Reforming the committal hearing system

By Asher Flynn, Monash University

Significant questions have been raised over the past three decades, most recently by Victorian Attorney General Robert Clark, as to the benefits of the pre-trial system.

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In particular, whether having so many steps on the path to trial is simply contributing to already lengthy court delays.

Not surprisingly, the primary hearing in contention is the committal – a hearing that has been abolished, reviewed and refined in criminal jurisdictions across Australasia, the UK and Canada.

In theory, the committal hearing provides an opportunity to scrutinise the Crown’s case at an early stage, thereby filtering out weak or inappropriate prosecutions, identifying the key issues in contention, and informing an accused person’s pleading decision – that is encouraging them towards pleading guilty.

The benefits of the committal, if adhering to its primary objectives, are many, even from a purely financial perspective, the cost of a guilty plea being entered on or following the first day of a trial was estimated by Pricewaterhouse Coopers in 2008 in Victoria to stand at approximately $507 per hour in the County Court, and $645 per hour in the Supreme Court.

These figures don’t include the Crown’s preparation costs, the accused’s financial costs or the emotional costs arising from a late guilty plea.

Yet, the committal has consistently been identified as a “questionable” pre-trial process – even by those most involved in its use, such as former Victorian Director of Public Prosecutions (DPP) Jeremy Rapke QC.

Indeed across almost every Australian jurisdiction, Law Reform Committees and prominent legal individuals have been tasked with determining whether to abolish or refine the committal hearing, with Tasmania and WA doing away with the process altogether.

In Victoria, where the latest call for committal abolition has surfaced, there have already been reforms to improve its usefulness – Magistrates must now determine whether the evidence is sufficient to support a conviction at trial, rather than simply sufficient to warrant sending an accused to trial; and an accused can no longer reserve entering a plea at the hearing’s conclusion.

Similarly, the defence is now subject to limitations on whether they can cross-examine a witness and the types of questions they can ask– although this has been criticised for reducing the effectiveness of the filtering process, on the basis that the strength of the case cannot be adequately tested. More recently however, it has been suggested that such controls are not sufficiently stringent, and cross-examination remains a key factor contributing to unnecessary delay and duplication of what is ultimately heard at the trial.

The primary argument supporting committal abolition is that it essentially involves running a mini-trial before the “real” trial, which can be detrimental to victims, financially and resource-intensive, used to prolong the process, and all of this, for little gain, given that the majority of cases are committed to trial.

Between 2004 and 2007, on average, 80.4% of cases in Victoria were committed to trial. In the NT, the Law Reform Commission found that in the 2007-08 financial year, only two of 267 accused persons were not committed to trial. Perhaps reflective of this, the Victorian Magistrates’ Court no longer publishes data on the number of people committed to trial, instead keeping one figure detailing those committed to trial and those summarily finalised.

Quite possibly the central flaw in the current committal system, at least in Victoria, is that regardless of the Magistrate’s decision, the DPP has the statutory power to override it, and can elect to discontinue a prosecution that has been committed to trial, or give notice of a trial and proceed to the relevant superior court.

See for example, R v Debs [2007], whereby a trial was held despite the Magistrate’s determination of insufficient evidence, and the accused was ultimately found guilty. Or, before the problems with the Office of Police Integrity investigation came to light, the DPP had already decided not to pursue a prosecution against former Victoria Police Association Secretary, Paul Mullet, despite the Magistrate committing him to trial. As a result, the real power to commit an accused to trial lies with the DPP, which in effect, reduces any motivation or need to run a committal.

In considering reformation of the committal process, it is important that the Victorian Government approach the review in a similar vein to that of Queensland and the NT, who examined the data detailing how many cases committed to trial ultimately resolved by guilty plea and at what stage of the process that guilty plea was entered.

In 2010-11, 81.5% of cases in the Victorian County Court and 59% in the Supreme Court resolved by guilty plea, thus it is important to consider what is happening between the committal and the plea being entered to help inform that decision, and how a transparent and effective pre-trial process could assist in bringing that decision forward.

