Wednesday, 30 October 2024

Justice Legislation Amendment (Committals) Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:54): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Committals) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Committals) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

A streamlined committal system will improve criminal justice system efficiencies and strengthen protections for victims and witnesses. To achieve this, the Bill amends the Criminal Procedure Act 2009 (the CPA) to:

• abolish the test for committal for indictable cases

• require a committal case conference be held in most indictable matters unless it is in the interests of justice that a case conference is not held

• define ‘relevant’ for the purposes of disclosing material in the brief of evidence

• allow for early committal in cases before the Supreme Court of Victoria (SCV)

• strengthen the test for granting leave to cross-examine witnesses pre-trial

• prohibit cross-examination at committal stage of any witness in sexual offence, family violence and stalking cases, and

• extend special hearings to child complainants and complainants with a cognitive impairment in family violence cases.

The Bill will also amend the Evidence (Miscellaneous Provisions) Act 1958 to require adult accused persons in custody to appear in a committal hearing via audio-visual link (AVL), unless a party requests and the court directs a physical appearance.

Human Rights Issues

The Charter rights that are relevant to the Bill are the:

• right to equality (section 8)

• right to protection of families and children (section 17)

• rights of children in the criminal process (section 23)

• right to a fair hearing (section 24), and

• rights in criminal proceedings (section 25).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. I do not consider that the Bill limits rights under the Charter.

Right to a fair hearing (section 24) and rights in a criminal proceeding (section 25)

Section 24 of the Charter provides that a person charged with a criminal offence has the right to have the charge decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Section 25(2) of the Charter sets out rights in criminal proceedings including specific minimum guarantees in these proceedings. Relevant to these amendments are the rights to:

• (2)(a) – be informed promptly and in detail of the nature and reasons for the charge

• (2)(b) – have adequate time and facilities to prepare a defence to the charges

• (2)(c) – be tried without unreasonable delay

• (2)(d) – be tried in person, and to defend personally or through legal assistance

• (2)(g) – examine witnesses against the accused, unless otherwise provided for by law

• (2)(h) – obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution

The Bill introduces procedural changes, as discussed below, that will protect the right to a fair hearing for accused persons by promoting the appropriate resolution of cases, narrowing issues in dispute before trial, and improving the disclosure of prosecution case. Together, these changes will work together to promote the rights in section 25(2) while also achieving broader efficiencies in the justice system.

Abolishing the committal test

The Bill will abolish the test for committal and strengthen the existing case management role of the Magistrates’ or Children’s Courts (the lower courts) to preserve core functions of the committal system (amended section 141 of the CPA). I am satisfied that these reforms will maintain the right to a fair hearing for accused persons, as discussed below.

Historically, the main purpose of a committal hearing has been to assess whether there is sufficient evidence for an accused to stand trial, and to discharge an accused if this threshold has not been met. The CPA also provides other purposes of modern committal proceedings, which include ensuring a fair trial by, among other things, enabling the issues in contention to be adequately defined and by ensuring the prosecution case against the accused is adequately disclosed ahead of the trial.

While the committal test is intended to act as a ‘filter’ to provide independent scrutiny of an indictable prosecution, in practice, the threshold for committal is low and discharge rates in the MCV are negligible. Applying the committal test requires time and effort, and magistrates duplicate the work of trial judges. Further, the CPA allows the Director of Public Prosecutions (DPP) to directly indict an accused for trial even if a magistrate discharges the case at committal stage.

By removing the time spent by magistrates assessing the evidence to apply the test for committal, the Bill will allow magistrates to focus on using their existing case management expertise to assist in narrowing the issues in dispute and facilitating earlier resolution of cases where appropriate. This promotes the right to a fair trial by retaining judicial oversight on the progress of the case, ensuring that prosecution and defence continue to be held accountable and the case progresses efficiently so that issues in dispute can be identified at an earlier stage of the proceeding.

