Committal Proceedings

575. The Purpose of Committal Proceedings. Committal proceedings are held to determine whether, in the case of more serious criminal offences, there is sufficient, evidence to require the defendant to stand trial. Committal proceedings are generally held before a magistrate, who hears evidence from the prosecution which is recorded and can be used at the trial. After hearing the evidence the magistrate must determine if there is sufficient evidence to justify the defendant being committed for trial. If there is insufficient evidence, the magistrate may discharge the accused person. This does not amount to an acquittal: it is still open for the prosecution to obtain further evidence and bring subsequent committal proceedings, or proceed direct to trial by way of an ex officio indictment.

576. Committal Proceedings and Traditionally Oriented Aborigines. It is not necessary to consider in detail the procedures involved in committal proceedings[425] But it is clear that the nature of committal proceedings, where the accused appears in the court before a magistrate who hears the evidence and then refers the matter to another court, can cause confusion. For many traditionally oriented Aborigines, having to appear in court for any reason at all can be an unsettling and alien experience. Few would be unaware of the reason for the court appearance, but the uncertainty of the outcome and the strangeness of the proceedings, together with the later realisation that the court has not dealt with their case as they assumed was to occur, compounds their confusion. Traditionally oriented Aborigines are familiar with summary justice. Transgressions requiring punishment or disputes between families are usually dealt with quickly. For persons familiar with this experience, the process of a preliminary hearing, with then a wait of some months (perhaps even a year) before the trial, is mystifying and unsatisfactory.[426] In addition to the confusion of the accused in committal proceedings there is the confusion of the witnesses. They query why they should have to return to the court and tell the same story about an event which is now long gone and which, if it led to any dispute within the Aboriginal community, has most likely been resolved. It is a common problem in the more remote parts of Australia for Aboriginal witnesses, and sometimes the accused if on bail, not to reappear at the court at the appointed time. To some extent this may be due to lack of transport and the difficulty of travelling large distances, but it may also reflect a lack of understanding of the need to return to the court.

577. Arguments for Abolition of Committal Proceedings. For reasons such as these, some commentators have recommended that committal proceedings for Aborigines should be abolished. According to Kriewaldt:

There are certain formal steps which the law at present requires to be taken to bring a person accused of crime to trial These formal preliminary steps should be abolished entirely where the accused is an Aborigine The present procedure works well in a fully civilised community, but is quite useless, and to some extent harmful, where aborigines come into the picture.[427]

Circumstances have changed to some extent since Kriewaldt wrote. One of the grounds for his proposal was the fact that Aborigines were invariably unrepresented by counsel. Since the establishment of the Aboriginal legal services the opposite is much more likely to be true, at least in cases involving more serious offences.[428] Furthermore, there is no longer any real equivalent to the old Native Welfare Department which often played a significant role in the investigation of offences by Aborigines. The few submissions to the Commission which have touched on committal proceedings have tended to support their retention, principally because the safeguards they provide are thought to outweigh any disadvantages:

In [relation to] the proposition that the committal hearing in indictable offences should be waived and proceedings commenced at the one hearing by way of ex officio indictment … [I]it is submitted that this is not appropriate and any difficulties which a rise in this area can be overcome by endeavouring to explain the nature of the committal or preliminary hearing to the defendant.[429]

On this view, although some difficulties exist, for traditionally oriented Aborigines in particular, in relation to committal proceedings, these difficulties are not such as to justify abolition.[430] Committal proceedings provide the defence with the opportunity of being better informed of the nature and strength of the prosecution case. They also enable some testing of the evidence. For these reasons, there should be no abolition of committals for traditional Aborigines, while they remain the normal procedure for other accused persons.

578. Other Administrative Problems. However, where administrative and practical problems do arise, especially in remote areas, attempts should be made to overcome them where possible. For example, the jurisdiction of magistrates in remote areas might be expanded to allow the trial locally, with the defendant’s consent, of cases which would otherwise have to be tried on indictment at a distant centre.[431] Alternatively, in appropriate cases a lesser charge, within the magistrate’s jurisdiction, may be preferred, as is the practice in South Australia.[432] A third possibility would be to dispense with committal proceedings by the use of an ex officio indictment. Although this is a device which should in general be sparingly used,[433] in particular cases it may be an appropriate course of action, especially with the consent of the defendant’s counsel. Similarly, the use of hand up briefs or paper committals without a hearing, if available in the particular jurisdiction, may be desirable in particular cases, again with the defendant’s consent.