Significant questions have been raised over the past three decades, most recently by Victorian Attorney General Robert Clark, as to the benefits of the pre-trial system. In particular, whether having so many steps on the path to trial is simply contributing to already lengthy court delays.
Not surprisingly, the primary hearing in contention is the committal – a hearing that has been abolished, reviewed and refined in criminal jurisdictions across Australasia, the UK and Canada.
In theory, the committal hearing provides an opportunity to scrutinise the Crown’s case at an early stage, thereby filtering out weak or inappropriate prosecutions, identifying the key issues in contention, and informing an accused person’s pleading decision – that is encouraging them towards pleading guilty.
The benefits of the committal, if adhering to its primary objectives, are many, even from a purely financial perspective, the cost of a guilty plea being entered on or following the first day of a trial was estimated by Pricewaterhouse Coopers in 2008 in Victoria to stand at approximately $507 per hour in the County Court, and $645 per hour in the Supreme Court.
These figures don’t include the Crown’s preparation costs, the accused’s financial costs or the emotional costs arising from a late guilty plea.
Yet, the committal has consistently been identified as a “questionable” pre-trial process – even by those most involved in its use, such as former Victorian Director of Public Prosecutions (DPP) Jeremy Rapke QC.
Indeed across almost every Australian jurisdiction, Law Reform Committees and prominent legal individuals have been tasked with determining whether to abolish or refine the committal hearing, with Tasmania and WA doing away with the process altogether.
In Victoria, where the latest call for committal abolition has surfaced, there have already been reforms to improve its usefulness - Magistrates must now determine whether the evidence is sufficient to support a conviction at trial, rather than simply sufficient to warrant sending an accused to trial; and an accused can no longer reserve entering a plea at the hearing’s conclusion.
Similarly, the defence is now subject to limitations on whether they can cross-examine a witness and the types of questions they can ask– although this has been criticised for reducing the effectiveness of the filtering process, on the basis that the strength of the case cannot be adequately tested. More recently however, it has been suggested that such controls are not sufficiently stringent, and cross-examination remains a key factor contributing to unnecessary delay and duplication of what is ultimately heard at the trial.
The primary argument supporting committal abolition is that it essentially involves running a mini-trial before the “real” trial, which can be detrimental to victims, financially and resource-intensive, used to prolong the process, and all of this, for little gain, given that the majority of cases are committed to trial.
Between 2004 and 2007, on average, 80.4% of cases in Victoria were committed to trial. In the NT, the Law Reform Commission found that in the 2007-08 financial year, only two of 267 accused persons were not committed to trial. Perhaps reflective of this, the Victorian Magistrates’ Court no longer publishes data on the number of people committed to trial, instead keeping one figure detailing those committed to trial and those summarily finalised.
Quite possibly the central flaw in the current committal system, at least in Victoria, is that regardless of the Magistrate’s decision, the DPP has the statutory power to override it, and can elect to discontinue a prosecution that has been committed to trial, or give notice of a trial and proceed to the relevant superior court.
See for example, R v Debs , whereby a trial was held despite the Magistrate’s determination of insufficient evidence, and the accused was ultimately found guilty. Or, before the problems with the Office of Police Integrity investigation came to light, the DPP had already decided not to pursue a prosecution against former Victoria Police Association Secretary, Paul Mullet, despite the Magistrate committing him to trial. As a result, the real power to commit an accused to trial lies with the DPP, which in effect, reduces any motivation or need to run a committal.
In considering reformation of the committal process, it is important that the Victorian Government approach the review in a similar vein to that of Queensland and the NT, who examined the data detailing how many cases committed to trial ultimately resolved by guilty plea and at what stage of the process that guilty plea was entered.
In 2010-11, 81.5% of cases in the Victorian County Court and 59% in the Supreme Court resolved by guilty plea, thus it is important to consider what is happening between the committal and the plea being entered to help inform that decision, and how a transparent and effective pre-trial process could assist in bringing that decision forward.
Further reform of the committal process is essential. While abolition is unlikely to be the answer, there is certainly a compromise that can be made to avoid wasting what are vastly becoming precious court resources, in a system that is built on a framework of justice delayed is justice denied.