When a person is charged with an indictable offence that cannot be prosecuted in the summary stream of the Magistrates’ Court, the charge (or charges) will proceed through the indictable stream of the Magistrates’ Court. These kinds of matters are the more serious kinds of criminal matters and can only be resolved in one of the courts above, being the County Court of Victoria or the Supreme Court of Victoria. After at least two administrative hearings (a Filing Hearing and a Committal Mention), most indictable matters have the option of proceeding through a Committal Hearing. We say “most indictable matters” because there are certain matters that either cannot (or rarely) proceed through a Committal Hearing in the Magistrates’ Court, most particularly matters that involve serious allegations of sexual offending against children or individuals with cognitive impairments.
The Process of a Committal Hearing
Where a matter proceeds to a Committal Hearing, the accused can apply to cross-examine witnesses listed in the Brief of Evidence, including any alleged victim or competent adult complainant to an alleged sexual offence. If the application is granted at an earlier Committal Mention, a Committal Hearing will be listed in the Magistrates’ Court before a Magistrate and the witnesses (in relation to whom leave has been granted) will be called to be cross-examined. This is not a trial. Rather, it is a pre-trial hearing that allows the accused to explore the evidence of each witness in advance of trial, in order that they can make forensic decisions about how to run their trial or in relation to whether to negotiate a plea.
Understanding the Purpose and Limitations
It is important that, if you or a loved one are proceeding through a Committal Hearing, you properly understand the purpose of a Committal Hearing, its limitations and what you should realistically expect. In particular, you need to put out of your mind what you may have seen on television and also understand that a Committal Hearing is not run as a “mini-trial” and is not to be used as an opportunity to robustly cross-examine a witness. There is no jury and the power of the Magistrate to resolve or influence the outcome of the matter is very limited.
However, Committal Hearings can be an invaluable opportunity for an accused person to explore the evidence in the Police case and to ensure that witnesses are properly committed to a version of events which then forms their evidence. In each Committal Hearing, a witness is called to the witness box. They are then shown their statement (or statements) and asked whether they wish to change anything or add anything to their statement. If they do, they are invited to make handwritten amendments to their statement and to initial those changes before the statement is tendered as their evidence in chief. This means that the Prosecution does not ask the witness about what they say occurred. Rather, the statement is relied upon. This is not the case at a trial, where the Prosecution asks the witness questions first, followed by cross-examination by the defence lawyers.
At a Committal Hearing, the defence are permitted to cross-examine the witnesses, but the nature and purpose of their cross-examination is very different to cross-examination at trial. It can, however, be equally as valuable to the ultimate result.
Example: Joe and the Blue Car
Let us deal with this by way of an example: Joe is charged with committing an armed robbery with his friend, Bert. The allegation is that Bert entered a 7/11 armed with a knife and held up the shop attendant, who then handed over cash from the register and a bag of cigarettes. Police alleged that Joe was waiting in the car on the street, in his role as getaway driver. Notwithstanding that Joe does not enter the 7/11, he can still be prosecuted with armed robbery in his role as getaway driver. CCTV does not capture clearly the vehicle Joe was alleged to have driven. However, Police rely on an eye witness account of a woman (Gloria) filling up her car at the 7/11, who says that the getaway car was a blue vehicle. Joe’s father is known to drive a navy blue hatchback. At a Committal Hearing, the defence will want as much detail from Gloria about the description of the vehicle. If Gloria gives evidence at the Committal Hearing that the car was a light blue sedan, she will be challenged at trial if her version changes. Defence can also raise identity as a real issue at trial, because the description of the car does not match that of Joe’s father’s car.
Importance of Cross-Examination
As demonstrated in the above example, the opportunity to ask questions of a key witness relied upon by the Prosecution can be invaluable to the ultimate case strategy at trial. Similarly, it may be very important to explore how a witness came to make their statement and approach Police. Defence may have instructions from their client that the alleged victim, or a witness, doesn’t like them and has a motive to lie. These are matters that can be explored openly at the Committal, without the risk of raising them at trial (for the first time) before a jury. If you ask a witness about their motive to lie, without having raised this at the Committal, you don’t know what they are going to say. The witness might make comments that are very negative about the accused and which might be damaging, even fatal to a trial.
