, 1902, as to the persons by and upon whom and the place at which service is to be effected may be unduly restrictive and sometimes lead to inconvenience and delay. We raise the following issues (paragraphs 9.5 and 9.6):

• Should the service of summonses in indictable matters remain the responsibility of the police alone, and, if not, what alternative should be permitted?
• Should there be a provision permitting service upon a solicitor authorised to accept service on behalf of a defendant?
• Should there be a provision permitting service by leaving a copy at the defendants place of employment or business as an alternative to his or her place of residence?

36. We suggest (paragraphs 9.7 and 9.8) that relevant provisions of the Justices Act, 1902, be amended

• to specify the minimum age of the person with whom a summons may be left in the absence of the person to whom it is addressed;
• to state that if a person to be served is under a certain age, the process may be left with a parent or guardian with whom the person to be served is living;
• to provide that proof of service by a police or Sheriff s officer may be established by an endorsement on the document signed by the officer.

III. REPRESENTATION

37. Should persons who are not legally qualified be permitted to represent parties to criminal proceedings in Courts of Petty Sessions (paragraph 9.9)?

38. To what extent is the “McKenzie friend” procedure (that is, the use of a friend of a defendant to assist the defendant in court with advice and note taking) seen by magistrates and others as an abuse of the procedures of the court, if it is seen as an abuse, what safeguards might be prescribed to prevent abuse (paragraph 9.9)?

39. We suggest that solicitors appearing for parties be required to notify the court in writing, of their names, firms (if any), and addresses (paragraph 9. 10).

40. Should a solicitor who has filed a notice of appearance be permitted to withdraw from proceedings without the leave of the court (paragraph 9.11)?

41. Wesuggestthatforthepurposesofthecriminallaw,apersonwhomanagestheaffairs of a corporation should be able to appoint a representative of the corporation to do on behalf of the corporation anything that a natural person might do on his or her own behalf (paragraph 9.12).

IV. PRE-TRIAL PROCEDURES

Advance Disclosure of Prosecution Case

42. Should there be a more general requirement for disclosure of the prosecution case in Summary trials before magistrates What difficulties might such a requirement produce (paragraph 9.30)?

43. In what manner should any such requirement be expressed? Are technical terms such as “particulars” and “discovery” helpful or not (paragraph 9.31)?

Limiting the Issues

44. Should the alibi provisions of section 405A of the Crimes Act, 1900, be extended to summary matters, and are there other categories of defence evidence which should be subject to similar provisions (paragraph 9.41)?

45. Are there reasons why a magistrate should not, at a pre-trial conference, pursue the possibility of a defence be in raised which may necessitate the adjournment of the trial. If such a possibility is raised, are there reasons why the magistrate should not direct that particulars of the defence be given to the prosecution (paragraph 9.43)?

46. Should a defendant be permitted to make admissions as to matters of fact under section 404 of the Crimes Act, 1900, without the advice of his or her Counsel (paragraph 9.44)?

Resolving Certain Issues

47. Should there be pre-trial procedures in summary proceedings before magistrates designedtoleadtopre-trialresolutionofissuesoflawandquestionstouchingadmissibilityof particular evidence (paragraphs 9.46-9.50)?

V. SECTION 476 OF THE CRIMES ACT, 1900

48. What should be the criteria by reference to which a magistrate decides that an indictable offence may properly be disposed of summarily (paragraph 9.5 1)? At what stage of the proceedings should the decision be made by the magistrate (at the outset of the case by way of preliminary inquiry, or after the prosecution evidence has been heard, or at some other stage) (paragraph 9.54)?

VI. FORMS OF SUMMONS AND LISTING ARRANGEMENTS

49. We suggest that forms of summons be amended to provide more information for defendants (paragraph 9.55).

50. If appearance in answer to a summons is to enable the court to fix a date forbearing, or to deal with other preliminary matters, we suggest that administrative arrangements be made accordingly, for example, that a magistrate or other court officer set aside specified times for dealing with these matters (paragraph 9.56).

VII. PLEAS

51. Section 78 of the Justices Act, 1902, is concerned with the procedures to be followed when a defendant appears at the hearing of an offence punishable on summary of conviction. According to the section, the defendant is to be asked "if he has any cause to show why he should not be convicted.....". We are told that in practice defendants are usually permitted to plead guilty or not guilty. We suggest that the practice should be given legislative recognition (paragraph 9.57).

VIII. PROSECUTORS AND COURT OFFICERS

52. We suggest that police prosecutors should continue not to wear uniforms when prosecuting in court (paragraph 9.59).

53. We suggest that police officers who are used as court officers, ushers, and attendants, should not wear uniforms when acting in these capacities and if possible, should be made responsible to the magistrate while on duty in court (paragraph 9.60).

IX. THE MENTALLY ILL DEFENDANT

54. Should there be prescribed procedures to be followed in Courts of Petty Sessions, when a question arises is to a defendants fitness to plead (paragraph 9.64)?

X. WITNESSES

55. We suggest that the Justices Act, 1902, be amended to provide legislative authority for the issue of subpoenas in criminal Proceedings in Courts of Petty Sessions. If this is done, should it be necessary to retain the existing summons and warrant procedures for securing the attendance of witnesses and the production of documents (paragraph 9.68)?

