Giving evidence at committals

26.111 Before an adult charged with an indictable sexual offence can be sent for trial, a committal hearing may be held.[147] Committal hearings or proceedings are a preliminary examination of the evidence by a judicial officer. Where the judicial officer finds there is sufficient evidence to support a conviction, the accused is committed to stand trial in a higher court.

26.112 At the committal stage, the defendant may apply to have witnesses produced for cross-examination. In many cases a committal hearing will be determined on the basis of documentary evidence alone, which is referred to as a ‘paper’ or ‘hand-up’ committal.[148]

26.113 The purposes of committal proceedings include ensuring the defendant knows the case against him or her and that a trial is justified.[149] The process has also come to provide an opportunity for the parties to: test evidence; filter out weak cases; refute evidence; identify early pleas; clarify issues before trial; and refine charges.[150]

26.114 Four key issues for complainants in sexual offence proceedings have been identified as arising from the committal process:

The victim is required to give evidence not once but twice and be subject to cross-examination at both committal and trial, exacerbating the stress of the court proceedings.

Cross-examination of complainants at committal is often more rigorous and intimidating because there is no jury present.

The experience of cross-examination at committal often leads complainants to seek to have the proceedings discontinued.

The final disposition of the proceeding is delayed.[151]

26.115 All state and territory jurisdictions place restrictions on the right to cross-examine witnesses at committal hearings in sexual offence proceedings.[152] These restrictions differ depending on whether the witness is a child, cognitively impaired or an adult complainant.

26.116 For example, in NSW, a complainant in a sexual offence who has a cognitive impairment, was under 16 years at the time of the alleged acts, or is under the age of 18 years at the time of the trial, cannot be directed to attend committal proceedings.[153] In any committal proceedings in which the accused person is charged with a sexual offence, the magistrate may not direct the attendance of an adult victim unless satisfied that there are ‘special reasons’ why the victim should ‘in the interests of justice’ attend to give oral evidence.[154]

26.117 Similarly, in Victoria, leave to cross-examine in a committal hearing for a sexual offence will not be granted where the complainant is a child or person with a cognitive impairment and they made a written or recorded statement which was served in the hand-up brief. Other witnesses, including adult complainants of sexual assault, may only be cross-examined with leave of the court. Before leave may be granted, the defence must identify the issue on which they want the witness to be cross-examined and provide a reason why the evidence of the witness is relevant to that issue. The court must then be satisfied of those matters and that the cross-examination of the witness on that issue is justified having regard to a list of factors.[155] Special mentions are held for this purpose.

26.118 Some states and territories prohibit child complainants in sexual offence proceedings from being required to attend or be cross-examined at committals,[156] while in other states, child witnesses may be cross-examined with the leave of a judicial officer in prescribed circumstances.[157]

26.119 In the Consultation Paper, the Commissions proposed that state and territory legislation should prohibit any complainant in sexual assault proceedings from being required to attend to give evidence at committal proceedings.[158] Alternatively, child complainants should not be required to attend committal proceedings and, for adult complainants, the court should be satisfied that there are special reasons for the complainant to attend.[159]

Submissions and consultations

26.120 Stakeholders generally agreed that children or adult complainants in sexual offence proceedings should not be required to attend, or be cross-examined at, committal hearings.[160]

26.121 However, a complete ban on cross-examination of complainants could, on some occasions, work to the detriment of complainants—where, for example, a guilty plea might result from their testimony.[161] In some cases, the complainant may also wish to give evidence and, by doing so, may be better prepared for the trial.

26.122 NASASV emphasised that steps need to be taken to ensure that ‘the absence of the victim does not jeopardise the strength of any case’ and that ‘paper committals, such as those used in the ACT, achieve the same ends as oral evidence from the victim’.[162] The Law Society of NSW submitted that

Although it is rare for complainants to be called to give evidence in sexual assault committals, defendants who are required to answer charges decades after they are alleged to have occurred, have significant disadvantages in preparing their defence. For this reason, cross examination of a complainant at committal, even if restricted to issues relating to date and time of offences, can assist in preparation. Clarification of lengthy charge periods or details surrounding old offences assists with trial preparation for both the Crown and the defence.[163]

26.123 Some stakeholders considered that there should be some capacity for adult complainants to be required to attend to give evidence at a committal where there are ‘special’ or ‘exceptional’ reasons for evidence to be given in person.[164] It was submitted that such inflexibility is unwarranted, and may produce great unfairness in individual cases.[165]

26.124 On the other hand, there was some concern that, if complainants may be required to give evidence in committals on the basis of ‘special reasons’, the definition of special reasons should be ‘restricted to limited circumstances and be defined in the legislation to prevent being broadened via broad judicial interpretation’. For this reason, Women’s Legal Services NSW believes that the ‘special reasons’ test is not the appropriate threshold test to require complainants to give evidence at committals.[166]

Commissions’ views

26.125 As discussed above, there are restrictions in all states and territories on child complainants in sexual offence proceedings being required to give evidence at committal hearings.[167] Some states and territories prohibit child complainants in sexual offence proceedings from being required to attend or be cross-examined at committals. In the Commissions’ view, the latter position is appropriate and should apply in all jurisdictions.