Section 25(2)(h) of the Charter is also relevant as the Bill will remove the accused person’s ability to call any witness or make any submission at a committal hearing. The accused will still be able to apply to cross-examine prosecution witnesses at a committal hearing (section 25(2)(g)). I am satisfied that the right to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses for the prosecution remains available to an accused person as this right will be maintained at the trial stage. I am further satisfied that the removal of the ability to give or call evidence at the committal stage does not offend the ‘equality of arms’ principle necessary to ensure a fair hearing for the accused for the same reason. This principle means that each party to a proceeding must have a reasonable opportunity to present their case to the court under conditions that do not place that party at a substantial disadvantage in relation to their opponent. Further, an accused person will be able to test the evidence of the prosecution at committal stage, subject to leave being granted, by cross-examining prosecution witnesses where available and through early and full disclosure of the prosecution case. This will ensure an accused person understands the case against them and can adequately prepare a defence.

Default audiovisual link (AVL) attendance at a committal hearing

The Bill will make AVL the default mode of appearance for committal hearings for adult accused persons in custody, unless the court makes an order directing that the accused appear physically in court (amended section 42JA of the Evidence (Miscellaneous Provisions) Act 1958). In determining whether to make an order in the interests of justice, the court may consider the extent to which the accused may comprehend the proceedings or be able to give instructions to their legal representatives, preserving the accused person’s right to a fair hearing and procedural fairness. This amendment reflects the removal of the test for committal and the accused person’s ability to call witnesses or make submissions at a committal hearing. As a committal hearing will be limited to cross-examination of prosecution witnesses where leave has been granted, it is expected that committal hearings will be shorter and appearing via AVL will be more efficient. This amendment will promote an accused person’s right to be tried without unreasonable delay under section 25(2)(c) of the Charter, as it recognises the constraints in physical transportation of accused persons in custody which could unnecessarily delay the proceeding. By facilitating attendance via AVL, the Bill seeks to improve efficiencies in a manner that does not undermine an accused’s right to be tried in person (section 25(2)(d)).

Strengthened case management processes

The Bill will promote the rights of an accused person in a criminal proceeding by:

• requiring the lower courts to conduct committal case conferences for all cases in the committal stream (with limited exceptions) (amended section 127 of the CPA)

• defining ‘relevant’ for the purposes of disclosing material in the brief of evidence (amended section 110 of the CPA).

The Bill provides that the purpose of a committal case conference will be to facilitate the narrowing or resolution of issues in dispute and the disclosure of any material or information to enable appropriate resolution. This will enhance an accused person’s ability to understand the charges against them at an earlier stage of the proceeding (section 25(2)(a)) and the requirement to provide adequate time to prepare a defence to the charges (section 25(2)(b)). Continued judicial oversight of a committal case conference will maintain effective procedural safeguards and minimise unreasonable delay to the progress of the case, facilitating the accused person’s right to be tried without unreasonable delay (section 25(2)(c)).

Providing that, in the context of disclosure, ‘relevant’ includes material that might reasonably be expected to undermine the case for the prosecution or assist the case for the accused will enhance the likelihood of informants providing an accused person with relevant material, allowing adequate time to prepare a defence to the charges (section 25(2)(b)).

Strengthening cross-examination protections and expanding the prohibition on pre-trial cross examination

Pre-trial cross-examination is important for disclosure and to narrow the issues in dispute in a criminal process, but can require victims and witnesses to give evidence more than once in a proceeding, which can be inefficient and unnecessarily traumatic. There is scope to reduce re-traumatisation and achieve efficiencies in the criminal process while maintaining fair trial rights of an accused person.

The Bill amends the CPA to prohibit committal hearings in all sexual offence, family violence and stalking cases in the MCV, extending the current prohibition in sexual offence cases for a complainant who is a child or has a cognitive impairment (amended section 123 of the CPA). All pre-trial cross-examination of complainants in these cases will be prohibited (i.e. the complainant will only give evidence during a trial). To ensure a fair trial, the defence will be able to make an application for pre-trial cross-examination in the trial court of witnesses other than the complainant. This reform promotes the rights in section 24 and 25(2)(c) of the Charter by reducing delays in cases with vulnerable complainants, increasing efficiency and better utilising resources. I do not consider that the rights in section 24 and 25(2)(g) of the Charter are limited by this amendment as an accused person will still have the same opportunity to cross-examine witnesses before trial if leave is granted as permitted by law. The same procedure and test that apply in a committal hearing will apply to pre-trial cross-examination in the trial court. Additionally, existing safeguards continue to allow cross-examination of witnesses before a trial commences where there is a serious risk of an unfair trial if the cross-examination does not take place, ensuring the right to a fair trial is not limited.