Further reform of the committal process is essential. While abolition is unlikely to be the answer, there is certainly a compromise that can be made to avoid wasting what are vastly becoming precious court resources, in a system that is built on a framework of justice delayed is justice denied.

Asher Flynn does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.


Bulgaria votes in tense election

Bulgarians have begun voting in a tight and tense snap general election marred by accusations of fraud and expected to result in political stalemate and fresh protests in the EU’s poorest member.

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Former bodyguard and ex-premier Boyko Borisov’s conservative GERB party is expected to win the most votes, even though the biggest demonstrations in 16 years forced his government to resign only three months ago.

But pre-vote opinion polls give GERB just 29-35 percent of the vote, well short of a majority and nowhere near enough for a repeat of Borisov’s previous minority government when his party was just four seats short of a being able to govern alone.

he last-minute opinion polls showed the socialist BSP party snapping at GERB’s heels on 25-32 percent, with some surveys putting them neck-and-neck and even suggesting the BSP might pull off a surprise, if slim, victory.

Either way, this will leave either party the tough task of fishing for coalition partners in a severely fragmented parliament that might include up to five other parties.

“At least a three-party coalition will be needed to form a government,” analyst Yuliy Pavlov from the Centre for Analysis and Marketing said.

The ultra-nationalist Ataka, which voted with Borisov’s minority government but which has now turned against him, seems set to enter parliament again, with polls giving it between six and nine percent.

The only other party certain to clear the four-percent threshold to enter parliament is the Socialists’ former coalition partner, the liberal Turkish minority MRF party, credited with between eight and 15 percent of the popular vote.

A potential kingmaker could be the new centrist formation DBG of ex-European commissioner Meglena Kuneva, polling at 3.0 to 6.5 percent, although it is unclear whom — if anyone — Kuneva might support.

WINTER OF DISCONTENT

The campaign has focused more on a wiretapping scandal than on the grinding poverty — almost a quarter of the population lives below the poverty line — that so angered Bulgarians over the winter.

Six people have died after setting themselves on fire in rprotest or despair

The failure by politicians to address ordinary Bulgarians’ top concern has added to apathy among the country’s 6.9 million voters, and to predictions that people will be out on the streets again before too long.

“I won’t vote. The whole thing is so rotten. We’ve been disappointed by all of them already,” Evelina Angelova, a 25-year-old mother-of-two who used to support GERB, told AFP.

Her husband is unemployed and the family survives on her monthly maternity allowance of 310 leva (158 euros, $205).

She fumed: “It’s just absurd. People will take to the streets again after the elections. I fear that we’re headed for civil war!”

Retired teacher Ivan Ivanov, 72, who survives on a pension of 272 leva, was more forgiving.

“It’s true that GERB did not do much for the people from a social point of view but at least they kept financial stability at this time of crisis,” he said.

“I’ll back them, hoping they’ll learn from their mistakes if they manage to form a government,” he shrugged.

Post-election stalemate is also the last thing needed by the Bulgarian economy, which grew just 0.8 percent last year and where foreign direct investment has slumped.

“We are running the serious risk of seeing massive pessimism and despair turn into active aggression on the streets,” political analyst Ognyan Minchev told the Presa daily in a recent interview.

Vote-buying and other election fraud concerns has also marred the campaign, prompting the Organisation for Security and Cooperation in Europe (OSCE) to dispatch its biggest monitoring mission to Bulgaria since 1990.

On Saturday prosecutors said they had seized 350,000 illegal ballot papers, prompting the head of the socialists, Sergey Stanishev, to accuse GERB is preparing for the “total falsification of the elections.”

Five parties — but not GERB — have also commissioned an independent parallel vote count, prompting analysts to fear that Bulgaria might see its vote results challenged for the first time since 1990.

The over 11,700 polling stations opened at 7:00 am (0400 GMT) and would close at 8:00 pm (1700 GMT), when pollsters give their first exit poll results.

