Criminal Law – Making the Most of a Committal Hearing

I f a person is denied committal proceedings, “the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross-examining them; (3) the opportunity of calling evidence in rebuttal; and (4) the possibility that the Magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial …”. (See: Barton v The Queen (1980) 147 C.L.R. 75 at p.99)

Whilst all of the above is undoubtedly correct, it does not follow that in every case oral evidence ought be called at committal nor witnesses cross-examined.

However, it is at committal stage that careful advice must be given to defendants to enable them to understand the options they have as to the future progress of their case and the consequences of the option taken.

This is so because optimum prospects of success at trial usually depend on testing evidence at committal, but equally, the best chance of securing the most favourable sentence for a defendant often involves the deliberate avoidance of oral evidence at committal.

Whether You Should Require Oral Evidence At All?

The answer to this depends upon the case you are dealing with.

If it seems likely that the matter will ultimately result in a plea of guilty in a superior Court, it may well be better to have a full hand-up committal. In some cases, the saving of every skerrick of mitigation, including saving Crown witnesses from the ordeal of giving evidence and being cross-examined at committal, may be the difference between a custodial and non-custodial sentence. Whatever the case, not putting Crown witnesses through committal proceedings should always be taken into account by a Judge in favour of the defendant when determining sentence.

This is so because a hand-up committal goes hand-in-glove with the later plea of guilty. It may demonstrate, at an early stage of the process, remorse and co-operation, and it also achieves a saving to the State. These are significant mitigating factors when it comes to sentence.

Of course, it is often difficult to assess whether or not the matter will result in a plea of guilty. One does not wish to waste mitigation and thereby fail to achieve the most favourable sentence for a defendant, should he subsequently plead guilty, by unnecessarily conducting contested committal proceedings. On the other hand, one does not wish to miss the opportunity of testing relevant witnesses at committal should the matter be going on to trial.

Notwithstanding strong cases against defendants at committal, at that early stage of the criminal justice process, before the reality of the benefits of maintaining every piece of mitigation really hits home for a defendant, some defendants will not even countenance the possibility of a plea of guilty.

It is, of course, very difficult for defendants to make these decisions. Some defendants, though innocent, may be tempted to plead guilty and therefore have a hand-up committal in an attempt to secure the most favourable sentence. On the other hand, some defendants may have little prospect of succeeding at trial, but, for any number of reasons, they may insist on contesting committal proceedings and marching on to trial.

A lawyer can do no more than in every case explain to the client in detail the pros and cons of a hand-up committal and the pros and cons of a contested committal. It is then for the client to give instructions in relation to the conduct of the committal.

In cases of multiple charges, a defendant may contest at committal certain charges and not others. If, subsequently, those contested charges are defeated and the defendant pleads guilty to the others, no mitigation will be lost.

In some cases, a defendant may contest the severity of the charge. For example, whilst prepared to plead guilty to assault occasioning bodily harm, the defendant contests at committal the circumstances of aggravation alleged. If, subsequently, the circumstances of aggravation are defeated, the defendant will have lost no mitigation upon a plea of guilty to assault occasioning bodily harm.

Further, a defendant may test evidence at committal with a view to establishing the proper factual basis of the offence for sentence purposes. For example, the defendant may be prepared to plead guilty to dangerous driving causing death on the basis of some speed, but deny that he was travelling anywhere near the speed alleged by the pursuing police.

If ultimately the defendant is sentenced on the basis of the less serious circumstances, then, again, of course, the defendant’s mitigation remains intact.

There are two other considerations at committal stage when looking at securing the most favourable sentence for a client.

Firstly, consideration may be given to whether one should by-pass committal proceedings altogether and consent to an ex-officio indictment.

Experience suggests that this course has practical difficulties. Before an ex-officio indictment may be presented, the Crown and defence must be in agreement as to the factual basis for sentence. Logistically, it is often very difficult to achieve this agreement because the Director of Public Prosecution’s office is extremely busy and work must be prioritized. It can happen that it takes longer for a defendant to be sentenced on an ex-officio indictment than if he had proceeded through a hand-up committal.

