Tips and Techniques for Committal Proceedings Preparation

Part 2 Committal Essentials Series COMMITTALS: TIPS AND TECHNIQUES JUSTIN HANNEBERY KC Barrister William Crockett Chambers DEANNA CARUSO Barrister Brian Bourke Chambers BRYONY SEIGNIOR Barrister Koiki Mabo Chambers October 2024 Liability limited by an approved scheme under Professional Standards Legislation.

Overview Effective preparation strategies Cross-examination The process at committal The committal test Discharge applications Other matters to be aware of Committal for trial and subsequent events

Remember: the purpose of committal proceedings Committal proceedings are a species of pre-trial procedure Judicial check on the executive arm of government The main function of committal proceedings, is to determine whether the evidence is of sufficient weight to support a conviction (s 141) Purposes are broader (s 97 CPA), and include to: Determine whether summary jurisdiction is appropriate Determine whether there is evidence of a sufficient weight to support a conviction Determine whether resolution is possible Ensure a fair trial, if the matter proceeds to trial (for example by enabling: sufficient disclosure, the accused to be aware of the evidence against them, or the issues in contention to be adequately defined)

Effective preparation strategies

Step 1: Analyse the brief Read the brief and note down your immediate thoughts. Put aside the police summary, or at least read it last. Read the evidence. Take the brief apart. Put in an order you can understand. Create a chronology or multiple chronologies (for example, one of the alleged offending, and one of the police investigation) Make a list of documents you have, and a list of documents you are missing, so you can request them as soon as possible Once you have read and organised the brief, you can start to develop your case theory

Tips for developing a case theory Case theory: a thesis about what happened, or what can or cannot be proved For example: Legal argument even if facts as alleged, the offence would not be made out Defence is open self-defence, duress, extraordinary emergency Put forward an alternative factual theory to cast doubt (a RAT rival alternative theory) To develop a theory: Identify the elements of the offence, make sure you understand them well Review all the evidence and consider how each element might be proved Consider your closing argument Useful resources: Advocacy manual, by the Hon. George Hample AM QC, the Hon Justice Ann Ainslie-Wallace, her Honour Judge Brimer, Randall Kune Proof: how to analyse evidence in preparation for Trial, by his Honour Andrew Palmer

Step 2: Take instructions Take instructions early, but only after reading and analysing the hand up brief Your case theory must be consistent with your instructions You aren t asking the client to tell you what happened start by seeking instructions around the facts or other matters ie: What is the relationship between witnesses? What happened when the warrant was executed? Did anyone else have access to your phone? Whether it would be helpful to request complete records? Do any of the witnesses have conditions capable of effecting their reliability? Only take instructions on the substance of the allegations if necessary, once you have a full appreciation of the case against your client

Step 3: Make sure you have all materials you need Request further disclosure Issue a subpoena if required (common examples are for school records, hospital records, Victoria Police records) Be aware that under the Evidence (Miscellaneous Provisions) Act 1958, leave must be granted in relation to confidential communications (section 32C Applications)

Step 4: Committal strategy Do you need to cross-examine witnesses at committal? Do you expect the matter will be going to Trial? If so, will a committal advance the theory for Trial? If not, do you think you can negotiate a better resolution through the committal process? What is your case theory? Without knowing the answer to these questions it is not possible to know which witnesses should be sought to be cross-examined, and which should not be The Committal should be run consistently with any reasonably open defence See part 1 for the test for leave, and for tips as to how to complete the Form 32. Remember certain witnesses cannot be cross-examined at committal (s 123)

Cross-examination of witnesses

Cross-examination Advantages Seeing the witnesses give evidence first-hand Uncover details which may lead to further lines of enquiry, or may negate the need to have a Trial at all Better understanding of the limits and extent of the Crown case Matters explored at committal may not need to be pursued at Trial if they lead nowhere The opportunity to lock witnesses into versions which can later be challenged in front of a jury Exploring the extent to which a witness may be consistent with the accused's instructions (but not challenging them yet) Exploring issues relating to the admissibility of evidence Obtaining any concessions which might assist in future resolution discussions Risks Questions asked may expand the crown case by additional allegations arising against the accused in the course of cross-examination.. leading to additional charges The Crown witnesses may be better prepared at Trial after being cross-examined at Committal

Techniques for cross-examination Do not put your instructions to the witness Focus on the transcript Cross-examine on topics One proposition per question Avoid negative propositions (clear/simple questions) Do not put prior inconsistent statements to witnesses