The electoral commission is due to give first, even if only partial official results on Monday morning.

The expected turnout for the proportional representation vote to pick 240 lawmakers for a four-year mandate in the single-chamber parliament is about 50 percent.


France fears new serial killer after four murders

The latest killing on Thursday of a 47-year-old mother, shot dead near her home in the Essonne suburb, prompted Interior Minister Claude Gueant to vow every effort was being made to find the killer.

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All the victims were shot with the same small-calibre 7.65 mm weapon by a gunman who fled on a motorbike, recalling the methods of an Islamist extremist killed by police in southern France in March after murdering seven people.

While nothing suggests any political or religious motives in the shootings, police are probing any possible links with several other homicides in a 10-kilometre (six-mile) radius of the southern outer suburbs.

“That is a concern, but in any case, as in every criminal inquiry, we are putting every effort into finding out who is behind this,” Gueant said.

Local prosecutor Marie-Suzanne Le Queau told journalists the first killing was different from the others, although carried out with the same gun.

“The way of killing is not identical in the four cases,” Le Queau said, adding that around 100 investigators were working on the case and that identity checks in the area would be stepped up.

“In the first case, the victim was shot in the body several times while in the other three cases we have deaths caused by a shot to the head,” she said.

On Thursday, a woman of Algerian origin was shot dead in the foyer of her apartment block, part of a working-class housing estate in the Grande-Borne district of Grigny, south of the capital.

She was a widow who worked at Orly Airport and lived with her 18-year-old son.

“Everyone is in shock,” said one of her neighbours, who asked not to be named. “She didn’t feel threatened. She’s a normal person, simple, no history.”

She died in hospital after being shot with the small-calibre weapon, which is not widely used by the criminal milieu as it must be fired at relatively close range to be effective.

The first victim was a 35-year-old laboratory assistant who was also shot dead in her building in Grigny on November 27.

A man who said he was her ex-boyfriend turned himself in, was arrested and charged, but has since withdrawn his confession.

On February 22, one of the first victim’s neighbours, a 52-year-old man, was shot dead in their building’s car park.

Then, on March 19, an 81-year-old man was killed by a shot to the head with a weapon of the same calibre in the entrance to a similar block of flats in Grigny’s neighbouring suburb of Ris-Orangis.

“No link has been made between the four victims except for the fact that the second lived in the same building at the first,” Le Queau said.

Gueant noted the man arrested in connection with the first killing who was in jail during the latest attack.

“That said, this series is worthy of all our attention and we have put all our means at our disposal behind it,” Gueant said.

Last month, the southern city of Toulouse was shocked by a string of seven killings by Mohamed Merah, a 23-year-old Frenchman from an Algerian family who declared himself to be a supporter of the Al-Qaeda militant network.

Merah killed three off-duty paratroopers, three Jewish schoolchildren and a trainee rabbi before he was cornered in his apartment and killed in a shootout with police.


Old guard’s fresh face eyes Mexico poll win

Enrique Pena Nieto, the candidate polls say will be elected Mexico’s next president, wrapped up his national campaign with a colorful rally in the city that saw his political rise.

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Thousands of supporters dressed in red and white, the campaign colors, waved banners and chanted slogans in the main Toluca town square as their candidate vowed victory in Sunday’s presidential vote.

“We want a country at peace for all Mexicans, with safety and security,” Pena Nieto told a crowd packed into Toluca’s main square, who chanted “Enrique, Enrique!”

He called for a “new direction” for the country, “so that each Mexican family can obtain a higher income,” and promised more money for Mexican farmers, lower utility rates and an overhaul of the social security system.

“My priority will be to battle the poverty in our country at its roots,” he told the crowd.

But he not mention the violence plaguing the country, which has left more than 50,000 dead since President Felipe Calderon deployed the military to crack down on drug cartels in late 2006.