Experience also suggests that there is not a significant advantage, if any, for the defendant at sentence in proceeding by way of an ex-officio indictment. Consenting to an ex-officio indictment is a clear indication of an early plea of guilty. But, so too is consenting to a hand-up committal followed by having the sentencing Court informed of the plea of guilty on presentation of the indictment.

Secondly, consideration may be given to pleading guilty at the committal proceedings. In my opinion, this course is open to problems. For example, once the defendant is recorded as pleading guilty to the charge it may be difficult to achieve concessions from the Crown as to the factual basis for the sentence. Or, as months pass between committal and presentation of the indictment, a defendant may change his mind as to the plea, prompted by any number of things.

In my view the safer course at committal is to advise the defendant to not enter any plea. Then, upon confirming the intention to plead guilty once the indictment has been presented, the defendant attracts the benefits resulting from an early intimation of a plea of guilty.

There is no doubt that the best chance of securing the most favourable sentence for a client involves careful advice and decision-making at the committal stage.

If it seems likely that the matter is to proceed to trial, the testing of evidence at committal is usually essential to achieving optimum prospects of success at trial.

I say “usually” because there are exceptions to requiring and testing oral evidence at committal, even when intending to go on to trial.

In some matters, for example importation of drugs, the case may depend on incontrovertible circumstances including video and telephone surveillance proving the importation of the package by the defendant. Subject to considerations of testing the validity of warrants, there may be nothing in the Crown case to contest. Rather, the guilt or otherwise of the defendant may depend upon his explanation at trial as to what the telephone conversations really meant and why the package he imported contained drugs. The explanation that he thought the package contained diamonds and not drugs has been done before both with and without success.

Again, in some cases all witnesses for the Crown may be friendly with and sympathetic to the defendant. The defence may take signed proofs of evidence from such witnesses, clarifying and qualifying their Crown statements without the need for committal proceedings. This process has the obvious advantage that the prosecution may not know about the clarifications and qualifications which these witnesses would undoubtedly give at trial.

There are also cases in which a defendant contests the charge but on the face of the police statements there is a hiatus in proof of one of the elements of the offence. If one embarks upon oral evidence, the relevant missing evidence may tumble out. The prosecutor, upon looking more closely at the brief if it is a contested matter, may take the opportunity to augment the evidence in the statements and fill the evidentiary gap. It therefore becomes tempting to have a hand-up committal and then argue on the face of the statements that the charge is not made out and have the defendant discharged at committal. However, the victory may be short-lived. The Director of Public Prosecutions may present an ex officio indictment, having secured the missing evidence. The defendant has then lost the opportunity of testing all of the relevant evidence at committal. If it is demonstrated that a defendant would suffer unfairness in not cross-examining relevant witnesses before trial, a judge would permit cross-examination on a voir dire. However, leaving aside consideration of any Crown evidence obtained after committal, it may not be easy to demonstrate unfairness in circumstances in which the defence made a tactical decision to avoid cross-examining any witness at committal.

The benefits for the defence of requiring oral evidence at committal are substantial:

(a) The defence gets to know precisely the case against the defendant. The witnesses are made to articulate in detail what they claim to have seen and heard etc. and to detail the circumstances in which they say everything occurred. Any shortcomings in what they can say about the matter become apparent. There is far greater clarity to the case than that which is described in police statements.

(b) The defence gets to see the witnesses and learn how they will perform before a jury. One learns whether a witness is likely to be flexible or likely to give no concessions to any suggestion made by the defence. This assists in determining how to cross-examine each witness before the jury.

(c) The defence learns what questions to ask at trial, and, importantly, what questions not to ask at trial. Getting a damaging response to a non-essential question from a witness in cross-examination at committal is generally not harmful to a defendant. The defence knows not to ask that question before the jury. On the other hand, if a Crown witness responds to questions in a way favourable to the defendant, one can ask those questions with safety before the jury. If the witness gives an inconsistent answer before the jury, the person’s answer at committal may be proved.

There are disadvantages for the defence in requiring oral evidence at committal:

(a) The Crown witnesses get something of a dress rehearsal before trial. It is true that some witnesses may suffer a rough cross-examination at committal and therefore be fearful of cross-examination at trial, resulting in their being less dogmatic before the jury. However, often witnesses draw strength from having survived the committal proceedings and are better prepared for cross-examination at trial. Some Crown witnesses may then present better before the jury than they did at committal.

