Tuesday, 26 November 2024

Bills

Justice Legislation Amendment (Committals) Bill 2024

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (13:23): I rise to speak on the Justice Legislation Amendment (Committals) Bill 2024, which has in some senses been a very long time coming. The genesis of this bill to some extent lay in the Victorian Law Reform Commission (VLRC) report on committals, which was tabled in March of 2020. Here we are 4½ years later. The actual terms of reference given to the VLRC were in October 2018, so in effect we are really six years into this journey before we have seen a legislative proposal come before the Parliament.

Committal proceedings have been an important part of Victoria’s criminal justice system for many years. In effect a committal proceeding provides an opportunity for the Magistrates’ Court to consider whether there is sufficient evidence to allow an indictable offence – that is, a serious charge – to go to trial in a higher court, being the County Court or the District Court.

In the words of the VLRC, on page 15 – or actually page xv, because I think they distinguish between the Roman numerals at the start and the Arabic numerals at the end. Perhaps it is easier if I just say paragraph 13 and 14, which say:

13 Currently, magistrates must consider the evidence to determine if it is of sufficient weight to support a conviction for an indictable offence (the test for committal or committal determination).

14 While the rationale for applying a committal test is sound – to provide independent scrutiny of an indictable prosecution – requiring it in all indictable stream matters is unnecessary; therefore the test should be abolished. The lower courts should, however, be empowered to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction.

That is from the executive summary of the VLRC’s report on committals, tabled in March 2020. I will come back to that because this bill before the Parliament enacts some of the VLRC’s reforms but not others. I do not believe that the government has given an adequate explanation to this house or indeed to the people of Victoria as to why only some of the recommendations of the VLRC have been adopted in this bill.

I have consulted widely, as you would expect, in relation to this bill. Perhaps I should just briefly go through what its purposes are. The purpose of the bill is to amend the Criminal Procedure Act 2009 to reform the process for committal proceedings, including by removing the test for committal, extending the prohibition on cross-examination to other proceedings, strengthening the test for granting leave to cross-examine, providing for early committal for trial in the Supreme Court and to make other miscellaneous amendments. That is essentially the main thrust of what this bill seeks to do.

What the government is proposing in this bill instead is that rather than going to the Magistrates’ Court to determine whether a matter has sufficient evidence to warrant it going forward to the County Court for trial, effectively the Magistrates’ Court would purely act in a form of case management. The Magistrates’ Court would hear some evidence. In most cases cross-examination of prosecution witnesses would not be permitted. The Magistrates’ Court would not have to make a decision on whether a matter should proceed to trial. I say this with no disrespect, and I do not think the government means any disrespect, but it would diminish the powers of the Magistrates’ Court because it would be limited to effectively a case management type of role – to prepare a case for trial in the County Court rather than actually making a judicial decision as to whether a matter should proceed to trial.

In relation to Supreme Court matters, and the original jurisdiction of the Supreme Court would be really related to matters such as murder and manslaughter, the government is effectively proposing that those matters would go straight to the Supreme Court and that a judicial registrar of the Supreme Court would undertake the case management aspects of a matter before it was set down for a trial before a Supreme Court judge and jury.

There are very different views in the community as to whether committal proceedings and the current committal test serve a proper purpose or not. I know the Criminal Bar Association of Victoria put out a statement on 30 October 2024, and I know this is a statement with which Victorian Bar also agrees. It refers to the introduction of this bill back in October. It says:

This week, the Victorian Government introduced a Bill into Parliament that is designed to abolish committal hearings. The CBA strongly opposes these reforms and supports the retention of committal hearings and particularly having the ability to cross-examine witnesses.

A committal hearing has traditionally served an important role within the criminal justice system and continues to do so.

The committal test – to determine whether there is evidence of sufficient weight to support a conviction for the offence charged – is a fundamental safeguard in our justice system and ensures that charges where a finding of guilt at trial is highly unlikely or impossible do not proceed to the trial Court. This saves alleged victims, witnesses and accused from unnecessarily undergoing the trial process.

The strength of any prosecution case only becomes apparent once witnesses are required to face cross-examination. It is at that crucial point that deficiencies in the evidence become apparent.

The statement goes on, but in the interests of time I will leave it at that.

