Committal Proceedings ACT

Traditionally, committal hearings in the ACT Magistrates Court have meant to serve as a filter or barrier to prevent charges from being transferred to the ACT Supreme Court that do not have sufficient prospects of success. Over time, and in part as a reflection of perceived concerns that committal hearings could traumatise complainants or witnesses on an unnecessary additional occasion beyond the trial itself, the rules for holding committal hearings have become very restrictive for defendants. The result is that most matters result in committal hearings being waiver altogether.

The process for committal hearings or proceedings is set out in Part 3.5 of the Magistrates Court Act 1930 (ACT) (“the Magistrates Court Act”).

If a defendant asks the court to list the matters in the ACT Magistrates Court for a committal hearing, the court will set a timetable directing the prosecutor to disclose on the defendant a copy of the brief of evidence which includes a copy of each written statement and exhibit and written notice affording an opportunity for a defendant to inspect any other material not directly disclosed on a defendant or their lawyer.

Pursuant to section 90 of the Magistrates Court Act the brief of evidence must be disclosed on the defendant in accordance with a timetable set by court or at least more than 28 days before the listed committal hearing. Similarly, the prosecutor will also be directed to file a copy of the brief of evidence with the ACT Magistrates Court either in accordance with the timetable set by court or no more than 28 days before the committal hearing.

As part of the brief of evidence, any statement that complies with the requirements of section 90AA of the Magistrates Court Act can be admitted as the complete evidence of that witness at the committal hearing, in place of that witness having to give any oral evidence (as they would, for example, at a trial in the ACT Supreme Court). In order to be admitted at the committal hearing the statement must contain the following endorsement by the person making the statement:

‘This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.’

The court can decide that parts of a statement are inadmissible according to the ordinary rules of evidence and must strike through those relevant sections of a statement out accordingly.

Section 90AB prohibits a complainant in a sexual offence being cross-examined at a committal hearing under any circumstances. Any other witness in any other criminal proceeding can only be cross-examined if either the prosecutor or defendant applies to the court for leave to cross-examine that witness the party has:

1. Identified an issue to which the proposed questioning relates; and
2. Provided a reason why the evidence of the witness is relevant to the issue; and

• Explained why the evidence disclosed by the prosecution does not address the issue; and

1. Identified to the court the purpose and general nature of the questions to be put to the witness to address the issue.

In addition to the above, under s90AB(2)(b) the court must also be satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial. The above criteria and final overarching interests of justice test can often be a high bar which makes the oral examination of witnesses beyond their written statements relatively rare.

A defendant is also permitted to tender evidence as part of their case at a committal hearing, although anything adduced at this stage that might be detrimental to a defendant can be raised by the prosecution at a later trial if it reaches this stage.

At the committal hearing, the magistrate has regard to all relevant material tendered by the prosecutor in the brief of evidence, including statements and exhibits, and any oral evidence given by witnesses if leave if granted. The magistrate must commit the charges to the ACT Supreme Court for trial unless satisfied that there is no reasonable prospect that the person would be found guilty of an indictable offence. This is a low bar for the prosecution to overcome and in most cases, charges are committed for trial after a committal hearing. Even if this is the likely outcome, there can be some benefit for a defendant in testing evidence at a committal hearing stage. It may, for example, support representations being sent to the ACT DPP in having charges discontinued, or acceptance of a plea bargain, or at least in narrowing issues for trial.

Given the low bar for committal of charges, limitations on which witnesses can be examined, and risks associated with a defendant having to show their hand in identifying the questions and issues to be raised at a committal hearing, many indictable and strictly indictable charges avoid the committal hearing process by waiving the hearing altogether.

Under s88B of the Magistrates Court Act 1930 (ACT) if the defendant applies for a committal waiver and the prosecutor consents, which they almost always do, all indictable and strictly indictable charges can be committed to the ACT Supreme Court with a quick administrative step that bypasses a committal hearing and any need for a magistrate to satisfy themselves of any step relating to the evidence.

Waiving committal has a number of benefits including reducing costs for all parties and the court, not forcing a defendant to make any submissions about their case strategy, and giving the parties the fastest pathway to a later trial.

When the matter is committed for trial the only other procedural step taken by the Magistrate is to inform the defendant notice about the rules that apply to any defendant seeking to give alibi evidence at trial. That is, under section 288 of the Crimes Act 1900 (ACT) any defendant who wishes to rely on alibi evidence (to say that they did not commit the offence because they were not in the location alleged at the time of the alleged offence) must file an alibi notice within 14 days of being committed to the ACT Supreme Court.

After committing the matters for trial to the ACT Supreme Court the magistrate will list the matter for first Directions in the ACT Supreme Court before a Registrar on a Wednesday morning at 9:00am.

After all indictable and strictly indictable charges have been committed from the ACT Magistrates Court to the ACT Supreme Court, the court must also transfer to the ACT Supreme Corut any related or back up offences under sections 90B and 88B(2) of the Magistrates Court Act 1930 (ACT). These are offences which are strictly summary and cannot ordinarily be committed to the ACT Supreme Court for trial before a jury or judge alone with other indictable or strictly indictable offences.