The Bill strengthens the test for granting leave to cross-examine a witness at a committal hearing (amended section 124 of the CPA). This engages section 25(2)(g) of the Charter as applying a higher threshold for leave to cross-examine will narrow the ability to cross-examine witnesses at committal or pre-trial stage. The strengthened test will require an accused person to show that there are substantial reasons why, in the interest of justice, a witness should be cross-examined on an identified issue in dispute. I consider that the test is appropriately targeted to relate to issues in dispute, support disclosure and facilitate resolution. This strikes the right balance in minimising unnecessary trauma for witnesses and the right of the accused under section 25(2)(g) to examine witnesses for the prosecution. Further, the strengthened test does not limit an accused person’s ability to cross-examine witnesses on relevant issues and rather promotes an accused person’s right to be informed promptly and in detail of the nature and reasons for the charge (section 25(2)(a)).

Early committal of cases in the Supreme Court of Victoria

The Bill will move SCV cases involving adult accused persons at an earlier stage to utilise the specialist case management expertise of the trial court (new section 140A of the CPA). This will expedite the trial-readiness of these cases, remove duplication in case management efforts and delays in progressing the case through the committal process. This amendment will ensure that the trial court can deal with pre-trial issues efficiently, promoting the right in section 25(2)(c) for the accused to be tried without unreasonable delays.

Children in the criminal process (section 23) and rights of a child in a criminal proceeding (section 25(3))

Sections 23 and 25(3) of the Charter protect the rights of children in the criminal process. Under section 23(2), a child accused must be brought to trial as quickly as possible. Section 25(3) of the Charter provides that a child charged with a criminal offence has the right to a procedure that takes account of their age and the desirability of promoting the child’s rehabilitation.

As discussed above, the Bill promotes these rights by improving efficiencies in committal proceedings through the introduction of stronger case management procedures, abolishing the test for committal and strengthening the test for granting leave to cross-examine pre-trial. These measures aim to reduce delays, remove inefficiencies and promote early and appropriate resolution of cases.

The Bill will require the early committal of an accused person for trial in the SCV for cases that are ordinarily or routinely determined in the SCV. However, this new process will only apply to cases involving children where a child accused consents to early committal. Otherwise these cases will remain in the Children’s Court until the matter is ready to progress to the SCV for trial or sentence. This promotes the rights in section 23 and 25(3) by providing a tailored procedure for children utilising the specialist expertise of the Children’s Court.

Similarly, the Bill’s reforms to make AVL the default mode of appearance for accused persons in custody appearing in committal hearings will not apply to children, reflecting that it is generally in the best interests of a child accused to appear in-person in court proceedings. Existing safeguards will continue to allow a child accused to opt-in to appear via AVL if it is in the interests of justice.

Protection of children (section 17)

Section 17(2) provides that every child has the right, without discrimination, to such protection as is in their best interests.

The Bill promotes this right by introducing greater protections for child complainants and witnesses in cases involving a sexual offence, family violence or stalking offence subject to a committal proceeding. As outlined above, the Bill moves pre-trial cross-examination of witnesses other than the complainant in all sexual, family violence and stalking offence cases to the trial court (amended sections 123 and 198A of the CPA) ensuring that child witnesses in sexual offence, family violence and stalking cases are afforded greater protections that are available in the trial court.

The Bill extends the availability of special hearings to child complainants and to persons with a cognitive impairment in cases involving a family violence offence (currently available for these complainants in sexual offence proceedings) (amended section 369 of the CPA). Complainants in these cases will have their evidence taken in a special hearing where their oral testimony (examination-in-chief, cross-examination and re-examination) will be audio-visually recorded. This recording will be shown to the jury at the trial, and re-used if there are re-trials, avoiding the need for vulnerable complainants to give evidence more than once. This amendment will further protect the rights of children as child complainants in this cohort will be cross-examined only once over the course of the criminal proceeding, and only if the matter is listed for trial. These recordings may also be used in any subsequent re-trial.