Pena Nieto is running well ahead in Wednesday’s latest polls – by law the final ones before the Sunday vote – which predict he will win by a 10-17 point margin over Andres Lopez Obrador from the leftist Party of the Democratic Revolution (PRD).

Josefina Vazquez Mota, bidding to be the Latin American nation’s first woman president, and who represents Calderon’s ruling conservative National Action Party (PAN), is running third with about 24 per cent support.

By law Calderon cannot run for re-election.

And Pena Nieto has presented himself as the fresh new face of the PRI, which governed Mexico for most of the 20th century and has been tainted by charges of corruption and cronyism.

The handsome, telegenic 45-year-old has run a model campaign, attracting a loyal fan base, appearing in photos with other youthful candidates – often women – and rubbing shoulders with local celebrities.

He is married to telenovela star Angelica Rivera, his second wife, star of Televisa’s hit soap “Distilling Love.”

One enthusiastic supporter, Margarita Hernandez, 47, and her group of female PRI loyalists made their feelings plain.

“Enrique, bombon, I want you on my mattress!” she cried out, smiling.

As soon as he finished speaking, a muscular fellow in a tight v-neck t-shirt jumped on stage to hug him. “Oooh, that’s Alejandro Fernandez!” cried out a middle-aged woman, referring to a well-known Mexican ranchera and pop singer.

Pena Nieto was returning home to Toluca, the capital of Mexico State for his final campaign stop, paying tribute to the city where he cut his teeth as a politician, eventually rising to become state governor in 2005.

He also married his second wife in Toluca cathedral, on the town square, the Martyr’s Plaza, named after independence war heroes executed there in 1811.

On Wednesday the cathedral’s giant bronze bells rang out every 15 minutes, loud enough to be heard above the music and speeches blasting from giant campaign speakers.

“For me, he is the candidate of unity, comradeship and victory,” said PRI loyalist Erick Aguila.

Aguila, 27, an economist by training, said he joined the party at age 18 after comparing the other political options. Now he actively supports local candidates in the nearby city of Metepec.

Pena Nieto “inspires me to continue working hard at a local level,” he said.

Toluca, population 800,000 and sitting some 2,600 meters (8,500 feet) above sea level west of Mexico City, was a backwater until the 1960s, when an industrial corridor opened and auto and textile factories moved in.


Study looks at discrimination on buses

Queensland University’s School of Economics sent 30 students of various ages and backgrounds to travel on 1,500 buses, using faulty travel cards and logged the reaction of bus drivers.

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Caucasians and Asians were treated similarly and were let on 72 to 73 per cent of the time, whereas those with dark skin only were let on the bus one in three times and Indians half of the time.

“It’s not as simple as pointing the finger at Caucasians and saying they are being nasty”, one of the authors of the study, Professor Paul Fritjers said.

“There’s clearly this dynamic going on, of the favoured in-group and the others catching up,” he said.

The students also had mixed experiences with drivers.

Sarahmiranda said, “It was just weird that she [the driver] checked my card when there were a lot of students getting on the bus [without being checked] and there were a lot of white-coloured skins.”

Professor Fritjers said the ethnicity of the driver was also taken into account.

“Asian bus drivers would heavily discriminate against the Indian and black testers, but not the [against] white testers, and the Indian bus drivers would discriminate against the black testers, but no one else, and the black bus drivers would discriminate against nobody,” he said.

Drivers were more inclined to wave passengers through if they were from their same ethnic group.

The findings did not come as a surprise to the ATSI Social Justice Commissioner, Mick Gooda.

“These studies prove we are not just being sensitive. These things are really happening,” he said.

How the subjects dressed also contributed to the likelihood of a free ride, with testers wearing a suit showing favourable results.

“If you want to be treated as an equal, you put on a business suit. If you want to be treated better than a white guy, you put on an army suit,” Professor Fritjers said.

The Brisbane City Council said that drivers shouldn’t be letting adults on without a valid travel card.

Two thirds of all testers were given free rides.