Page 3649 - Week 10 - Tuesday, 26 August 2008
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It should not go unnoticed that these arguments are all drafted from a prosecution perspective. Yes, some defendants will benefit from not having their proceedings drawn out, with additional expenses incurred in unnecessarily complex committal hearings. But nothing stops defence counsel electing to have a paper committal hearing now. Amendments are not needed to achieve this result.
But what happens when the Crown’s case is weak, identification evidence is questionable or the witnesses’ credibility is less than satisfactory? It has traditionally been the case that an innocent person has a very wide discretion to try to use the committal process to get criminal charges thrown out and to walk away a free man or woman without the enormous stress of unjustifiable criminal charges hanging over their head.
It is misleading to claim that committal hearings are a mere administrative process. They are called committal hearings because their purpose is for a court to determine whether or not the defendant should be committed to face a criminal trial. The fact that sometimes defence counsel use the opportunity to harangue witnesses and robustly challenge the prosecution’s case without having to play to the sensitivities of a jury is not a sufficient reason to abandon the process. Alternative solutions to these problems are available and should be explored.
The fundamental purpose of a committal hearing is to test the strength of the Crown’s case. The prosecution must make out a prima facie case. This will obviously be much easier to do at a committal hearing if the witnesses’ statements are not able to be tested under cross-examination.
While I acknowledge the arguments of the Attorney-General that it would be unrealistic to expect that defence counsel will be happy with these amendments, I share some of the concerns raised by various practitioners in the Canberra Times about the disadvantage these amendments will cause for some defendants. The Attorney-General does not really address these concerns. He merely dismisses them out of hand on the basis that they serve the interests of the person making them. The reverse argument is equally fitting. He would say that, would he not?
One disturbing consequence will be the disadvantage suffered by a defendant in not having a more complete understanding of the prosecution’s case before he or she is forced to elect whether to have the charges dealt with summarily or not. The consequence for the defendant of making an uninformed decision can be extremely onerous and result in a higher sentence or higher legal costs. Seeking to help a defendant to make a fully informed election decision is not an inconsequential consideration. It should not be sacrificed to the interests of witness convenience or cost savings for the DPP.
In some sexual offence cases, a compromise of the rule of law is justifiable. The derogation of human rights involved in weakening the effectiveness of the committal proceedings is proportional to the benefits to be achieved by sparing the victim, similar-fact witnesses and children from the trauma of multiple cross-examinations.
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