This week, the Victorian Government introduced a Bill into Parliament that is designed to abolish committal hearings. The CBA strongly opposes these reforms and supports the retention of committal hearings and particularly having the ability to cross-examine witnesses.

A committal hearing has traditionally served an important role within the criminal justice system and continues to do so.

The committal test – to determine whether there is evidence of sufficient weight to support a conviction for the offence charged – is a fundamental safeguard in our justice system and ensures that charges where a finding of guilt at trial is highly unlikely or impossible do not proceed to the trial Court. This saves alleged victims, witnesses and accused from unnecessarily undergoing the trial process.

The strength of any prosecution case only becomes apparent once witnesses are required to face cross-examination. It is at that crucial point that deficiencies in the evidence become apparent.

Once the evidence has been tested through cross-examination, if the prosecution case is strengthened, this encourages accused persons to make earlier offers to resolve charges to pleas of guilty. If the prosecution case is weakened, the prosecution may accept a plea to a lesser charge or a withdrawal or discharge of some or all charges may occur at this early stage.

Overall, contested committals and the current committal test aid in the early resolution of criminal cases and play an important role in the administration of justice. They increase both the efficiency and effectiveness of the justice system while maintaining fairness for all involved.

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In doing so it has resiled from its own carefully considered reform that was the product of extensive community consultation, including with experts who work within the criminal justice system and evidence based.

The recently adopted Youth Justice Bill 2024 is to be applauded for its commitment to diversion from the criminal justice system and focus on support, noting that many children who interact with the criminal justice system, and children with complex needs, have often had interactions with the child protection system.

However, the abandonment of the increase to the minimum age of criminal responsibility concerningly ignores a body of evidence, including from the United Nations Committee on the Rights of the Child. Nor does it promote the right of a child to protection in their best interests in s 17(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The Bar notes the disproportionate representation of Aboriginal and Torres Strait Islander children in custody, and is concerned that the announcement is contrary to important recommendations flowing from the Yoorrook Justice Commission’s truth-telling processes.

Any focus in the youth justice sphere should be on diversion, rehabilitation and support, including proper funding of education, treatment and support services to all Victorian children.

The Bar encourages the Government to reconsider its position and is committed to doing all that it can to support the reform.

https://www.vicbar.com.au/news-events/media-release-%E2%80%94-youth-justice-reforms

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The CBA notes that First Nations Australians are over-represented in the criminal justice system.  Our members support the practice of expressing acknowledgement of country as an appropriate mark of respect for First Nations people. We recognise that First Nations people continue to suffer disadvantage and vulnerability under the legal system and we are committed to ensuring that they are treated with fairness and dignity.

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The Criminal Bar Association is concerned by the decision of the Victorian Government not to implement proposed bail reforms for children. The changes previously proposed were intended to make bail laws fairer for children who are accused of committing criminal offences.

In addition to failing to introduce previously forecast reforms, the government has now announced a trial of electronic monitoring of some children on bail.

The likely result is that those children on bail who are required to wear an electronic monitoring device will be ridiculed and stigmatised.  Wearing an ankle bracelet will deter children from attending school and from participating in pro-social activities such as sport and other recreational activities. Further, electronic monitoring will likely impact upon a child’s ability to concentrate on and continue their education or uptake and maintain employment opportunities. All of these impacts will be detrimental to the rehabilitation of these children and, will likely hamper their ability to comply with their bail conditions.

It is important to note that electronic monitoring is rarely used with adult persons accused of offending who have been granted bail. To trial electronic monitoring on children, without a proper evidential foundation that it is effective even with mature offenders, is an excessive response that will likely prove entirely ineffective.

The Criminal Bar Association maintains the focus should be on assisting children on bail to avoid criminal pathways. This can be best achieved by proper funding of education, treatment and support services and greater access to such services for all children interacting with the criminal justice system. Such evidence-based measures are likely to be far more successful in the long term in steering children away from offending and ensuring they are rehabilitated, thus best providing for the protection of the community.

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To enter the Court to the front lobby area, please use the alternative entrance located on Lonsdale Street, next to the Court’s carpark. 

Please use the escalator to access the courtrooms on levels 1 and 2.

To access courtrooms on level 4 and above, please use the escalator to level 1 and take the lift to the required level.

