in criminal Law & Offences
What is a committal hearing?
A committal hearing is part of the committal stage for indictable matters and it occurs in the Magistrates Court. Indictable matters are matters that can not be finalised in the Magistrates Court and must proceed to a higher court. They can include a significant number of charges, including rape, indecent treatment of children, grooming and grievous bodily harm.
A committal hearing is used to conduct an examination of witnesses with respect to an indictable offence to determine whether a “prima facie” case exists. It involves an analysis of whether there is sufficient evidence to commit the defendant for trial before a judge and jury in the District or Supreme Court.
The committal hearing is considered the first opportunity a person charged with an offence that must proceed upon indictment has to enter a plea to the charge against them. Defendants at committal have the option of entering a plea of guilty and being committed for sentence to the higher court, entering a plea of not guilty and being committed for trial, or entering no plea and being committed for trial.
What is the purpose of a committal hearing?
The Magistrate must decide whether the prosecution has provided evidence which a jury, properly directed, could reach a guilty verdict.
The question is not whether the jury would convict, but instead, could convict. Even if a prosecution case is vague, weak or contradictory, if it is possible that a properly instructed jury could convict the defendant on the basis of the prosecution evidence. In those circumstances the case is then committed to the higher court.
From a defence point of view, a committal hearing is an opportunity for the defence to cross-examine witnesses on issues that will be particularly relevant at a trial. This is a significant tactical decision.
The primary purpose of such an exercise is to test the accuracy and reliability of Crown witnesses to see if there is sufficient evidence to justify committal to the higher court. It also allows defence to explore possible weaknesses in the Crown case and perhaps explore other lines of enquiry prior to trial.
Giving evidence at committal also sees witnesses committed to a particular version of events. The committal proceedings are digitally recorded and transcribed and a copy of the transcript, called the “depositions”, is made available to the defence a few weeks after the committal hearing. If witnesses depart from their earlier versions when giving evidence at trial, their earlier evidence from the committal and the previous statements can be used to challenge them.
Am I automatically entitled to cross-examine witnesses at a committal hearing?
Consent must first be obtained from the prosecution, who can provide, partial, complete or no consent to the cross-examination of witnesses at a committal hearing.
This is involves writing to the prosecution, outlining which witnesses defence is seeking to cross-examine, as well as the scope of questioning. If the prosecution consent to cross-examination, then a committal hearing will proceed, and the identified witnesses will be required to give evidence and be subjected to questioning by defence.
If the prosecution do not consent, the defendant can apply for a directions hearing, in other words, an argument before a Magistrate, to decide whether or not cross-examination should be permitted at the committal hearing.
Our law requires there to be “substantial reasons in the interests of justice” to justify the calling of a witness to give oral testimony. Reasons can include inconsistencies with respect to versions of events provided, where cross-examination is likely to undermine substantially the credit of a significant witness, and where there is a real possibility that the accused will not be committed to trial.
It is important to bear in mind that special rules apply to any child witnesses, particularly for sex and violence matters. In such matters, the prosecution technically can not consent to cross-examination at committal. Instead, submissions need to be made to the Court, and the Court decides whether such cross-examination will be permitted.
How about an example?
A client of ours was charged with assault occasioning bodily harm. It was alleged that the client was party to the assault and theft of an uber driver.
We sought to cross-examine the complainant to resolve significant inconsistencies in the evidence he had provided. These inconsistencies related to differing versions of events provided by the complainant, firstly in relation to his call to first responders, his comments made on body worn camera footage and his statement to the police. It was our view that cross-examination had the potential to substantially undermine the credit of the complainant, to weaken the prosecution case, and could result in the discharge of our client.
The prosecution consented to our proposed cross-examination and the matter was listed for a committal hearing.
At the committal hearing, Mr Bendall appeared instructing counsel. Counsel conducted extensive cross-examination of the complainant in relation to his recollection of the incident, our client’s specific role in the incident and his dealings with police.
After the cross-examination of the complainant, we informed the court that a written no-case submission would then be considered on the basis of significant inconsistencies between the evidence provided by the complainant under cross examination and the evidence he had previously provided to police.
We submitted that it was inherently unlikely that a jury, properly directed, would convict our client of any offence based upon the evidence provide by the complainant at the committal hearing.
After consideration, the prosecution ultimately accepted our submission and discontinued our client’s charge.
This was an exceptional result for our client.
What is the takeaway?
Not every case will result in the withdrawal of charges at a committal hearing, however there can be enormous benefit in cross-examination at this stage.
It is huge tactical call to make a decision to cross-examine witnesses at a committal hearing and each case will present their own pros and cons in deciding whether to cross-examine in the Magistrates Court.
If a defendant is sure that they will be contesting their charges at a trial or think that there are questions that need to be answered in respect of evidence to be given by witnesses, applying to cross-examine at a committal hearing is tactically advantageous.
However, it is important to bear in mind the potential downside to cross-examining at committal. If the defendant decides to plead guilty, or is found guilty in the higher court, the court will take into account the cross-examination that has occurred, and often conclude the defendant has no remorse for the offending. This can result in losing the benefit of a reduction on penalty following conviction.
