New Zealand Law Commission
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171 IN INDICTABLE CASES (cases where an information is laid
indictably or where a defendant elects trial by jury) a preliminary hearing is conducted under the Summary Proceedings Act 1957. This hearing is a means of establishing whether a prima facie case exists, that is, whether the evidence is sufficient to put the defendant on trial. If there is a prima facie case the defendant is committed for trial; if not, the defendant is discharged. Thus the primary justification for preliminary hearings is to act as a filter protecting defendants from unwarranted prosecutions, and preventing the expense of unwarranted trials.
172 Today, parties can agree that some or all evidence at the preliminary hearing may be given in writing without the need to call witnesses. If all the evidence consists of written statements, a defendant who is represented may agree to waive the hearing and accept committal for trial.
173 The prosecution is not obliged to accept committal on the papers and may prefer to call its witnesses. In Phillips v Drain, the Court of Appeal acknowledged that there can be legitimate tactical advantages for the prosecution (such as testing whether the witnesses ‘come up to brief’) in hearing witnesses give evidence, and be cross-examined, at a preliminary hearing. If the prosecution can establish its case without calling all available witnesses it may do so. However, in R v Haig, the Court stated that the prosecution should, wherever possible, call all the witnesses at depositions it intends to call at trial. That is because, in practice, preliminary hearings have important consequential effects, principally that of informing the defence of the strength of the prosecution case. When a witness gives oral evidence and is cross-examined, both prosecution and defence are able to assess the witness’s credibility. Some defence counsel assert that hearing witnesses give oral evidence can help convince the defence of the strength of the prosecution case, facilitating early guilty pleas. Conversely, some defence counsel consider that police briefs of evidence are not infrequently overwritten, and consequently prosecution witnesses do not come up to brief. Defence counsel believe that it is essential to their clients to have this information at a pre-trial stage. The ability to hear and to cross-examine witnesses at preliminary hearings may also provide the basis for a later section 347 Crimes Act 1961 application, which unlike discharge at a preliminary hearing acts as a complete acquittal.
174 Preliminary hearings may be conducted by Justices of the Peace or Community Magistrates, except in the case of sexual offences where Part VA of the Summary Proceedings Act 1957 requires a District Court judge to preside. There is a rebuttable presumption in serious sexual cases that a complainant will give a written statement only and not be examined or cross-examined on it. Over half of all preliminary hearings proceed on the papers without any oral evidence.
175 The Discussion Paper considered the topic of preliminary hearings and concluded that these hearings continue to perform a number of useful functions and should be retained for the present. But this does not mean that there is no need for reform in this area.
Law Commission’s 1990 report and proposals for change
176 In our 1990 Report, Criminal Procedure: Part One: Disclosure and Committal (the ‘1990 Report’), we concluded that the preliminary hearing was not achieving its central purpose of acting as an effective filter. We identified two reasons. First, most hearings are before lay Justices of the Peace (and, now, Community Magistrates) who may feel unqualified to put an end to the prosecution even though they will be aware that a second and similar charge could then be proffered. Secondly, to a large extent the discharge at the preliminary hearing stage has been made redundant by the ability to have a final discharge under section 347 of the Crimes Act 1961. The 1990 Report recommended that prosecution evidence should be presented in the form of a written statement except with the leave of a District Court, on application by either party or of its own motion. Cross-examination would be allowed only by leave, and for limited practical reasons. The grounds for authorising personal attendance of a witness would be that the witness:
• is to give evidence concerning identification of the defendant;
• is to give evidence of an alleged confession of the defendant;
• is alleged to have been an accomplice of the defendant; or
• has made an apparently inconsistent statement.
177 Of the 11 written submissions to the Commission that commented on preliminary hearings, none favoured outright abolition. Indeed some, notably the New Zealand Law Society, were opposed to any modification of the present system.
The 1997 Disclosure Consultation Paper
178 In 1996 the Department for Courts circulated a draft paper that contained options for either abolishing or restricting preliminary hearings. The Commission responded to that paper. We favoured restricting preliminary hearings in the way outlined in the 1990 Report, rather than abolishing them. We were also concerned that the Department for Courts had not considered criminal disclosure in tandem with preliminary hearings. In November 1997 the Ministry for Justice and the Department for Courts distributed a consultation paper on proposed changes to preliminary hearings and criminal disclosure (the ‘Disclosure Consultation Paper’). The Commission made a detailed submission on the proposals based on its recommendations in the 1990 Report and on its further thinking. The Ministry of Justice will report to the Minister with final reform proposals during 2000.
179 The Disclosure Consultation Paper’s preferred reform option reflected that in the Commission’s 1990 Report, but with two important additions. First, it recommended that in addition to one of the four grounds being made out, the witness’s evidence must be required in the circumstances. This is to ensure that the purpose of establishing a prima facie case remains the central focus of the preliminary hearing, and the Commission agrees that this should be the predominant factor. Secondly, the Disclosure Consultation Paper recommended a further exceptional circumstances category where oral evidence could be heard at the preliminary hearing. This category is intended to cover quite exceptional cases where oral evidence is needed because an issue of the credibility of the evidence of a witness is raised, or where a reluctant witness has refused to provide a signed written statement.
‘Exceptional circumstances’ or ‘interests of justice’?
180 The Commission agrees that it is important to be able to call witnesses in the four situations recommended in the Disclosure Consultation Paper. It also acknowledges that, while it is important for the court to retain flexibility in deciding which witnesses should be required to give oral evidence, it is also important that legislation gives the court some guidance. Therefore, the Commission proposes a different formulation of a fifth category. Rather than exceptional circumstances, it should be if it is in the interests of justice for the witness to give oral evidence.
