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14 Legal Service Bull. 279 (1989)
Committals: An Optional Extra

handle is hein.journals/alterlj14 and id is 279 raw text is: NSW rimnaljusice279 Committals: an optional extra? John Koumarelas New South Wales proposals to abolish committal proceedings are critically analysed. In May 1989, the NSW Attorney- General, John Dowd, released a report 'Discussion Paper on Reforms to the Criminal Justice System'. Developments in committal pro- ceedings since 1980 in NSW, which have called into question their true func- tion within the process of criminal prose- cution, provide a practical context for examining the Report. The year 1980 marks the decision of the High Court case Barton v The Queen (1980) 147 CLR 75. In that case the Bartons sought a stay of proceedings on an ex officio in- dictment, through which the case was brought before a higher court without a valid committal for trial made after a preliminary hearing before a magistrate. The findings of the judges were polarised as to the relevance of the place of committal proceedings in the criminal justice system. Three of the judges felt that: a trial held without antecedent committal pro- ceedings unless justified on strong and power- ful grounds, must necessarily be considered unfair. lp.1001 They went on to identify the impor- tant advantages provided by committal proceedings including knowledge of what the prosecution witnesses say on oath, the opportunity of cross-examin- ing the witnesses, the opportunity of calling evidence in rebuttal and the pos- sibility of the magistrate ordering that the accused person be discharged. If the accused is denied this then there is 'a serious departure from the ordinary course of criminal justice'. This view was not held unanimously, however, with Murphy J laying strong charges against the way committal proceedings were used, so that: The desirability of committal proceedings in modem times is doubtful At least in certain kinds of cases. A trend was developed in NSW in which conspiracy, fraud and various corpo- rate charges become delayed because of committal proceedings which goon for months and years. These arr often interrupted with excursions into the Supreme Court for rulings on points of law or procedure. This tends not only to frustrate prosecutions, but also can result in embarrassment and oppression for defendants. While I do not criticise magis- trates who unfortunately have to preside over them, such committal proceedings have be- come a disgrace to the administration of jus- tice in NSW. [p. 1081 Thus, alongside the forceful senti- ments of fairness and justice, we also have the issues of delay and inefficiency in the way committal proceedings have been considered. This is certainly the way the Attorney-General has ap- proached the problem, relying heavily on the findings 6f previous inquiries, particularly the 1987 Discussion Paper of the NSW Law Reform Commission on Criminal Procedure.' In that Discussion Paper, the com- mission identified some I I fundamental principles which must be adhered to in any criminal juslice system (pp.6-10). These included fairness and justice, effi- ciency, the desirability of expeditious justice, the presumption of innocence and the participation of the accused person. The final principle involved the necessity for 'those who propose re- forms likely to have an adverse effect on foregoing principles (to) carry the bur- den of showing the need for them and the utility and desirability of the new laws or practices they propose'. This last principle is quite important since there is an obvious tension be- tween individual principles militating against their concurrent satisfaction. In this sense the Commission recognised that complaints about unnecessary delay and inefficiency in procedure before trial are legitimate criticism of the criminal justice system in NSW; remedies must keep firmly in mind the goal of main- taining fairness and a high standard in the administration of justice. Before turning to examine the way the Attor- ney-General approached these issues, let us look broadly at the theoretical bases for these tensions, and the under- lying values as may be applied to com- mitta! proceedings. The work of Herbert Packer 2 is par- ticularly useful here in his development of two models which give operational content to the complex of values under- lying the criminal justice system. Packer characterises the criminal process as a struggle from start to finish, involving 'all the complexes of activity that oper- ate to bring the substantive law of crime to bear (or keep it from coming to bear), on persons who are suspected of having committed crimes'. He proceeds to re- duce the tensions we recognised above into two analytical models, representing separate value systems that compete for Vol. 14, No. 6, December 9 1989 John Koumarelas is a graduate law student at UNSW. • I I NSW criminal justice 279J

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