If transferred a judge can then deal with the related or back up offences after the trial of the indictable offences is finalised. The judge can take account of the similar evidence heard at trial, and of course the jury verdicts, in subsequently deciding whether or not the accused is guilty or not guilty of the related of back up offences.

A Good Behaviour Order (GBO) represents an undertaking (promise), signed by an offender, not to commit a further offence in set period, as an alternative to being sentenced to a more serious penalty such as imprisonment. A GBO can also set additional conditions beyond this, such as restrictions about not driving a motor vehicle (which is separate to a licence disqualification order), making a payment to charity or completing certain types of treatment

A GBO can include a condition that an offender accept the supervision of ACT Corrective Services and follow their reasonable directions to attend to certain tasks. It can also include a condition that an offender give security for an amount (such as $1,000.00), a rehabilitation condition, a probation treatment or anything else the court considers appropriate (see s13 of the Sentencing Act).

Sentences of imprisonment can be in the form of a fully suspended sentence, Intensive Corrections Order or by way of a sentence that includes a portion of full-time imprisonment or a non-parole period. If an offender commits an offence, which carries an offence punishable by more than 1 year imprisonment or more, during the term of a Good Behaviour Order that is attached to a suspended sentence of imprisonment, the court must either impose the sentence as full-time imprisonment or resentence the offender. The Court cannot simply decline to take any action in relation to a breach of the GBO in these circumstances.

An Intensive Corrections Order can be understood as a more strict version of a suspended sentence of imprisonment. It has the same effect of technically being a sentence imprisonment  without ordinarily requiring an offender to actually spend any time in a Correctional Centre (in the ACT this is the Alexander Maconochie Centre), but the conditions that have to be complied with to avoid any time in goal are stricter than a suspended sentence. Some less serious breaches of Intensive Corrections Orders, such as testing positive to an illicit drug in a random drug test, can result in the ACT Sentence Administration Board setting penalties for an offender that include short sentences of imprisonment for 3 or 7 days. Significant breaches of an ICO, such as committing a serious offence during the set period of the ICO, can result in the court cancelling an ICO and instead imposing full-time imprisonment.

A custodial sentence will usually involve a total head sentence (for example, 3 years), with a portion of that sentence being by way of full-time imprisonment (or non-parole period) and the balance suspended or with the possibility of parole (for example, 18 months out of the total 3 year head sentence).

The courts also have the power to make a reparation order under section 19 of the Sentencing Act. This may be justified where the DPP has set out with sufficient evidence that a certain justifiable amount of damages has been incurred by a victim as a direct consequence of the offence.

In sentencing an offender at a sentence hearing, a court must also take account of a range of considerations (section 33(1) of the Sentencing Act):

1. the nature and circumstances of the offence;
2. any other offences required or allowed to be taken into account;
3. whether the offences forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character;
4. whether the personal circumstances of any victim of the offence were known to the offender when the offence was committed;
5. any injury, loss or damage resulting from the offence;
6. the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
7. whether the victim was a pregnant woman or a vulnerable person (disability or mental impairment);
8. any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence;
9. the degree of responsibility of the offender for the commission of the offence;
10. a plea of guilty by the offender;
11. any assistance by the defence in the administration of justice;
12. any assistance by the offender to law enforcement authorities;
13. the cultural background, character, antecedents, age and physical or mental condition of the offender;
14. the financial circumstances of the offender;
15. the probably effect that any sentence or order under consideration would have on any o the offender’s family or dependants;
16. whether the offender was affected by alcohol or drugs when the offence was committed and how they consumed the substance;
17. the degree to which the offence was the result of provocation, duress or entrapment;
18. whether the recording of a conviction or the imposition of a another particular type of penalty would be likely to cause particular hardship to the offender;
19. if the sentence follows a jury trial, any recommendation for mercy by a jury;
20. whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;
21. whether the offender was in a position of trust or authority when the offence was committed;
22. the reasons why an offender committed an offence;
23. whether an offender has demonstrated remorse;
24. whether an offender has complied with a Court Alcohol and Drug Assessment Service (CADSA) order;
25. whether an offender has participated in restorative justice;
26. whether an offender has paid an equivalent infringement notice penalty already for the relevant offence.

A defendant is entitled to obtain and seek to tender at sentencing a range of material that may be relied on to provide information about their background and subjective circumstances or addressing other issues that may be mitigating. This material can include a defendant’s apology letter to the court, character references, a treatment letter, medical records or a forensic psychological or psychiatric report.

A prosecutor is entitled to seek to tender a victim impact statement (under Part 4.3 of the Act), prepared by a victim of an offence. This can be read out in court by the victim or prosecutor or simply tendered for the magistrate or judge to read at sentencing. A prosecutor may also be entitled to tender other material such as medical records relating to a victim or photographs of injuries or video footage of the relevant offence.