It may also be that the Police gave the witness information that they ought not to have known, prior to making their statement, which then affected their evidence. You will want to elicit all evidence about this at Committal, so that you can consider how to cross-examine Police witnesses and, also, whether there are some pre-trial legal arguments that ought be raised about the probity of the evidence.
Developing a Trial Strategy
A Committal Hearing provides a relatively safe environment in which to explore all aspects of a witness’ evidence (even evidence that might be unhelpful to the accused) in order to then develop a trial strategy, which might include arguments that a witness’ evidence should not be permitted to be lead before a jury, or to make a decision in relation to negotiating a plea to a lesser charge or on a particular basis. Whilst the Police and Prosecution can, technically, speak with Prosecution witnesses whenever they like, defence lawyers only get a very small number of opportunities and the Committal hearing is the most important opportunity prior to trial. It is also invaluable for trained defence lawyers to observe the demeanour of a witness. How likeable are they? Do they get aggravated or abusive? These are all important to the ultimate decisions that might be made in relation to the conduct of a trial.
However, most of the time, you won’t see your lawyer attacking the witnesses in the way that you might have seen on television, or can expect to see at trial. This is because it may be entirely counter-productive to the explorative nature of the exercise and may cause the witness to become entirely unhelpful. It may be that your lawyer decides that it is in your best interests to reserve the attack for cross-examination at trial, which is far more theatrical and which will be conducted before a jury that will ultimately decide your guilt. Your defence team may have a particular line of attack which may be very significant, which they don’t want the Prosecution or witness to know about until the witness is called to give evidence before the jury at trial. Any earlier attack will put the Prosecution on notice of the (otherwise secret) defence strategy and might allow the Prosecution to “fix up” their case. This makes the strategic advantage of the defence attack less effective.
Example: Continued
Let’s use the earlier example of Joe and the blue car. Having heard from Gloria that the car was a light blue sedan, she should be asked to confirm that she is certain about what she saw and then the cross-examination should move on. It would be a dangerous move to then tell her “well, the car driven by Joe was a dark navy hatchback” because she may then try to fix her evidence. She may say “well it was all very fast and I was very scared and it was also dark. I could be wrong and I don’t know cars very well”. In this scenario, you are stuck with this evidence at trial which is far less powerful than having a positive account of which she is certain.
Why Committal Hearings Rarely Lead to Discharge
It is important to understand that, notwithstanding how valuable a Committal Hearing can be to the outcome of the matter, it is very unlikely that a Committal Hearing can result in a discharge (a decision by a Magistrate that the prosecution should not continue). This is because Magistrates have very limited powers to discharge an accused at a Committal and, in particular, are unable to discharge a person because of doubts over the credibility, reliability or truthfulness of a witness. These are matters that can only be considered by a jury. Even if a Magistrate thinks that a witness, including an alleged victim / complainant, is untruthful and unreliable, this cannot form part of any discharge. In addition, the Magistrate must consider the Prosecution case “at its highest”. If there is evidence that can be relied upon to establish that the accused committed the crime, however weak and unreliable, the Magistrate must commit the accused for trial.
Turning Committal Hearings Into a Strategic Advantage
However, just because a Magistrate cannot or does not discharge an accused at Committal, that doesn’t mean that an effectively run Committal Hearing cannot cause the Prosecution to reconsider their position. It may be that, once the depositions are served, your defence team can start discussing the nature and strength of the evidence with the Prosecution and seek that they withdraw the charges. The depositions are constituted by the Brief of Evidence and the transcripts of the evidence given at the Committal Hearing, as well as any exhibits tendered (including witness statements) and disclosure items provided by the Police, but which are not relied upon in the Prosecution.
So long as you understand the nature of a Committal Hearing, you can use it to give yourself an incredible strategic advantage as you move forward, either in negotiations or trial or both.
How Galbally Parker Lawyers Can Help
At Galbally Parker Lawyers, we understand that the criminal justice system can be confusing (particularly if this is your first time in it). You may also forget things that you have been told. That’s why we have developed a number of instructional videos to explain certain processes, so that you can go back to them when you need guidance (and don’t want to call your lawyer). We invite you to view our Indictable Crime video in order to familiarise yourself with the various steps and aspects of the Indictable Stream: An Introduction to the Indictable Stream – Galbally Parker.
Otherwise, if you are facing prosecution for a serious indictable matter and facing a Committal Hearing, please feel free to contact our experienced team today in order to arrange an initial client consultation with a representative of our firm.