26.126 Another question is whether further restrictions on giving evidence at committals should apply to adult complainants in sexual offence proceedings. For example, the Magistrates Court Act 1930 (ACT) provides that complainants in sexual offence proceedings must not be required to attend, give evidence or be cross-examined at a committal hearing in relation to the offence.[168] There is no provision for leave to be granted by the court.

26.127 While the Commissions agree that there is generally ‘little or no benefit in requiring that complainants give evidence twice’,[169] prosecutors and others expressed concern about a complete prohibition on adult complainants providing oral evidence at committal hearings. Circumstances will arise in which it is in the interests of justice for a complainant to be required to attend to give evidence at committal.[170]

26.128 It is preferable, therefore, that adult complainants of sexual assault be able to attend, give evidence and be cross-examined in special or prescribed circumstances. There is a range of different approaches that might be adopted, including those in NSW and Victoria.[171]

Recommendation 26–4 State and territory legislation should prohibit:

(a) any child; and

(b) any adult complainant, unless there are special or prescribed reasons,

from being required to attend to give evidence at committal hearings in relation to sexual offences.

[147] That is, unless an ex-officio indictment is presented.

[148] For example, in NSW, committal proceedings for all indictable offences proceed by way of tendering the written statements of adult prosecution witnesses, unless the magistrate directs the witness to attend the committal hearing for the purposes of cross-examination: Criminal Procedure Act 1986 (NSW) s 91.

[149] See, eg, J Willis and D Brereton, The Committal in Australia (1990); Barton v The Queen (1980) 147 CLR 75, 99; Grassby v The Queen (1989) 168 CLR 1, 15.

[150] Department of Justice and Attorney-General (Qld), Review of the Civil and Criminal Justice System in Queensland (2008), 162.

[151] Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005), 120.

[152]Criminal Procedure Act 1986 (NSW) s 91–93; Criminal Procedure Act 2009 (Vic) ss 123–124; Evidence Act 1977 (Qld) ss 21AG, 21AI; Summary Procedure Act 1921 (SA) s 106(3); Magistrates Court Act 1930 (ACT) s 90AB; Justices Act 1928 (NT) s 105AA. Western Australia and Tasmania have effectively abolished committal hearings and committal to the higher court takes place administratively.

[153]Criminal Procedure Act 1986 (NSW) s 91(7A)–(8).

[154] Ibid ss 93, 94.

[155]Criminal Procedure Act 2009 (Vic) ss 123–124.

[156]Criminal Procedure Act 1986 (NSW) s 91(8); Criminal Procedure Act 2009 (Vic) s 123; Magistrates Court Act 1930 (ACT) s 90AB; Justices Act 1928 (NT) s 105AA.

[157]Evidence Act 1977 (Qld) ss 21AG(4), for example, allows cross-examination of a child witness where: the questioning relates to matters that could not reasonably have been anticipated before the committal; and the interests of justice cannot adequately be satisfied by leaving cross-examination to the trial. Summary Procedure Act 1921 (SA) s 106(3) provides that leave to call a child under the age of 12 years for oral examination must not be granted unless the court is satisfied that the interests of justice cannot be adequately served except by doing so.

[158] Consultation Paper, Proposal 17–3. In 1997, the ALRC and Human Rights and Equal Opportunity Commission recommended that child witnesses should not be required to give evidence in person at any committal hearing: Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), 319, Rec 95.

[159] Consultation Paper, Proposal 17–3.

[160] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; Office of the Director of Public Prosecutions (NT), Consultation, Darwin, 27 May 2010; NSW Legal Assistance Forum, Consultation, Sydney, 10 May 2010.

[161] Public Defenders and Prosecutors, Consultation, Sydney, 7 June 2010.

[162] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

[163] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[164] National Legal Aid, Submission FV 232, 15 July 2010; Public Defenders Office NSW, Submission FV 221, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; NSW Legal Assistance Forum, Consultation, Sydney, 10 May 2010; Public Defenders and Prosecutors, Consultation, Sydney, 7 June 2010.

[165] Public Defenders Office NSW, Submission FV 221, 2 July 2010.

[166] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[167] The age of a child for these purposes differs among jurisdictions. See, eg, Criminal Procedure Act 1986 (NSW) s 91(7A)–(8) (under the age of 16 years at the time of the alleged acts, or under the age of 18 years at the time of the trial); Summary Procedure Act 1921 (SA) s 106(3) (child under the age of 12 years).

[168]Magistrates Court Act 1930 (ACT) ss 90AA(8), AB(1). In June 2010, legislation was introduced in the Northern Territory providing that, in sexual offence proceedings, a child or the alleged victim of a sexual offence is not required to attend a committal hearing; and cannot be examined or cross-examined at such a hearing: Justice Legislation Amendment (Committals Reform) Bill 2010 (NT) cl 7, proposed new Justices Act 1928 (NT) s 105L.

[169] Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005), 130.

[170] Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010.

[171]Criminal Procedure Act 1986 (NSW) s 93; Criminal Procedure Act 2009 (Vic) s 124.