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Following our recent AGM, the new CBA Committee for 2024 is constituted by:

Sally Flynn KC – Chair

Jason Gullaci SC – Vice Chair

Abbie Roodenburg – Secretary

Morgan Brown – Treasurer

Sharon Lacy SC

Paul Smallwood

Amanda Burnard

Felicity Fox

Amit Malik

Alexander Patton

Zubin Menon

Jo Swiney 

Christopher Wareham

Jim Shaw 

Sam Andrianakis 

Shaun Ginsbourg 

Susanna Locke 

Veronika Drago 

Members wishing to raise particular matters with the Committee are encouraged to contact:

• Magistrates’ Court: Sam Andrianakis, Christopher Wareham and Susanna Locke
  • County Court: Jim Shaw, Alex Patton and Morgan Brown
  • Supreme Court: Jason Gullaci SC, Sharon Lacy SC and Veronika Drago
  • Court of Appeal: Paul Smallwood, Christopher Wareham and Felicity Fox
  • OPP: Sally Flynn KC and Zubin Menon
  • VLA: Sharon, Amit Malik and Jo Swiney
  • Corrections Victoria: Abbie Roodenburg, Susanna Locke and Veronika Drago
  • CPDs: Jason Gullaci SC, Shaun Ginsbourg, Jo Swiney and Amanda Burnard
  • Wellbeing: Paul Smallwood

Preparation of submissions

The CBA is approached throughout the year to prepare submissions on various law reform agendas. The Committee will need the involvement of our members to assist with drafting submissions on behalf of the CBA in 2024. If you are interested in assisting, please contact Alex Patton.

Vacant Positions

The ACT is recruiting for a new DPP. Information about this role can be found on the attached document.

2024 Drinks

The CBA will organise Friday drinks in February to welcome the new legal year.  More details to follow early next year.

We look forward to representing our members over the next 12 months and wish you all a happy holiday season.

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As the Uluru Statement from the Heart recognised:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

The unacceptable over-representation of Aboriginal and Torres Strait Islander people in custody persists notwithstanding that more than 30 years have passed since the landmark final report of the Royal Commission into Aboriginal Deaths in Custody. That report examined the many ways in which our criminal justice system failed to deal justly with Aboriginal and Torres Strait Islander persons. It also examined the disadvantages that Aboriginal and Torres Strait Islander persons confronted, disadvantages that frequently continue to inform the prevailing circumstances when First Nations persons come before our criminal courts.

Whilst criminal justice primarily falls within the province of State legislatures, it does not do so exclusively. Moreover, the Commonwealth has wide scope to make laws on matters relating to, or which affect, Aboriginal and Torres Strait Islander persons. The Voice would provide a mechanism by which First Nations persons could communicate their views on such matters. The Victorian Criminal Bar Association – whose membership consists of barristers who prosecute criminal cases, barristers who defend persons charged with criminal offences and barristers who do both – considers that mechanism to be a fair and proportionate measure which has the very real potential to address injustices that are so often seen by those of us who practise in criminal law.

David Hallowes SC

Chair

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Sir David Carruthers, the Implementation Monitor of the Police Informants Royal Commission, has requested the Criminal Bar’s participation in a process about to commence to review the implementation of recommendations relating to disclosure by the Royal Commission into the Management of Police Informants. The review will use a case study approach that focuses on the mechanisms that support enduring change. 

In particular, assistance is sought to measure changes in disclosure practice. Of particular interest to the Implementation Monitor are changes associated with: 

·      Recommendations 62, 63 and 66 – including implementation of disclosure certificates and procedural improvements undertaken to improve Victoria Police’s ability to comply with disclosure obligations. 

·      Recommendation 67 – Court process to make non-disclosure orders and to conduct public interest immunity claims proceedings. 

Noting disclosure certificates only commenced in October 2022, the Implementation Monitor would be interested to understand if anyone has yet encountered a significant process where they were required. It is not the purpose of the consultation to discuss the material subject to disclosure, but instead interactions with the prosecution on how they discharged their disclosure obligation. 

Discussion topics will be provided beforehand and consultation discussions will not exceed 45 minutes. 

The preferred consultation period is up until 6 April 2023. 

Could any member wishing to participate in the consultation discussions please contact me by email (smallwood@vicbar.com.au) as soon as possible so that a time can be arranged. 

The case study discussion paper – “Creating enduring change: Disclosure practices in the criminal justice system” – is attached. 

The recommendations made by the Royal Commission are available here (link: https://www.rcmpi.vic.gov.au/summary/recommendations). 

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The following information has been provided:

Recent high-profile sexual assault trials have highlighted the numerous problems that all participants in the criminal trial process encounter when prosecuting this type of crime. 

We are keen to explore the challenges in the management of sexual assault trials, beginning with reporting the crime through to appealing jury verdicts. 

Australian and international perspectives will be discussed. 

Practitioners and researchers, if you have a unique perspective and you would like to share at the conference, please email the relevant details, including a summary of your proposed contribution and a brief CV to Associate Professor Horan (Jacqui.Horan@monash.edu) before 6 March 2023. Registration details are forthcoming.

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