Similar to sexual offence cases, the nature of family violence and stalking cases warrant additional protections for witnesses and complainants. I am satisfied that these special protections are necessary to protect vulnerable children from significant harm, and to minimise unnecessary trauma when giving evidence. I am also satisfied that the greater protections will ensure this cohort of children involved in criminal proceedings are more supported to participate in the criminal justice system.

Right to equality (section 8)

Section 8 provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

The Bill also raises the right to equality before the law, as it provides for protection from cross-examination for victims and witnesses at the committal stage in sexual offence, family violence and stalking matters (amended section 123 of the CPA).

While this leads to different treatment between persons or groups of persons in the criminal process based on the offence type, human rights law recognises that formal equality can lead to unequal outcomes. To achieve substantive equality in how victims and witnesses experience the protection of the law, special measures are required in sexual offence, family violence and stalking cases to minimise unnecessary trauma for vulnerable witnesses. While giving evidence and being cross-examined is confronting and distressing for many witnesses, the Bill recognises that cross-examination can be particularly traumatising for witnesses and vulnerable complainants in these cases. I am satisfied that these reforms will protect vulnerable complainants and witnesses by reducing duplication of cross-examination to minimise unnecessary trauma.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:54): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill will make changes to Victoria’s criminal procedure laws to enhance efficiency, reduce delays and protect victims and witnesses. The Bill will do so by streamlining committal processes while preserving the core functions of the existing committal system to achieve early and appropriate resolution of cases, and by strengthening protections for victims and witnesses.

Replacing the test for committal with improved case management processes

The system of commencing criminal proceedings in a lower court before committing the case to a higher court for trial or sentence emerged before independent police forces and prosecution agencies existed, when magistrates were required to review the evidence to filter out private prosecutions without merit.

The current committals system still requires magistrates to undertake this function by assessing whether the evidence is of sufficient weight to support a conviction for any indictable offence (the ‘committal test’). While this requires significant time and resources in the lower courts, the threshold for committing matters is low and it is rare for a magistrate to decide not to commit an accused. In addition, even if a case is discharged at committal, the Director of Public Prosecution may commence proceedings by way of direct indictment.

The purposes of committal proceedings have evolved over time and are now more focused on achieving resolution of charges where possible, or narrowing the issues in dispute, providing disclosure so the accused understands the prosecution case and ensuring the case is ready for trial if it does not resolve for plea. While all Australian jurisdictions have made changes to their committal procedures in recent decades, including the abolition of the committal test in New South Wales, Tasmania and Western Australia, no single committal system is the same and Victoria’s context presents unique challenges.

Following recommendations made by the Victorian Law Reform Commission, the Bill will abolish the committal test, allowing magistrates to instead focus more on active case management in the committal stage. The case management model in the lower courts will be strengthened to focus on disclosure and identification of issues to expedite resolution at an earlier stage.

In particular, the Bill will require the Magistrates’ and Children’s Courts to conduct a committal case conference in all committal proceedings, subject to limited exceptions. The purpose of this conference will be for parties to engage in resolution discussions and discuss key outstanding issues and disclosure. The committal case conference provides a forum for parties to engage in open discussions under the guidance of a magistrate exercising case management expertise. However, the court may dispense with the requirement to hold a committal case conference if satisfied it is in the interests of justice to do so.

The Bill will also implement a VLRC recommendation to clarify the meaning of ‘relevant’ in the context of disclosure. The new definition will apply in addition to the meaning of this term at common law. It will assist informants to understand that relevant material can include material that is or might reasonably be expected to undermine the prosecution case or assist the case for the accused, and is based on a similar provision in New South Wales. The government will continue to monitor disclosure practices and consider future changes once the effect of the Bill’s reforms becomes clear.

Strengthening cross-examination protections for complainants and other witnesses

The Bill will extend protections for complainants and witnesses before trial. Currently, most complainants and witnesses in indictable proceedings can be cross-examined multiple times, firstly at the committal hearing, then in a higher court during trial and sometimes before trial. For most complainants, giving evidence and being cross-examined can be one of the most difficult parts of the criminal process.