(b) There is the potential that cross-examination at committal may inadvertently enliven a line of inquiry by the prosecution, disadvantageous to the defence and previously unknown to the prosecution.

Notwithstanding disadvantages or potential disadvantages, generally speaking, defendants who are going on to trial should undoubtedly require oral evidence at committal.

The Nature and Scope of Questioning

Questioning is usually quite unconfined (but relevant) and persistent (that does not mean repetitive) since the purpose is to know precisely what a witness will and will not say about the case. However, as referred to above, care must be taken with the questioning not to provoke a valuable line of inquiry for the prosecution. For example, in an assault case, wide cross-examination of a witness to the alleged assault may cause the witness to mention for the first time that the witness saw the defendant involved in an earlier altercation with a person other than the complainant. Or, the witness may mention for the first time that another person, previously unknown to police, also witnessed the alleged assault. The prosecution would no doubt be interested in further proofing the witness as to the defendant’s aggressive demeanour and behaviour during the day prior to the alleged assault and in proofing the other potential witness to the alleged assault.

The defence is not obliged nor expected to, and, in my view, usually should not, put the defence case or any part of it, at committal. No doubt there will be circumstances which justify exception to the rule, but they would be rare. Generally speaking, there is not only no benefit to a defendant, but there is potential damage, in broadcasting at an early stage to the prosecution and the Crown witnesses the defence case or that which the defendant says about certain parts of the Crown evidence. For a start, it gives the prosecution the opportunity to gather further evidence to rebut propositions put at committal. It also alerts the witness to what will be suggested at trial and thereby enables the witness to give a more considered response before the jury.

It is also important to remember that the conduct of committal proceedings can be revisited by the prosecution at trial. If the defence puts a proposition to a witness at committal and a different proposition is put to the witness at trial, the apparent inconsistency in instructions by the defendant to his lawyers can be explored in cross-examination of the defendant at trial.

In circumstances in which the defence believes that it has very good prospects of defeating the charge, permanently, at committal, exposing the defence case may be warranted. For example, having cross-examined a police officer to the point where he asserts without any doubt that the conversation between him and the defendant is the inculpatory conversation which he swears it to be, the playing of an audio tape of that conversation revealing nothing but exculpatory statements by the defendant, could be well justified. It must be remembered that the assessment of the credibility/reliability of a witness called at committal is “a matter which has relevance in determining whether evidence there adduced is sufficient to put an accused person on trial before a jury. One object of testing the evidence of a witness upon committal proceedings is to test the strength of the case brought against the defendant to see if it justifies putting him on trial”. (See: Purcell v Venardos (No. 2) (1997) 1 Qd.R. 317 at p.322)

Questioning of witnesses as to any criminal history and as to matters of credit unrelated to the circumstances of the offence is often productive. Whilst the Crown is obliged to provide criminal histories of witnesses if requested, most witnesses are unaware of this. Sometimes a witness is silly enough to deny any criminal history, or, minimise it. Of course, lawyers must be aware of and comply with Section 15A of the Evidence Act when questioning as to a person’s criminal history. Again, one must be aware of Section 15 of the Evidence Act. If the defence attacks the character of a Crown witness at trial and the defendant gives evidence at trial, the prosecution may seek leave to cross-examine the defendant as to his criminal history.

In some cases it is preferable to have relevant witnesses give full evidence at committal, rather than allow the police statements to be handed up as the evidence in chief. If witnesses are not retelling what they actually saw or heard, but advancing a fabricated or partially fabricated version of events, inconsistencies, of substance, should emerge during the criminal process. By the time of cross-examination at trial, the defence advocate will be armed with the police statement of the witness, his evidence in chief at committal, his cross-examination at committal and his evidence in chief at trial. Any inconsistencies can then be demonstrated in cross-examination before the jury.

Conclusion

Committal proceedings are held for the benefit of the defendant. Such proceedings should never be regarded by lawyers as just an easy day in Court. Properly conducted, they are invaluable to the defence. For the defence, a trial starts with the committal proceedings.

Terry Martin SC

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