Informant / Police Witnesses An opportunity to cross-examine about the material disclosed May lead to further subpoenas after the committal Ask them to identify what is in their notes Identify anything outstanding (DNA/Prints/E-crime/other accused/witnesses etc) If calling for further material make clear what is being requested

Lay witnesses (non-sex) As much detail as you can get about their prior criminal history if they have one (if it will assist your case) Ask about draft statements If relevant ask about potential collusion/discussions with other witnesses Ask about any assistance by way of notes/AI/other people If ID case explore the ID/photo boards/Facebook ID/searches etc

Lay witnesses (sex) As much detail as you can get about their prior criminal history if they have one (if relevant) Section 32C questions in order to be able to issue future subpoena Complaint evidence any inconsistencies in the versions given Details of the complainant's personal circumstances if relevant to the charge Unreliability issues Complaint to explore if any differences (note 54D) Explore delay in complaint if relevant (note the direction) Ongoing relationship and whether that makes sense (note the direction)

Complaint witnesses (sex) Explore contents of the complaint (if any differences) Timing (explore if fresh in the memory and if exclusion is viable)

Expert witnesses Often you are better off having a private conversation with the expert - explore whether that is right for your case Obtain all notes/foundation documents If you have your own expert, have a pre-conference with your expert and a draft of the report to assist Read the literature that founds the opinion Explore, if relevant, if the expert is in fact an expert (telecommunications current hot topic)

Cross-examining on admissibility issues Pre-trial admissibility issues should be addressed at committal to enable a decision to be made as to whether it s a viable argument The transcript can then be relied upon in voir dire and argument to exclude evidence Eg, lawfulness of arrest, admissibility of record of interview, reliability of an admission, lawfulness of a search etc

Other tips If leave is refused to cross-examine a witness Option 1: once the accused is committed, seek pre-trial cross-examination under s 198B of the CPA in the higher court note the higher test. This is the most common Option 2: seek judicial review in the Supreme Court of Victoria. Beware that typically superior Court s have been unwilling to interfere in committal proceedings If witnesses do not attend Court Section 134: the Court may (a) adjourn (b) issue a summons or (c) continue if satisfied it would not be unfair to the accused to do so, but their statement is inadmissible in the committal proceeding If the witness harms your client's case, get the statement removed from the hand up brief If they help your case, object to the statement being removed, and get on the record that you want a s 198B Application in respect of that witness If you want / need to ask additional questions outside the Form 32 Seek leave in the hearing Should an accused call evidence?

The Committal Test

At committal (where contested) Section 129 states that where leave to cross-examination is granted, the witness must attend The process is then: Prosecution calls the witness, asks the witness their details, to identify their statement, whether there are any changes they wish to make and otherwise whether the statement is true and correct (they cannot go beyond this in EIC s 130(3) although they can re-examine (s 130(7)) Defence is then permitted to cross-examine in accordance with the leave granted at committal mention (s 132) or on a different issue where the Court grants leave (s 132A) During the committal, the Prosecutor will tender the balance of the hand up brief, usually done during the evidence of the Informant or at the conclusion of the Prosecution case (s 139(1)) Defence can object to particular matters being tendered (s 139(2)). This should be raised with Prosecution in advance. Note: if a sexual offence (not for a cognitively impaired or child complainant), then the evidence of the complainant will be taken in a closed court Defence can make a submission that some or all charges be discharged at committal whether or not witnesses are being called

The Committal Test Section 141(4) whether the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged It involves assessing whether a reasonable jury could convict the accused on the evidence available. They are not pre-empting the jury verdict at Trial. It is a low bar. The test requires a Magistrate to take the Prosecution case at its highest: Forsyth v Rodda (1988) 37 A Crim R 50, 68-69 A Magistrate lacks the authority to halt committal proceedings based on claims of abuse of process. The focus is on evaluating the evidence, not deciding whether a trial is warranted. See Grassby v The Queen (1989) 168 CLR 1, 11 (Dawson J) Whether a Trial should proceed, is a decision for the Director of Public Prosecutions. The Trial Court is responsible for ensuring the subsequent Trial is fair.

