I spent a large part of the last week in courtroom 2 of the Alice Springs Magistrates Court sitting through a complex committal hearing into the murder of a local man earlier this year.

In the Northern Territory — as is common in other Australian jurisdictions apart from Western Australia and Tasmania where committal hearings have been effectively abolished — an accused person facing serious charges will be presented to a magistrate who will decide, on the basis of the prosecution evidence, whether that evidence is “sufficient to put the defendant on his trial”.

Reform to the committal process in all Australian jurisdictions has been a popular political topic in recent years. And the NT government, as is often the case, has been slow in turning it’s mind to this reform process.

Earlier this year the NT Attorney-General, Delia Lawrie, referred the issue of reform of the committals process to the local Law Reform Committee. The committee delivered its Report in September.

Earlier this month, Lawrie issued a Press Release that advised that the NT government would adopt all 14 of the committee’s recommendations, saying that:

“The committee … has recommended that hand up or paper committal hearings become mandatory,” Ms Lawrie said … currently witnesses maybe required to give oral evidence at both the committal and at a trial.

“As well as being inconvenient, this also increases the trauma for victims, may deter witnesses from giving evidence and could affect the reliability of evidence from witnesses from a non-English speaking background.

“Using written evidence at the committal stage won’t impact on the delivery of justice but will streamline the court process as well as reduce the impact on victims and witnesses.

“The Northern Territory will adopt a similar system where a witness can only be cross-examined at a committal hearing if where the prosecution consents or if the defendant successfully applies to the court to do so,” she said.

Few here disagree with the notion that some aspects of the committal process in the NT needed some reform.

But more than a few lawyers — particularly defence lawyers — reckon that the changes recommended by the committee and to be implemented by Lawrie in the middle of next year could have serious consequences for their clients rights and for the effective administration of criminal justice in the NT.

Glen Dooley is the principal legal officer at the North Australian Aboriginal Justice Agency (NAAJA) that provides criminal and civil legal services across the Top End of the NT. Mark O’Reilly is Dooley’s equivalent at the Central Australian Aboriginal Legal Aid Service (CAALAS), based in Alice Springs.

Between the two agencies they act for the largest proportion of criminal defendants in the NT — Aboriginal people that represent 80% of the NT’s prison population but are just over 30% of the population.

Crikey spoke with Dooley and O’Reilly earlier this week.

Both were on the sub-committee that prepared the Law Reform Committee’s Report. Both disagree with many of the recommendations made by the committee. Both feel that their clients, and the administration of justice in the NT will be poorly served by the changes proposed by the report and adopted by Lawrie.

Their concerns are based in part upon the nature of the proposed changes, the impact that they may have on their clients’ access to justice and the likelihood of substantial disruption to the efficient administration of criminal justice in the NT.

Dooley told Crikey that he had very real concerns at the quality of evidence that would be put to the court in the new “paper committals”, noting that in the NT there is:

“… a culture among police of producing witness statements from Aboriginal witnesses that in the main are often barely able to speak English. But if you read their statements you’d think that they were year-12 graduates because basically the police have written the statements for the witnesses … every single committal involving an Aboriginal witness that you go to you will find that the police have paraphrased the witness to such a degree that their statements are very suspect.”

O’Reilly also referred to problems with police witness statements taken from Aboriginal people, noting that protections demanded in other areas of the law are often lacking in the taking of police statements:

“… they are often taken without the assistance of an interpreter and they can be taken at remote locations by police with varying degrees of experience. Often they are just a reflection of the police officer’s view of what may have happened. We get in trouble all the time from judges for leading Aboriginal witnesses and the whole concept of gratuitous concurrence, well that happens when statements are taken from people as well.’

O’Reilly noted that the proposed committal reforms will substantially remove an important opportunity to test the veracity of witnesses:

“… in this jurisdiction, often your witnesses, the key witnesses are illiterate. They often have English as a second language. They are often drunk at the time things happen. So stories can be about what actually happened can be very fluid and there is a need for a process that tests that version of events.”

And Dooley is brutally frank about Lawrie’s claims of increased efficiency in the system:

“These reforms will make the whole system of committals and trials more expensive and the idea that by moving to paper committal that they are going to be faster and will going to move through the system quicker and that there will be less delay is absolute bullsh-t. It is arguable that there will now be a bigger bottleneck in the Supreme Court — which is less able to deal with matters quickly than the Magistrates Court.”

O’Reilly echoes Dooley’s concerns:

“Committals in Alice Springs get part-heard all the time — you will start a proceeding in the Magistrates Court, then stop and resume with a witness the next week. That just doesn’t happen with the Supreme Court — you are going to have a jury involved — that is problematic.

“One way or the other usually the facts get sorted out at the committal — without that process you are going to have more disputed-facts pleas in the Supreme Court. I think we are really going to end up with a process that is going to clog up the Supreme Court.”

Peter Fray

Save up to 50% on a year of Crikey.

This extraordinary year is almost at an end. But we know that time waits for no one, and we won’t either. This is the time to get on board with Crikey.

For a limited time only, choose what you pay for a year of Crikey.

Save up to 50% or dig deeper so we can dig deeper.

See you in 2021.

Peter Fray
Editor-in-chief of Crikey

SAVE 50%