The Law Institute of Victoria has also expressed concern. They wrote to me on 8 November 2024 regarding this bill, saying:

The LIV does not support the changes proposed to the committals process. In particular, it is strongly opposed to the proposed removal of the committals test and the proposed change to the purpose of committal proceedings. The LIV submits that the proposed amendments risk undermining the benefits delivered by the current committals process, particularly by significantly undermining the capacity of the process to result in the early resolution of matters pre-trial and by failing to address the real causes of delay (i.e., inadequate disclosure practices, inadequate legal aid funding, and inadequate court resources to enable courts to hear matters sooner). They also risk undermining the fundamental rights of accused persons, relevantly the right to a fair trial, as protected at common law and by section 25 of the Charter of Rights and Responsibilities Act 2006 … The LIV is also concerned about the proposed limitation of the Magistrates Court’s power to dismiss matters pre-trial.

Again, in the interests of brevity I will leave that there at this point.

I should also note that I contacted Liberty Victoria, formerly the Victorian Council for Civil Liberties, and sought their view on the bill, and they wrote to me on 4 November this year noting that:

Liberty Victoria opposes the Justice Legislation Amendment (Committals) Bill 2024 (Vic) … which would, amongst other things, abolish the power of Magistrates to discharge matters at Committal, prohibit committal hearings for certain matters, and make it much more difficult for an accused person to be granted leave to cross-examine witnesses at committal.

Liberty Victoria strongly supports the retention of committal hearings as a fundamental safeguard of our justice system.

Committal hearings have long served as a critically important part of the protections afforded in Victoria to persons accused of serious crimes. The current system holds significant value in ensuring adequate disclosure, promoting the early resolution of cases, minimising the impact on vulnerable witnesses and ultimately easing pressure on the criminal justice system.

This is, I suppose, the conundrum that we face in considering this bill. Legal stakeholders – notably, the Criminal Bar Association, the Victorian Bar and the Law Institute of Victoria – are all very opposed to this bill because they believe, number one, it will not lead to the streamlining or speeding up of criminal trial processes; secondly, they believe it could be unfair to an accused; and thirdly, they believe that it may actually lead to more matters proceeding to trial that would otherwise not proceed to trial where the committals test is in place.

Now, against that, the government and the law reform commission believe that there are many inefficiencies with the current committals system. The government would say that a committals process requires a lot of double handling of evidence, that requiring the Crown to effectively present its case at committal when these matters would all be tested in a trial is an unnecessary step. The government and the VLRC would question, given the ability of the Director of Public Prosecutions to not ignore a failure to commit a matter to trial by a magistrate but override that through a direct indictment or a direct presentment, what the purpose of a committal process is in that circumstance. There are sensible arguments on both sides in relation to these proposed reforms, so it has been quite a process for me to consult, to wade through it all and to try and determine whether the government has got it right or not.

The government seeks to make it less traumatic for complainants in criminal matters by significantly restricting the ability of defendants to cross-examine them at a committals hearing. So the test for examination is going to be significantly hardened and the variety of matters to which the general prohibition on examining witnesses applies will be extended.

There is no question that the government is going to going to make it much, much harder for a defendant, or a defence counsel more likely, to cross-examine a complainant in a committal process.

I should be clear: the government is not proposing the abolition of committals per se. There would still be something called a committal hearing, but it would not lead in the end to a magistrate making a decision applying the committals test. Effectively it would still act as a form of case management and as an opportunity for the Crown to disclose its evidence to the defence. Those restrictions have raised the concerns of many in the legal community because they are not sure that it would be fair to the defendant. This is where these issues can be quite vexed from time to time.

I was reading some material that was provided by Sexual Assault Services Victoria. They are very strongly supportive of this bill. In this piece they were quite critical of a barrister who had expressed concern about this bill, suggesting in effect that concerns about restrictions on cross-examining complainants came from a place of sexism or came from a place of misogyny, suggesting that if you question a complainant, you are implicitly saying that victims should not be believed. I have great respect for SASV, but I disagree with them fundamentally.

In a criminal justice system it is the power of the state against one individual. The power of the entire state against one individual – that is what a criminal justice proceeding is. We cannot go in there with the assumption that every defendant is guilty; in fact the law specifically says they are presumed innocent unless proven guilty. Nor should we go in there with the implication that any complainant is lying, but we cannot also assume that every complainant is telling the truth. That is the purpose of a trial. It is the purpose of a trial to test what is true, and not just to test what is true but to test whether the evidence reaches the bar necessary under criminal law beyond a reasonable doubt to sustain a conviction. Given the very serious consequences that are imposed on people who commit crimes – or should be imposed on people who commit crimes – in this state, I do not accept, I do not agree with the idea that any restriction on examining a complainant or cross-examining a complainant should automatically be supported, because otherwise we are suggesting that complainants cannot be believed. That is not what is about. I think the legitimate concerns that have been raised by a number of organisations and respected legal stakeholders are about trying to ensure fundamental fairness in the system, and that fairness requires that everybody is tested. Those giving evidence on behalf of the Crown must be tested, because otherwise what is the point of a trial? If we just assume that every complainant is truthful and honest in every way, what is the point of a trial? There must be fair testing of the evidence.