How is the evidence evaluated? The Magistrate overseeing the committal hearing evaluates the evidence presented in the hand-up brief, taking into account statements, exhibits, recordings, and any oral evidence permitted to be given (s 139) The Magistrate must apply the statutory test impartially, focusing solely on the evidence's strength and disregarding the potential fairness of a subsequent trial. While the Magistrate may assess the credibility of witnesses and the strength of the prosecution's case, they do not act as the jury. Credibility may fall within the scope of sufficient weight : Forsyth v Rodda (1988) 37 A Crim R 197 A Magistrate may rule that evidence is inadmissible (s 139(2))

The end of a committal hearing At the conclusion of a committal hearing, the Magistrate must choose between one of three options (s 144): Discharge the accused of the offence, if there is insufficient evidence to support a conviction Commit the accused for Trial, if there is evidence of sufficient weight to support a conviction Adjourn the committal proceeding to enable the Informant to file a charge sheet for a different indictable offence There are no other options Note, for an indictable offence triable summarily, a summary jurisdiction application can be made or offered (s 30). If successful, the matter can remain in the Magistrates Court for plea or contested hearing

Discharge Applications Can be made at the conclusion of a committal hearing This is an argument that the evidence is not of sufficient weight to support a conviction on some or all charges (s 141(4)(a)) Some tips: Prepare this ahead of the committal Write out your arguments Only make the application on charges warranting it Remember: the test for committal is a low one. Discharge is statistically unlikely. If the accused is discharged on all charges, the proceeding ends in the Magistrates Court The DPP can still file a direct indictment in the County Court or the Supreme Court

If adjourned to enable a new charge sheet to be filed If the Magistrate is of the opinion that the evidence is of sufficient weight to support a conviction for a different indictable offence than the one charged, the committal proceeding must be adjourned to allow the Informant to file a charge-sheet for that offence If the charge-sheet is filed, the accused is then committed for trial for that offence If the Informant does not file a charge sheet within the period of the adjournment, the Magistrates Court must discharge the accused (s 141(5))

If there is sufficient evidence to support a conviction The committal caution will be read, where the accused will be asked whether they plead guilty or not guilty (if in doubt always not guilty) The alibi caution will be read 14 days to provide an alibi The Magistrate must also explain the importance of legal representation and their right to legal aid If unrepresented, the Magistrate must explain additional matters The accused will be committed for Trial either in the County Court (all indictable offences save for murder treason and terrorism), or the Supreme Court (generally only murder, treason and terrorism) The procedure is outlined in s 144 of the Criminal Procedure Act 2009

After committal Following committal, the transcript and the hand up brief combine to form the depositions which must be filed with the higher court (s 146) The accused will be bailed or remanded to a date in the County or Supreme Courts, either for a plea or a directions hearing Not guilty plea: In the County Court, the matter will be listed for an initial directions hearing (a) 28 days post- committal if an adult (b) 14 days post-committal if a child, or (c) nominated date in other cases: see County Court Criminal Division Practice Note In the Supreme Court, the matter will be listed for a post-committal directions hearing, normally within a day or two of the committal hearing Guilty plea: Where an accused is committed for Trial and has entered a plea of guilty at the committal proceeding, the Magistrates' Court will be provided a plea date by the County Court or Supreme Court Registry and the accused will be remanded in custody or bailed to the plea hearing Summary offences that are related offences will be transferred (s 145)

Elections to stand Trial Worth noting that an accused can elect to stand trial and bypass the Committal entirely, see s 143 of the Criminal Procedure Act 2009

What else do I need to be aware of? Section 128 advice If you are going to cross-examine a prosecution witness about uncharged criminal acts, tell the prosecution so that they can be given independent legal advice. This should be done ahead of the commencement of a committal, so that you don t lose time at the committal. Costs Costs can be sought at the conclusion of a committal and should be made immediately after the proceedings conclude, see s 401 of the Criminal Procedure Act 2009 Bail applications The question of bail arises again at Committal (s 144(2)(c)) You need to be prepared to make a bail application Any sureties need to be present at Court (if they aren t there, the accused will remain in custody until the surety attends the court registry with the necessary documentation) Summary jurisdiction applications An application for a matter which has been commenced in the committal stream to be heard and determined summarily (only if indictable offence triable summarily pursuant to s 28). Can be made by the accused, or the Informant, or the Magistrate can offer (but the accused must consent), see s 31 Section 342 Applications Fitness arising during a committal proceeding must be reserved for the Trial Judge (for Commonwealth matters see s 20B Crimes Act 1914 (Cth), for Victorian matters, see s 8 of the Crimes Mental Impairment and Unfitness to be Tried) Act 1997 (Vic))

General tips Know your bench Think through the contingencies Learn from the experience Manage client expectations throughout the process

Questions?