“Causing significant trauma” to victims, contributing to an “excessive length of time” in securing prosecutions and providing opportunities for “fishing exercises” by defence lawyers are some of the charges laid against Victoria’s system of committal proceedings in the review currently being undertaken by the Victorian Law Reform Commission at the behest of the state government.

The Criminal Bar Association represents barristers who both prosecute and defend criminal prosecutions. The collective view of our members is that committals are essential to a fair trial of serious charges. This is not because of lawyerly self-interest – in fact without committals, more jury trials would be heard, and they would be longer. We believe, and the Victorian Law Reform Commission acknowledges, that it is crucial to ensuring a fair trial that there are some forms of pre-trial proceedings.

We think it’s important in the review of the committal process that the public understands the role of committal proceedings in the justice system, and their importance in vetting the prosecution’s case to avoid lengthy jury trials that often would not lead to convictions.

A fair and efficient trial is not only essential for all accused, but also reduces delay and inconvenience for complainants, other witnesses and juries. Experience shows that late disclosure of important evidence by the police is a major cause of delay. A key purpose of committals is to ensure proper disclosure.

Tackling delay in criminal prosecutions and trials is an ongoing objective of all involved in the justice system. Rather than causing delay, committals in fact reduce it. Without committals, there will be an increase in the number of jury trials, as the prosecution case is not disclosed and cannot be tested until trial by jury. 

Committals allow independent scrutiny of the evidence, separate from the police investigation, before an accused faces trial. This key benefit protects the right of an accused to receive a fair trial. Committals frequently resolve factual disputes between the prosecution and defence and allow cases to resolve appropriately and on an accurate factual basis before a trial date is allocated.

A magistrate may only permit committal questioning that is relevant and justified.  No witnesses can be called to give evidence unless a magistrate considers it necessary. However, proper scrutiny of the prosecution case and ensuring full disclosure are only fair. The entire procedure is monitored by a magistrate. Magistrates always consider the vulnerability of witnesses before determining whether cross-examination is justified.

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There are processes available to minimise or avoid trauma to victims and vulnerable witnesses. This includes the provision of expert support, giving evidence from a remote facility and closed courts. Questioning of witnesses is controlled by the court – bullying and intimidation are not permitted.

One primary measure that is likely to reduce trauma for victims, and indeed all witnesses, is to ensure they are spoken with in advance, to have explained to them the nature of the proceedings and ensure this is understood, and given the opportunity of speaking with the prosecutors after giving evidence. 

There is always room for improvement, and the Criminal Bar Association will continue to support reforms, including in sexual offence cases. Long experience in the criminal courts shows that committals benefit the community. 

Experience shows that committals:

• enhance the efficiency of the criminal justice system by reducing the length of jury trials
• facilitate efficient use of court time
• ensure the fair trial rights of accused persons
• contribute to early resolution of cases
• dispose of cases with insufficient evidence to support a conviction, and
• improve early disclosure of the police case.

Daniel Gurvich QC is the chair of the Criminal Bar Association of Victoria.