This Parliament has put in place changes to laws to make that fairer. We do not want to see complainants being badgered, being bullied, being harassed or having irrelevant matters about their past dragged up to try and discredit them in the eyes of a jury or indeed a committal magistrate. Those changes were welcome, and they are important. It is important that judges apply those laws in courts to protect complainants from being badgered, bullied, harassed and belittled by belligerent counsel. I absolutely support that. This is not about saying complainants do not deserve protection. They absolutely do, but there must also be a fair testing of all evidence, otherwise what is the point of a trial? If we just assume that everybody on one side of an equation can be believed and nobody on the other side can be believed, we can do away with trials entirely. That is not what this system is based on. It is based on testing everyone’s evidence to ascertain the truth and if the evidence reaches the bar required to sustain a conviction. That is what we need to do.

While I have great respect for SASV and understand their support for the bill, I do take issue with them attacking legal figures who have questioned whether further restrictions on cross-examination of complainants can be justified. We need to understand that everyone needs to have their views tested. Finding the truth is ultimately what the trial process is about.

Coming back to the part of the VLRC report that I quoted from before, at paragraph 14 the VLRC did recommend the abolition of the committal test, which this bill seeks to do. But the VLRC did go on to say:

The lower courts should, however, be empowered to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction.

If I can use mixed metaphors here and delve into constitutional law, it suggests to me that what the VLRC is saying in that recommendation is that while the committals test should be abolished, there should effectively be a reserve power. There should effectively be a red lever that a magistrate can pull on application of the defence where a case is clearly doomed to fail. There should remain that reserve power for a magistrate to be able to make that decision, in the words of the VLRC:

… to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction.

I asked the government in a briefing why that aspect of the VLRC’s recommendations were not being supported. I am paraphrasing and I am trying to be fair, but the response really was, ‘Well, that would have simply re-established committals as is.’ I do not think that is what the VLRC was envisaging, and I think it is probably unfair to the VLRC to some extent to suggest that that recommendation would simply lead to a committals test by another name. I think it is concerning, because sometimes there may be times in which the Director of Public Prosecutions (DPP) or the Office of Public Prosecutions would be under considerable pressure – public pressure, political pressure. They have to make decisions independently, but let us not kid ourselves that there is not pressure out there on every independent decision-maker in the justice process. I think the idea that there should not be a ‘break glass in case of emergency’ capacity for a magistrate to discharge a defendant where clearly the evidence that has come through a committal makes it impossible to secure a conviction. I am very concerned the government has not really properly explained why that recommendation has not been put in place.

It is probably as timely as any other time to move a reasoned amendment to this bill. So I move:

That all the words after ‘That’ be omitted and replaced with the words ‘this house refuses to read this bill a second time until the government:

(a) explains why it has rejected the Victorian Law Reform Commission recommendation to empower the Magistrates’ and Children’s courts to discharge the accused on a relevant indictable charge or charges if satisfied that there is no reasonable prospect of conviction; and

(b) commits to reviewing the implementation of the bill to identify and remedy any demonstrable unfairness to defendants that may be occasioned.’

I will take you through the two limbs of that reasoned amendment that I have just moved. The first is very clearly seeking a proper explanation from the government as to why a very clear recommendation of the Victorian Law Reform Commission is not being adopted in this bill. The VLRC made its recommendations about abolishing the committals test in conjunction with the recommendation that a Magistrates’ or Children’s Court still has the power to discharge a defendant if it is satisfied there is no reasonable prospect of conviction. It does seem to me that the government is trying to cherrypick the VLRC’s recommendations here. They are quite happy to take the recommendation to abolish the committals test, but they have turned their back on the equally sound recommendation to provide that emergency power – that reserve power or that ‘break glass’ power, if you want to term it that – to prevent a matter going forward where clearly there is no reasonable prospect of conviction.

When we consider the recent tragic event that took place in Daylesford some time ago when a driver lost control of his car and went into, I think, the beer garden of a hotel and a number of people were tragically killed, that is an example of how the committals process works.

Obviously, the DPP was very concerned by what happened. They believed there were grounds for a trial, but at the committal the evidence came out about the defendant’s medical conditions and the magistrate made a decision that the matter should not be committed to trial because it was clear in the magistrate’s view that the medical condition of the defendant would by definition lead to reasonable doubt in the minds of a properly instructed jury and that could not sustain a conviction. The family and friends of the people who were tragically killed I have no doubt were distraught at what they saw as the fact of justice not having been done, and no doubt there would have been a lot of pressure on the DPP to make sure that the matter went to trial. But that was an example of how a magistrate was able to make a decision that a matter should just not go forward because clearly the evidence was not sufficient or the evidence raised a reasonable doubt which could not sustain a conviction. Under the government’s model now, that would not happen; that matter would have gone to trial. Would a properly instructed jury have still come to the same view as the magistrate? I do not know; you would hope so. But we have had instances in Victoria where properly instructed juries have found people guilty of offences which ultimately the higher court decided 7–0 there was no proper basis for. So juries, God love them, do not always get it right.

Imagine a parallel universe where this reform was already in place. When the Daylesford tragedy occurred it would not have gone to a committal proceeding; it would have gone to a trial, and a lot of witnesses would have had to give evidence, more so perhaps than they would have had to do in the Magistrates’ Court, and that would not have led to any reduction in resources. It would have taken more time, more money and more grief for everybody involved. So that is the sort of example where I think it is harder to justify the reforms. But for every example of that you could point to perhaps 99 examples where parties to a criminal proceeding have gone through additional grief and aggravation and trauma and time and delay for having gone through the committal proceedings.

I say all this because I have to say I normally read these bills, I consult on them, I have the bill briefing and I am pretty clear in my own mind as to the way to go, but with this one I have really been in two minds, and that is to some extent what is reflected in the reasoned amendment which I have moved. I am concerned that the government has broken faith, if you like, with that Victorian Law Reform Commission recommendation, and I think the onus is very much on the government to properly explain to this house why it has done that and perhaps to reconsider whether that is the right way to proceed with this bill. But secondly, I do accept and share some of the concerns of the bar, the criminal bar, and the law institute about the potential for this bill to lead to some unfairness to defendants. Given we do have a situation and a system in which the might of the prosecution and the Crown are arranged against one individual defendant, we must always have a mind for the fairness of the system to that individual, with all the resources of the state stacked against them. That is why I thinks it is important that the government commits to reviewing the implementation of the bill to identify and remedy any demonstrable unfairness to defendants that may be occasioned.

This is a bill which to some extent does mirror reforms which have occurred in other states. I would concede that the sky does not seem to have fallen in in other states where there have been changes to committals there, but I would equally note that in New South Wales there has been a lot of public controversy over recent months involving the New South Wales District Court and judges of the New South Wales District Court – our County Court equivalent – and the New South Wales Director of Public Prosecutions.

There have been judges raising concerns that the DPP has been running trials on certain matters in the New South Wales District Court which the evidence does not support. Judges have publicly expressed or queried whether this was some sort of political or other decision that was informed or whether the policy was properly informed by the interests of justice. I know that the DPP has pushed back very strongly against that and has actually made complaints to the New South Wales Judicial Commission against judges who have expressed those sorts of views and concerns, and I think some of those complaints have been upheld to an extent. I put that on the record not having a dog in the fight, as it were, not knowing who is right and who is wrong, but I do note that the prospect of having less judicial scrutiny of criminal matters in the lower courts could lead to concerns that unmeritorious matters will go to trial. If that happens, obviously there is a great risk of further delay, costing of further resources and causing a lot of trauma to defendants, complainants and witnesses.

This is a bill which, certainly at this point, we will not be opposing on this side of the house. We will not be opposing it, but we have moved the reasoned amendment because we do not think that the government has quite got it right. We do think that the government has an obligation to explain why it has cherrypicked the VLRC’s recommendations in relation to committals, and we do think that the government needs to commit to proper review of the implementation of this bill to ensure that if it does appear that defendants are being subject to demonstrable unfairness as a consequence of these changes, that can be remedied very, very quickly. The interests of justice are something that affect every one of us. We have all got an interest in making sure the system is fair to all. The system must be as fair to defendants as it is to complainants, and that should be the nature of the justice system here.

I am usually fairly confident, having read a bill, done my consultation and done my bill briefing, to say this is the way to go, this is the recommendation. This is one that I have spent quite considerable time on because I am not sure that the government has got it right, but I think that reforming committals can deliver some positives to the justice system. On that basis we are prepared to not oppose the bill at this point, but we do think the government has some questions to answer. Those questions are set out in the two limbs of the reasoned amendment which I have put before the house.