181 Judges are very familiar with enquiries turning upon the interests of justice. This flexible test focuses upon the basic goals of criminal justice and is considered daily in many contexts within the criminal jurisdiction of the courts. The same cannot be said for an exceptional circumstances test that sets a rigid and high threshold. An interests of justice category is wide enough to cover the two situations of concern to the Ministry of Justice and the Department for Courts. It also meets the Commission’s concern to allow cross-examination of specific witnesses where the witness might be an important source of information for the defence or prosecution beyond a mere brief of evidence.
Who should be able to require a witness to present oral evidence?
182 The Disclosure Consultation Paper suggested that only the defence should be able to apply to have a witness present oral evidence. The Commission stands by its 1990 Report view, and believes that either party should be able to apply to have a witness give oral evidence, or that the court may require it on its own motion.
183 The Commission believes it is important for the prosecution as well as the defence to be able to call a witness to give oral evidence at a preliminary hearing for two reasons. First, the prosecution will at times have reluctant, but potentially crucial, witnesses from whom they have not been able to get a statement. Secondly, the prosecution may be better able to assess whether the proper charge has been laid. For example, in one case known to the Commission the prosecution at the preliminary hearing, of its own motion, called a large number of witnesses to a pub brawl in which there were a number of stabbings and one death, because until these witnesses had been questioned it was unclear whether the accused should stand trial for murder, or manslaughter.
184 The Commission believes that if an application is opposed by the other party, the decision whether a witness should be required to give oral evidence should be made by a District Court judge. However, if both parties consent to the witness being called,
a Registrar of the Court should have the power to grant the necessary order.
185 The Disclosure Consultation Paper suggested that in cases where a District Court judge has granted leave for a witness to give oral evidence and be cross-examined generally the evidence should be heard before Justices of the Peace. (Since the Disclosure Consultation Paper was written, Community Magistrates have been created and also given jurisdiction to conduct preliminary hearings.) The Commission agrees that such evidence should normally be heard before Justices or a Community Magistrate. In cases involving particular difficulty, either party can apply to have the preliminary hearing conducted before a District Court judge.
186 The Commission believes that there is no compelling reason why a District Court judge who has heard oral evidence at the preliminary hearing should not preside over the subsequent trial, although section 28C of the District Courts Act 1947 currently precludes this. The current restriction on judges presiding over both the preliminary hearing and subsequent trial stems from the concern to ensure the appearance of fairness to the accused. However, we consider there are strong countervailing reasons that negate this concern:
• the judge does not determine the facts, or the guilt or innocence of the accused;
• at present the trial judge is permitted to hear and decide pre-trial applications, during which the judge may make an adverse credibility finding of the accused. If this practice is acceptable, there is even less objection to a judge presiding over both the preliminary hearing, and the trial;
• administrative difficulties arise in smaller centres that have only one District Court judge with a warrant to conduct jury trials.
Accordingly, the Commission recommends that section 28C of the District Courts Act 1947 be repealed.
187 It is the Commission’s view that the provisions of Part VA of the Summary Proceedings Act 1957 (relating to the evidence of complainants in cases of serious sexual offending) should not be affected by its recommendations on preliminary hearings. The Disclosure Consultation Paper on the other hand noted “that victims of alleged sexual offending have significant special protection”, but made no mention of those special protections when outlining the preferred option. The Commission believes that the special protection currently afforded to complainants in cases of serious sexual offending must continue, despite the recommendations outlined here.
188 The Commission recommends that the government introduce a preliminary hearings bill that:
• takes account of the Commission’s 1990 draft legislation amending the Summary Proceedings Act 1957;
• requires that in committal proceedings prosecution evidence should be presented in written form; and that an application to hear the oral evidence of a witness, and to cross-examine, may be granted to either party only if:
(a) the witness is to give evidence concerning identification of the defendant; or
(b) the witness is to give evidence of an alleged confession of the defendant; or
(c) the witness is alleged to have been an accomplice of the defendant; or
(d) the witness has made an apparently inconsistent statement; or
(e) it is in the interests of justice for the witness to be required to give oral evidence.
AND in each of (a)–(e) the evidence of the witness is required to establish a prima facie case.
The Commission believes these provisions recognise legitimate ancillary and historic uses of preliminary hearings.
189 The Commission recommends that defended applications to give oral evidence in preliminary hearings should be heard by a District Court judge, but that oral evidence should continue to be heard by Justices of the Peace or Community Magistrates, except where the complexity of the case requires a District Court judge. The same District Court judge should be permitted to hear both the application to have oral evidence presented, and the preliminary hearing itself.
190 The Commission recommends that any amendments to the conduct of preliminary hearings should not affect the provisions of Part VA of the Summary Proceedings Act 1957, which gives explicit special protection to complainants of serious sexual offending.
191 The Commission draws attention to another recommendation in this report that will affect the conduct of preliminary hearings. The Commission recommends that Crown Solicitors should have oversight of all indictable proceedings once a plea is entered, or the defendant has elected trial by jury. Crown Solicitors, or counsel appointed by them, would conduct the preliminary hearing at the election of the police, where the nature of the case makes that level of representation desirable. Efficiencies gained from the proposed changes restricting preliminary hearings will be further enhanced by earlier Crown Solicitor oversight of prosecution cases (see paragraphs 91–97).
192 The Commission reiterates that preliminary hearings should not be amended in isolation from the introduction of a criminal disclosure statutory regime (see chapter 8). This is because of the important role that the preliminary hearing plays in uncovering the prosecution’s case. Any loss of such an advantage by the restriction in the availability of oral evidence and opportunities to cross-examine prosecution witnesses at preliminary hearings, as a matter of right, should be offset by an effective criminal disclosure regime.