Area of Law – Practice and Procedure

An Article about Committal proceedings

After reading this go to our Court tour – it will explain to you the process of a committal proceeding and where it fits in the criminal process.

Committal proceedings
A committal decides whether there is sufficient evidence for you to go to the higher court. It is not deciding whether you are guilty of the charges.

The Magistrate at committal is deciding whether a jury properly directed could find you guilty. Not that they would find you guilty or that they will find you guilty.

It is a fairly low threshold test to be committed. The aim is to sort out what is worth proceeding with or as it is sometimes described “sorting the the wheat from the chaff”.

At a committal it is the prosecution who are presenting their evidence. It is very unusual for the defendant or any of their witnesses to get in the witness box or give evidence at this stage.

The Magistrate at the end of the committal can dismiss all the charges against you if they do not believe there is enough evidence that you will be convicted.

At the end of the committal the defendant, you, are asked whether you “plead guilty or not guilty”.

If you plead guilty after a committal your matter will normally go off for a plea of guilty in the County or Supreme Court.

If you have a committal proceeding already booked in and you are reading this article then you should ring us straight away.

The key to committals is to have a strategy worked our with your lawyers and to put in the necessary preparation.

Below are some issues that arise in the law and in committal proceedings:

Questioning simply to establish matters relevant to a plea of guilty
Section 13 (5A) (e) Schedule 5 of Magistrates Court Act – in determining whether cross-examination justified the Court must have regard to the need to ensure that

“(e) matters relevant to a potential plea of guilty are clarified”

Review of committal proceedings by Supreme Court
It should be remembered that the question of what cross-examination is allowed at a committal proceeding is one for the Magistrates’ Court. The learned magistrate will be fully aware of all of the relevant considerations. This court can only intervene when there has been a jurisdictional error or an actual or constructive refusal to exercise jurisdiction at all. It is not sufficient that I might have reached different conclusions from those of the learned magistrate on some or all of the issues.

Henderson v The Magistrates’ Court of Victoria & Anor [2004] VSC 544 (10 December 2004)

Consider putting in new 10a (or 8a as it was) if old one knocked back
The advantage of a fresh application based on the amended notice is that an attempt has been made in respect of each individual witness to identify the issue or issues to which the proposed questioning relates and to provide a reason why the evidence of that witness is relevant to that issue. No doubt further argument could be addressed by way of submission to the court in support of the proposition that cross-examination of that particular witness on that particular issue is justified.

During the course of argument I was assured by Mrs Weinberg that the Office of Public Prosecutions would not raise any objections to a fresh application being made by Mr Henderson at the commencement of the committal proceeding next Monday. There is power in the Magistrates’ Court to hear such an application despite a failure to comply with the time limits (clause 12(5) of Schedule 5).

Henderson v The Magistrates’ Court of Victoria & Anor [2004] VSC 544 (10 December 2004)

No jurisdictional error in unfavourable decision of form 8a (now known as 10a)
A precondition of the existence of any authority to make an order simply means in the current context that the court has no authority to grant leave to cross-examine a witness unless satisfied of the matters set out in clause 13(5)(a) and (b), namely, identification of an issue; relevance of a witness’ evidence to that issue and justification of cross-examination of that witness on that issue. An incorrect decision by the Magistrates’ Court on those matters does not necessarily mean that there has been a jurisdictional error. Like Batt JA, I respectfully rely on what was said by the High Court of Australia in Craig v. South Australia in the passage quoted by His Honour.

Henderson v The Magistrates’ Court of Victoria & Anor [2004] VSC 544 (10 December 2004)

1. What has to be shown is that there was a constructive refusal to exercise jurisdiction. As Howie J put it in McKirdy v McCosker:

“The question for this Court is not whether the Magistrate was wrong in refusing to give the directions sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all …”

Correctness of refusal not question to be determined in considering mandamus
1. the correctness or otherwise of the magistrate’s refusal of the application for leave to cross-examine is not the question to be considered in determining whether or an order in the nature of mandamus is called for. Thus, immediately after the passage from Bott’s case just quoted, Rich, Dixon and McTiernan JJ continued:

“… the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies”.

See also Potter v Tural and Tez v. Longley


Date: 01/09/2009