I thank all those organisations which have spent a lot of time in providing me with their views: the Law Institute of Victoria, the Victorian Bar, the Criminal Bar Association, Liberty Victoria and Sexual Assault Services Victoria. This is a very important issue. It could lead to some positives; it could lead to unfairness. The weight is really on the government to make sure that it gets this right, not just in passing the bill but in observing its implementation, and if it has got it wrong, get in there and fix it quickly, because the interests of justice require it.

Sarah CONNOLLY (Laverton) (13:53): It is not often that I hear those opposite talk about fairness in this state, so it is a pleasure to rise to speak on this bill after the member for Malvern’s contribution. I too rise to speak on the Justice Legislation Amendment (Committals) Bill 2024. What we know is that this bill aims to make our court system a lot more efficient by streamlining our committal hearing processes so that cases can be resolved earlier.

Before I make my brief contribution this afternoon, before we go to question time, I will give a big shout-out and also, do I dare say, in the countdown to Christmas, merry Christmas and a happy new year to all of the incredible legal minds working hard to support folks, particularly in Melbourne’s west, when it comes to the criminal justice system. I have to say one of the highlights for me this year was going ahead and being there at the official opening and launch of the new offices in the western suburbs for Westjustice and also for Victoria Legal Aid in the heart of Sunshine. It is very important that those lawyers who are protecting some of our most vulnerable Victorians have a workplace that is fit to work in and one that they very much deserve – really nice digs there in Sunshine, I have to say.

This is another justice bill that I am more than happy to speak on, because it shows just how our government, our Allan Labor government, is committed to making our justice system fairer for all Victorians – something that those on this side of the house take very seriously. What this bill does in particular is it deals with the committal hearing stage. This is usually the first and earliest stage of a criminal proceeding in our court system. It is a really important one, where a judge or usually a magistrate has to weigh in and, importantly, consider whether there is sufficient evidence to warrant a full trial for the offence. This is a really important step in determining which cases come to court. It is also responsible for throwing out poor cases that have little or no evidence to support a conviction.

What we are actually trying to do with this bill is not replace or remove these types of hearings in their entirety but make them easier to manage and, importantly, make them more efficient and streamlined so that cases can progress through our courts in a more timely manner and that cases with poor evidence that are unlikely to be successful are thrown out a whole lot quicker. These changes stem from a 2020 report by the Victorian Law Reform Commission, which made a total of 51 recommendations to reform pre-trial procedures to be more effective. Whilst this bill does not implement all of them at once, these are the changes that we can make now with the existing resources that we do have.

What the bill aims to achieve is replacing the test for committal with a new, modern case management process. Currently, a committal hearing involves a magistrate reviewing the evidence presented to them and considering whether what is being presented is of sufficient weight to support a conviction for an indictable offence. This is the test that, importantly, determines whether there will in fact be a trial, and what the bill does is remove it. This was, importantly, a key recommendation from the Victorian Law Reform Commission, and its removal will allow for magistrates to prioritise case management so that disclosures can be made and the main legal issues that are in dispute can be better identified. It is really important to recognise that this test has been changed and removed over time in other jurisdictions, as the member for Malvern pointed out, including New South Wales, Tasmania and Western Australia. There is actually no time-honoured tradition or legal concept for the court to uphold by modifying or removing this test. In fact the committal hearing actually arose from a time before we had independent police and independent prosecutors, something that is a reality today. I have to say that when I read that, when reading about this bill, I did not quite realise it, and it is something that perhaps from time to time we do take for granted. It is really interesting to be reminded of that.

When we look at the statistics for committal hearings, only about 1 to 2 per cent of cases are discharged at the committal stage, and what this means is that at the moment these hearings are not working as effectively as they could be. What we are seeing is that they are duplicating the process. They are adding time into the resolution of a dispute and causing witnesses and parties additional stress and, sadly, additional trauma associated with the case, not to mention costing courts resources that could be better spent on resolving other cases.

This also reflects the fact that our prosecution system has also evolved since this was first introduced, and today the independent Office of Public Prosecutions have their own systems, importantly, in place for assessing cases that come before them to determine if they believe a case is viable before proceeding to trial with it. The criteria they use is already set out in the directors policy and is readily available online. In other words, the Office of Public Prosecutions are already doing the job that a committal hearing seeks to do, and in extreme cases the Director of Public Prosecutions can even override the decision of a magistrate who determines that a case does not pass the committal test. It is clear that what we have got with the system –

The DEPUTY SPEAKER: Order! The time has come for me to interrupt business for question time. The member will have the call when the matter returns to the house.

Business interrupted under sessional orders.