56. We suggest that any procedures for securing the attendance of witnesses and the production of documents should ensure that the persons concerned are given prescribed information concerning their rights and obligations (paragraph 9.69).

57. We suggest that a subpoena or witness summons be served not less than a prescribed time before the relevant hearing, subject only to the qualification that a justice should be able to abridge this time in special circumstances (paragraph 9.70).

58. We suggest that the Justices Act 1902, be amended to provide that costs maybe awarded against a witness who fails to answer a summons, or comply with a subpoena, or to answer a lawful question or to produce documents (paragraph 9.71).

XI. COSTS

59. Is the present system of awarding and assessing costs working satisfactorily? Is there any call for the abandonment of “on the spot” assessments and for the substitution of a prescribed scale of costs, or a system for having a court officer certify that a bill of costs is reasonable (paragraph 9.72)?

60. We suggest that where a court holds that it has no jurisdiction to determine particular proceedings, it should nonetheless be empowered to make an order for costs (paragraph 9.73).

XII. CONTEMPT OF COURT

61. We suggest that procedures be prescribed for dealing with contempt in the face or hearing of a court (paragraph 9.75).

XIII. THE FUNCTUS OFFICIO RULE

62. We suggest that provision be made for a court to re-open proceedings, and to rectify orders, where, for example, a penalty has been imposed that is contrary to law, or an order has been made that is based on, or contains, an error of fact (paragraph 9.77).

XIV. CIVIL LIABILITIES OF JUSTICES

63. Should magistrates be afforded protection from civil liability ic in the course of their work, they act, whether ministerially or judicially, on the basis of an honest belief that they had jurisdiction even though they did not have it, or had exceeded it (paragraph 9.81)?

XV. COMPENSATION ORDERS

64. Should the Crimes Act, 1900, specify the persons who may make applications for orders for criminal injuries compensation under sections 437(1) and 554(3) of that Act, the time within which an application may be made, and the form of the application (paragraph 9.84)?

XVI. RECOGNIZANCES

65. What is the present use, and utility, of the “binding over” aspect of the recognizance process (paragraph 9.85)?

XVII. RULES OF COURT

66. Should there be detailed rules of court applicable to proceedings in Courts of Petty Sessions, and should a Rule Committee be constituted for this purpose (paragraph 9.86)?

CHAPTER 10: COMMITTAL FOR TRIAL

67. Thecommittalfortrialisperhapsthemostcontroversialpartofthecriminalprocessin New South Wales. For the purposes of the Chapter, we divide the subject into three parts: historical general and particular. In the general part, we raise broad issues under the heading "Before the Trial”. Among other things, we consider “paper committal” (committals based on written statements of witnesses as distinct from the oral examination of witnesses), and some alternatives to committals. In the particular part, we consider some proposals for change in the existing system in New South Wales.

I. BEFORE THE TRIAL (paragraphs 10.10-10.53)

General Issues

68. Under this heading, we ask the following questions:

• 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 as an alternative, at the election of the defendant, to the present proceedings?

Paper Committals

69. Under this heading, we ask the following questions:

• 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 written statements be in a prescribed form?
• Should written statements be served within a prescribed time before the commencement of the hearing, and in a prescribed manner?
• 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?

II. PARTICULAR PROBLEMS IN THE PRESENT FORM OF COMMITTALS

The Title of the Process

70. We suggest that if committal proceedings are retained, they be called “preliminary inquiries” (paragraph 10.55).

The Constitution of the Committing Court

71. We suggest that only magistrates should be empowered to preside over committal proceedings (paragraph 10.56).

The Joinder of Additional Defendants

72. We suggest that it may be useful to make provision for the joinder of additional defendants, even after committal proceedings have commenced (paragraph 10.57).

The Problem of the Non- appearing or Absconding Defendant

73. If paper committals are introduced, should the failure of a defendant to appear at a hearing, without reasonable cause orin specified circumstances, be deemed a valid consent to having the matter dealt with as a paper committal (paragraph 10.58)?

The Presence of the Defendant

74. Are there reasons why any defendant should not be able to be excused from attending committal proceedings if he or she is legally represented (paragraph 10.59)?

The Application of the Rules of Evidence

75. Should magistrates be given wider powers to control cross-examinations., and wider discretions in relation to the application of rules of evidence, in committal proceedings (paragraph 10.60),'

The Criteria for Committal

76. 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 (paragraph 10.66).

The Costs of Conveying a Defendant to Gaol

77. Section 43(2) of the Justices Act, 1902, enables a defendant committed for trial to be ordered to pay the costs of his or her own conveyance to prison. We suggest that the provision be repealed (paragraph 10.67).

The Taking of Depositions After Committal

78. We suggest that provision be made enabling witnesses to be called before a magistrate and for their depositions to be taken, even after a person has been committed for trial (paragraph 10.68).

Guilty Pleas and Committal for Sentence

79. Should pleas of guilty under section 51A of the Justices Act, 1902, be limited to offences not punishable by penal servitude for life (paragraph 10.70)?

80. We suggest that a defendant should be legally entitled to call evidence Is to his or her good character in proceedings under section 51A of the Justices act, 1902 (paragraph 10.71).

81. 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 (paragraph 10.73).