Current provisions provide protections for complainants and witnesses in sexual offence cases where the complainant is a child or a person with a cognitive impairment, including a prohibition on their cross-examination at the committal stage. The Bill will expand the prohibition on cross-examination before trial to include all complainants in sexual offence, family violence and stalking proceedings, recognising the particular challenges for complainants giving evidence in these cases. Witnesses in these cases will still be able to be cross-examined in the trial court before trial in appropriate cases. These reforms will be complemented by further family violence and stalking reforms the government proposes to introduce next year.

The Bill will also strengthen the test for magistrates granting leave for cross-examination at committal, to ensure any cross-examination that does occur is appropriately targeted to facilitate appropriate resolution of matters at an earlier stage. The strengthened test is intended to limit unnecessary cross-examination, including tactical evidence testing. However, it will not be an impossible hurdle for the accused to overcome in appropriate cases where the court is satisfied there are substantial reasons why, in the interests of justice, leave to cross-examine should be granted.

The strengthened test will narrow the scope of issues that can be raised in cross-examination to ensure cross-examination is relevant, and will balance the interests of the accused with the interests of the witnesses, the prosecution, and the public interest in the administration of justice. Together with recent amendments to require magistrates to give reasons for granting cross-examination applications, these reforms will improve consistency in the application of the test for leave to cross-examine at committal stage, reduce duplication and minimise the stress and trauma to victims and witnesses.

The Bill will also extend certain protections at trial stage for complainants who are children or persons with a cognitive impairment in family violence proceedings, in addition to the existing protections for this category of complainants in sexual offence proceedings.

The government will monitor the effectiveness of these proposed new protections and if needed, will consider further reforms to further limit cross-examination and minimise unnecessary trauma to complainants and witnesses.

Early committal of cases to the Supreme Court

The Bill will require that Supreme Court cases are committed at an earlier stage to expedite case management by the trial court. This will legislate fast-track procedures to bypass committal hearings for homicide matters, building on a successful pilot scheme implemented by the Supreme Court which has resulted in earlier resolution of cases.

Mandatory early committal of these cases will only apply where the accused is an adult, in recognition of the specialist jurisdiction of the Children’s Court. However, as is the case currently, a child accused will be able to consent to early committal to the Supreme Court. For joint trials involving a co-accused who is not charged with a Supreme Court matter, early committal will only occur with the consent of all accused persons in the case.

These reforms will reduce duplication of case management efforts, allow the Court to apply its expertise in determining pre-trial issues earlier and reduce delay by avoiding cases having to ‘double queue’ for both committal hearing dates in the Magistrates’ Court and trial or plea listings in the Supreme Court.

Improvements to the committal system will allow for further justice system efficiencies

As the reforms in this Bill will make committal hearings shorter in duration and more procedural in nature, there will be less need for accused persons to appear physically in the courtroom at committal hearings. This Bill will change the default appearance at committal hearings for accused adults in custody from in person to an audiovisual link from their prison location. This will lower the costs of transport to and from court and staffing court cells, minimise disruption to prison operations and placements for accused persons, minimise court delays due to accused persons not arriving in court as scheduled, and reduce security risks associated with people leaving and re-entering prisons.

In some circumstances there may be a practical difficulty with an audiovisual link appearance, such as where there are co-accused or interpreters or if audiovisual link facilities are not available. A physical in-person appearance may also be in the interests of justice to ensure the accused understands the proceedings. In such cases, the Magistrates’ Court will be able to direct the accused to appear in person at a committal hearing.

Recognising the specialist jurisdiction of the Children’s Court, the default audiovisual appearance at committal will only apply to cases where the accused is an adult.

Allowing investigators and authorised water officers to witness statements in criminal prosecutions

The Bill will amend the description of Australian Securities and Investment Commission (ASIC) staff in Schedule 3 of the CPA, to ensure ASIC investigators can continue to witness statements in a preliminary brief, full brief or hand-up brief following a restructure in ASIC. The Bill will also add authorised water officers appointed under the Water Act 1989 to Schedule 3. This will address inefficiencies currently caused by these officers not being able to witness statements when carrying out their duties.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:55): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks.